THIS END USER LICENSE AGREEMENT (THE “LICENSE AGREEMENT”) IS BETWEEN YOU (“USER,” “YOU,” OR “YOUR”) AND IGNITEU INC, DBA: IDEAL MEDICAL AESTHETICS (“COMPANY”), AND GOVERNS YOUR USE OF COMPANY SOFTWARE AND SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS LICENSE AGREEMENT AND MAY NOT USE THE SOFTWARE AND SERVICES. BY ACCEPTING THIS LICENSE AGREEMENT, EITHER BY CLICKING A BOX OR ICON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDERING DOCUMENT THAT REFERENCES THIS LICENSE AGREEMENT, YOU AGREE TO THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT IS EFFECTIVE BETWEEN YOU AND COMPANY AS OF THE DATE OF YOU ACCEPT THIS LICENSE AGREEMENT.
1. DEFINITIONS
In addition to the terms defined elsewhere in this License Agreement, the following capitalized and underlined terms shall have the meaning set forth in this Section 1 for purposes of this License Agreement:
“Company Materials” shall mean the Company Software (as defined herein), any manuals, instructions, documentation, data, or other information provided in connection with the Company Software and Services (as defined herein), all content and data made available through the Company Software and Services, all technologies, developments, materials, and inventions associated with the Company Software and Services, and all plans, reports, metrics, data, and information provided or used by Company in connection with the Company Software and Services.
“Company Software” shall mean the software that Company makes available to User and all items of documentation relating to the Company Software provided by Company, along with any updates, fixes, or modifications provided by Company.
“Data” shall mean all data or digital information input into the Company Software. Data shall also include any information provided by User to Company in connection with Your use of the Company Software and Services, including, without limitation,, name, address, email, phone number, login credentials, audiovisual recordings, and questionnaire answers. Data may be collected by third-party hardware and services and received by the Company Software for processing. For the avoidance of doubt, Data includes Registration Data (as defined herein).
“Services” shall mean the provision of and making available for access by User the Company Software through Your login credentials, along with the features, functionality, and services available through the Company Software.
2. SERVICES
2.1 Company Software. Subject to the terms and conditions of this License Agreement, Company hereby grants You a personal, non-transferable, non-exclusive, non-sublicensable, and limited right and license to access and use the Company Software during the Term (as defined herein).
2.2 Services. Subject to the terms and conditions of this License Agreement, Company hereby authorizes You to access and use the Services Company supplies or makes available to You, through the use of Your individual login credentials, including Your username and password during the Term. This authorization is non-exclusive and non-transferable. You will be responsible for any loss, theft, or misuse of Your login credentials and/or username or password.
2.3 Changes to Company Materials and Services. Company reserves the right, in its sole discretion, to make any changes to the Company Materials, Company Software and Services that Company deems necessary or useful to maintain or enhance the quality, delivery, competitive strength, efficiency, and performance of the Company Materials, Company Software, and Services, or to comply with applicable laws. You are solely responsible for providing, maintaining, and ensuring compatibility with the access requirements for the Company Software or Services, and all hardware, software, electrical or other physical requirements for use of the Company Software or Services, including, without limitation, mobile devices, telecommunications and internet access, connections, web browsers or other equipment, programs and services required to download, access, and use the Company Software or Services.
3. PROPRIETARY RIGHTS
Company owns all right, title, and interest in and to the Company Materials and Services, including the Company Software, any documentation provided by Company to User, all upgrades and modifications thereof, and all associated intellectual property rights, including, without limitation, (a) any patent, copyright, trade secret, trademark, and other proprietary rights, in and to the Company Materials, Company Software, and Services, any documentation, or upgrades or modifications thereof, and (b) any modifications, corrections, bug fixes, updates, improvements, and enhancements to the Company Materials and Services, including the Company Software, any documentation, or upgrades or modifications thereof. User may not copy or distribute the Company Materials and Services, including the Company Software or any part thereof, electronically or otherwise, for any purpose.
