United States Specific Terms

Scope, contracting party and precedence

The Service is provided to US Accounts solely by JIVSoft S.A., a company organized under the laws of the Republic of Ecuador. No affiliate, reseller or US entity of JIVSoft S.A. is a party to the Agreement. JIVSoft S.A. does not represent that Customer Data will be stored or processed within the United States; Customer Data may be stored and processed in Ecuador, the United States or other countries where JIVSoft S.A. or its subprocessors operate, as described in the Data Processing Agreement (https://live.jivsoft.com/en/data-processing).

For US Accounts: Sections 7 and 8 of these US Terms replace Sections 14 (Disclaimers) and 15 (Limitation of liability) of the Agreement; Sections 13 and 14 of these US Terms replace Section 18 (Governing law and dispute resolution) of the Agreement; and the remaining Sections of these US Terms supplement the Agreement. All other terms of the Agreement, the Acceptable Use Policy, the Data Processing Agreement, the Privacy Policy and the Refund Policy continue to apply.

Business use only

The Service is offered only to healthcare professionals, clinics and other businesses for business and professional purposes. It is not offered to consumers or for personal, family or household purposes. By creating or using a US Account, Customer represents and warrants that it is acquiring and using the Service for a business or professional purpose, and that the individual accepting the Agreement is at least 18 years old and is authorized to bind Customer.

Patients and other individuals who interact with Customer through the Service (for example, through the public booking page) are Customer’s patients or contacts, not customers of JIVSoft S.A.. Customer is solely responsible for its relationship with them.

HIPAA and Protected Health Information

Customer must not upload, store, transmit or otherwise process “Protected Health Information” as defined in 45 C.F.R. 160.103 (“PHI”) in or through the Service unless and until Customer and JIVSoft S.A. have executed a separate written Business Associate Agreement signed by an authorized representative of JIVSoft S.A. (a “BAA”). Accepting the Agreement online, starting a free trial or paying a subscription does not create a BAA. JIVSoft S.A. has no obligation to offer or execute a BAA, and any BAA it agrees to applies only to the accounts and services expressly identified in it. Requests may be sent to support@jivsoft.com.

If no BAA is in effect, Customer represents and warrants that (a) it is not a “covered entity” or “business associate” as those terms are defined in 45 C.F.R. 160.103 with respect to any information it processes in the Service, or (b) it will not use the Service to create, receive, maintain or transmit PHI. Customer is solely responsible for any PHI processed in breach of this Section 3, and Customer will defend and indemnify JIVSoft S.A. against any third-party claim, fine or penalty arising from it, in accordance with Section 13 of the Agreement.

Absent a BAA, JIVSoft S.A. makes no representation that the Service, or Customer’s use of it, complies with the Health Insurance Portability and Accountability Act of 1996, the HITECH Act or their implementing regulations (together, “HIPAA”), and JIVSoft S.A. does not act as Customer’s business associate. Where a BAA is in effect, JIVSoft S.A.’s HIPAA obligations, including notification of breaches of unsecured PHI and of security incidents, are only those set out in the BAA and those that HIPAA imposes directly on business associates; in the event of conflict between the BAA and the Agreement regarding PHI, the BAA prevails.

Customer remains responsible for its own HIPAA compliance, including its risk analysis, the configuration of user accounts, roles and permissions, its notices of privacy practices, patient authorizations, and responding to patient requests to exercise HIPAA rights.

Other US health information laws

Substance use disorder records. Customer must not use the Service to store or process records subject to 42 C.F.R. Part 2 (Confidentiality of Substance Use Disorder Patient Records) unless JIVSoft S.A. has expressly agreed in writing to process such records and to any terms that Part 2 requires.

FTC Health Breach Notification Rule. The Service is a practice-management tool used by healthcare professionals and is not offered by JIVSoft S.A. to individuals as a personal health record. If Customer is a vendor of personal health records or a PHR related entity subject to the FTC Health Breach Notification Rule (16 C.F.R. Part 318), Customer is responsible for its own obligations under that Rule, and JIVSoft S.A., to the extent it acts as Customer’s third party service provider under that Rule, will notify Customer of a breach of security of unsecured PHR identifiable health information as that Rule requires. The Rule does not apply to HIPAA covered entities or to entities acting as their business associates.

State health data laws. Customer is responsible for determining whether state laws on medical, consumer health, biometric or genetic information apply to its use of the Service and for obtaining any consents and providing any notices they require.

US state privacy laws

To the extent the California Consumer Privacy Act, as amended by the California Privacy Rights Act (Cal. Civ. Code 1798.100 et seq.), or any similar US state consumer privacy law applies to personal information that JIVSoft S.A. processes on Customer’s behalf, Customer is the “business” or “controller” and JIVSoft S.A. acts as Customer’s “service provider”, “contractor” or “processor”. In that capacity JIVSoft S.A. will: (a) process such personal information only for the limited and specified business purpose of providing, securing and supporting the Service as described in the Agreement and the Data Processing Agreement; (b) not sell or share (including for cross-context behavioral advertising) such personal information; (c) not retain, use or disclose it outside the direct business relationship with Customer or for any purpose other than those permitted by the Agreement or by law; (d) not combine it with personal information received from other sources, except as permitted by applicable law; (e) comply with the applicable obligations of such laws and provide the same level of privacy protection they require; (f) notify Customer if it determines that it can no longer meet those obligations; and (g) permit Customer to take reasonable and appropriate steps to stop and remediate unauthorized use of such personal information.

Customer is responsible for providing all notices, obtaining all consents and honoring all requests required by such laws with respect to its patients and contacts. JIVSoft S.A. will provide reasonable assistance as described in the Data Processing Agreement.

Patient communications: TCPA and CAN-SPAM

Customer controls whether, when and to whom the Service sends appointment reminders and other messages by WhatsApp, text message or email, and Customer is the sender of those messages. Customer is solely responsible for complying with the Telephone Consumer Protection Act (47 U.S.C. 227) and its implementing rules, similar state laws, and the policies of the messaging channels used (including Meta’s WhatsApp policies), including obtaining and documenting the consent each recipient must give before receiving messages, honoring opt-out and revocation requests promptly, and respecting applicable calling-time restrictions.

Customer must not use the Service to send commercial or marketing email unless it complies with the CAN-SPAM Act (15 U.S.C. 7701 et seq.), including accurate header and subject information, identification of the message as an advertisement where required, a valid physical postal address, and a functioning opt-out mechanism whose requests are honored within the legally required period.

Disclaimers

NOT A MEDICAL DEVICE. THE SERVICE, INCLUDING ANY AI-GENERATED CONTENT, TEMPLATES, CALCULATIONS AND PRESCRIPTION OR CERTIFICATE DOCUMENTS, IS AN ADMINISTRATIVE AND DOCUMENTATION TOOL. IT IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, MITIGATE OR PREVENT ANY DISEASE OR CONDITION, HAS NOT BEEN CLEARED OR APPROVED BY THE U.S. FOOD AND DRUG ADMINISTRATION, AND IS NOT INTENDED TO BE USED AS A MEDICAL DEVICE OR AS CLINICAL DECISION SUPPORT. ALL CLINICAL DECISIONS, ORDERS AND DOCUMENTS ARE THE SOLE RESPONSIBILITY OF CUSTOMER AND ITS LICENSED PROFESSIONALS, WHO MUST INDEPENDENTLY REVIEW ANY OUTPUT BEFORE RELYING ON IT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE FREE TRIAL, ALL CONTENT AND ALL THIRD-PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, JIVSoft S.A. AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. JIVSoft S.A. DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT ANY DATA WILL NOT BE LOST OR CORRUPTED, THAT MESSAGES WILL BE DELIVERED, OR THAT AI-GENERATED OUTPUT WILL BE ACCURATE OR COMPLETE.

Customer acknowledges that WhatsApp, text message, email, payment gateway, AI and cloud services are provided by third parties outside JIVSoft S.A.’s control, and that electronic invoicing features are designed only for Ecuador’s SRI and are not intended for US tax reporting.

Limitation of liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL JIVSoft S.A. OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA, OR COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SERVICE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF JIVSoft S.A. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JIVSoft S.A.’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT AND THE SERVICE WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO JIVSoft S.A. FOR THE SERVICE DURING THE 3 MONTHS IMMEDIATELY BEFORE THE EVENT GIVING RISE TO THE FIRST CLAIM. IF CUSTOMER HAS PAID NOTHING (INCLUDING DURING A FREE TRIAL), JIVSoft S.A.’S TOTAL LIABILITY WILL BE ZERO, EXCEPT WHERE APPLICABLE LAW REQUIRES OTHERWISE. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.

THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, ARE REFLECTED IN THE FEES, AND WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. They do not limit liability that cannot be limited or excluded under applicable law (such as, where the law so provides, liability for fraud, gross negligence or willful misconduct), and they do not limit Customer’s obligation to pay fees due under the Agreement.

Taxes

Fees are stated in US dollars and exclude taxes. Whether US sales, use, gross receipts or similar taxes apply to software as a service varies by state and locality. Customer is responsible for all such taxes, duties and levies applicable to its purchase or use of the Service (other than taxes on JIVSoft S.A.’s net income), including any tax that Customer must self-assess and remit, such as use tax.

JIVSoft S.A. is a non-US company that performs the Service outside the United States. Payments must be made without any deduction or withholding. If deduction or withholding is required by law, Customer will increase the amount paid so that JIVSoft S.A. receives the full amount it would have received absent the deduction or withholding, and will provide official receipts. On request, JIVSoft S.A. will provide a completed IRS Form W-8BEN-E or other form reasonably required to reduce or eliminate withholding.

Export controls and sanctions

Customer will comply with all applicable US export control and economic sanctions laws, including the Export Administration Regulations (15 C.F.R. Parts 730-774) and the regulations administered by the Office of Foreign Assets Control of the US Department of the Treasury (“OFAC”, 31 C.F.R. Chapter V).

Customer represents and warrants that neither Customer nor any of its users or owners is (a) located in, organized under the laws of, or ordinarily resident in a country or region subject to comprehensive US sanctions or embargoes; (b) identified on, or owned 50% or more, individually or in the aggregate, by persons identified on, OFAC’s Specially Designated Nationals and Blocked Persons List or any other US government restricted-party list; or (c) otherwise the target of US sanctions. Customer will not access, use, export or re-export the Service, or permit any user to do so, in violation of these laws or for any prohibited end use. JIVSoft S.A. may suspend or terminate any US Account immediately if it reasonably believes this Section has been breached. This Section supplements Section 19 of the Agreement.

Electronic contracting and notices

Customer agrees that its acceptance of the Agreement by clicking, checking a box, creating an account or using the Service constitutes its electronic signature and has the same effect as a handwritten signature, and that the Agreement and all notices may be provided electronically, in accordance with the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7001 et seq.). Customer consents to receive notices by email to the account owner’s address and by notice within the Service; such notices are effective when sent. Customer may download and print the Agreement at any time from https://live.jivsoft.com/en/terms.

Notices to JIVSoft S.A., including dispute and arbitration opt-out notices, must be sent by email to support@jivsoft.com.

US Government end users and copyright complaints

The Service and its documentation are “commercial products”, “commercial computer software” and “commercial computer software documentation” developed exclusively at private expense. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, as applicable, US Government end users acquire the Service only with the rights granted to all other customers under the Agreement. Any provision inconsistent with federal procurement law does not apply to a US Government end user to the extent of the inconsistency.

If you believe that content made available through the Service infringes your copyright, send a notice to support@jivsoft.com that includes: your physical or electronic signature; identification of the copyrighted work; identification of the allegedly infringing material and where it is located in the Service; your contact information; a statement that you have a good-faith belief that the use is not authorized by the copyright owner, its agent or the law; and a statement, under penalty of perjury, that the information in the notice is accurate and that you are authorized to act on behalf of the owner. JIVSoft S.A. may remove or disable access to the material and may terminate accounts of repeat infringers.

Governing law

The Agreement and any dispute arising out of or relating to it or to the Service are governed by the laws of the Republic of Ecuador, without regard to its conflict-of-laws rules, except that the Federal Arbitration Act (9 U.S.C. 1 et seq.), including Chapter 2 implementing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, governs the interpretation and enforcement of Section 14. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

Dispute resolution and binding arbitration

PLEASE READ THIS SECTION CAREFULLY. IT REQUIRES CUSTOMER AND JIVSoft S.A. TO RESOLVE DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, AND IT WAIVES THE RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION.

(a) Informal resolution. Before starting arbitration, a party must send the other a written notice describing the dispute, the relief sought and its contact details (for JIVSoft S.A., by email to support@jivsoft.com; for Customer, to the account owner’s email). The parties will attempt in good faith to resolve the dispute for 30 days after the notice is received. Any applicable limitation period is tolled during this 30-day period.

(b) Arbitration. Any dispute, claim or controversy arising out of or relating to the Agreement or the Service, including its formation, validity, interpretation, performance, breach or termination and the arbitrability of any dispute (a “Dispute”), that is not resolved informally will be finally resolved by binding arbitration administered by the International Centre for Dispute Resolution (“ICDR”) of the American Arbitration Association under its International Arbitration Rules in effect when the demand is filed. The arbitration will be conducted in English by a single arbitrator. The seat of arbitration will be Machala, Ecuador, unless the parties agree otherwise in writing; hearings may be held by videoconference. The arbitrator may award any relief available to an individual party under applicable law, but only in favor of the individual party seeking relief and only to the extent necessary to resolve that party’s individual claim. The award will be final and binding, and judgment on it may be entered in any court of competent jurisdiction.

(c) Exceptions. Either party may (i) bring an individual claim in a small claims court of competent jurisdiction, provided it remains there and is pursued only on an individual basis; and (ii) seek temporary, preliminary or permanent injunctive relief, or other equitable relief, in any court of competent jurisdiction to protect its intellectual property rights or Confidential Information or to prevent unauthorized use of the Service, without first complying with paragraph (a).

(d) CLASS ACTION WAIVER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS OR PRESIDE OVER ANY FORM OF CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING, EXCEPT AS PROVIDED IN PARAGRAPH (f).

(e) JURY TRIAL WAIVER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY DISPUTE, INCLUDING ANY DISPUTE THAT PROCEEDS IN COURT.

(f) Coordinated filings. If 25 or more demands for arbitration that raise substantially similar Disputes are filed against JIVSoft S.A. by or with the assistance of the same or coordinated counsel or organizations, the demands will be administered in batches of up to 25 demands each, with one arbitrator appointed per batch, and only one batch will proceed at a time; the remaining demands will be held in abeyance, with any limitation period tolled, until each prior batch is resolved. The parties will cooperate in good faith with the ICDR to implement this process, and to the extent any fee schedule permits, fees will be assessed per batch. A party may ask a court of competent jurisdiction to enforce this paragraph.

(g) Opt-out. Customer may opt out of paragraphs (b), (d) and (f) by sending an email to support@jivsoft.com within 30 days after Customer first accepts the Agreement, stating Customer’s legal name, the account email and that Customer opts out of arbitration. If Customer opts out, Disputes will be resolved exclusively by the courts of Machala, Ecuador, and paragraph (e) will continue to apply. Opting out does not affect any other provision of the Agreement.

(h) Severability. If the class action waiver in paragraph (d) is found unenforceable as to any claim or form of relief, that claim or relief will be severed and decided by a court of competent jurisdiction under paragraph (g) after all other claims are arbitrated, and the waiver will be enforced to the greatest extent permitted. If any other part of this Section 14 is found unenforceable, the remainder will continue to apply. This Section 14 survives termination of the Agreement.

Changes to these US Terms

JIVSoft S.A. may update these US Terms in accordance with Section 17 of the Agreement. A change to Section 14 will not apply to any Dispute of which JIVSoft S.A. received notice before the change takes effect.