4. COLLECTED AND GENERATED DATA
The parties acknowledge that You will provide and generate Data in connection with Your use of the Company Software and Services. This Data may include different types of information relating to You during Your use of the Company Software and Services. In order to access and utilize the Company Software and Services, You hereby agree to the following:
4.1 Grant of License. You hereby grant to Company (to the extent of Your rights therein, if any) a non-exclusive, royalty-free, worldwide, perpetual right, and license to collect, host, use, modify, adapt, copy, store, transmit, adapt, de-identify, reproduce, process, aggregate, and analyze the Data as permitted by applicable law, both during and after the Term of this License Agreement.
4.2 Company Use of Data. Pursuant to the license granted herein, Company may use and disclose Data provided and generated by You: (a) to provide the Company Software and the Services to You; (b) to improve the Company Software and Services and Company’s other products and services; (c) if required by applicable law, where necessary to enforce this License Agreement and/or to protect any of Company’s or other parties’ legal rights, (d) in an aggregated form which does not include Your identifying information, and (e) as otherwise permitted by Company’s Privacy Policy.
5. GENERAL TERMS OF USE
All access to the Company Software and Services shall be limited to You individually and You agree to access and use the Company Software and Services shall be in accordance with the following:
5.1 Registration of Account. As part of accessing the Company Software or Services, You shall create an account (Your “Account”). The security and confidentiality of Your Account username and password are Your sole responsibility. You shall ensure that no unauthorized person shall have access to Your Account, username, or password and shall immediately notify Company of any unauthorized access or use of which You become aware. You agree to bear all responsibility and liability for all actions under or through Your Account as well as all fees and/or charges incurred from the use of Your Account, whether authorized or unauthorized. You may update Your Account by changing the Account settings.
5.2 Registration Data. All of Your Data provided to Company in connection with registering for Your Account (“Registration Data”) must be true, accurate, current, and complete at all times. You must immediately update Your Registration Data to keep it true, accurate, current, and complete. If You provide Company with Your email address, You hereby consent to and authorize Company to (a) send notices regarding the Company Software or Services to such email address, instead of notice by other means such as mail, and (b) send other messages to such email address, such as changes to features of the Company Software or Services and special offers (collectively, “Other Messages”). If You do not want to receive Other Messages, You may opt out in Your Account settings. Opting out of receiving Other Messages may prevent You from receiving email messages regarding updates, changes to the Company Software or Services, or offers.
5.3 Permitted Uses. You shall access and use Company Software and Services for the sole purpose of supporting the provision of aesthetics education, procedural training, and consultations with licensed medical providers, support staff, or prospective patients as part of Your internal business purposes.
5.4 Prohibited Uses. In addition to uses otherwise prohibited by Company, You shall not:
(a) Access or use the Company Software or Services if You are under eighteen (18) years old;
(b) Access or use the Company Software or Services for the benefit of any third parties or provide access or use of the Company Software and Services to third parties;
(c) Transfer or share usernames and passwords assigned to authorized users;
(d) Directly or indirectly sublicense, assign, transfer, sell, rent, lend, lease, or otherwise provide the Company Software or Services or any portion thereof, including, without limitation, any documentation, to any third-party, including, without limitation, for any revenue-generating activities;
(e) Translate, modify, reverse engineer, disassemble, decompile, or make any attempt to ascertain, derive, or obtain the source code (or underlying ideas, algorithms, structure or organization), for the Company Software or Services;
(f) Remove, modify, or obscure any patent, copyright, trademark, or other proprietary rights notices, or legends contained in or affixed to the Company Software and Services, including, without limitation, output, metadata file, or online or hard-copy attribution page with any data;
(g) Remove, use, copy, or access any data, content, or materials for any purpose or in any manner other than real-time viewing (which prohibits, for example, screenshots, downloading, and storing) unless expressly permitted by the features of the Company Software or Services, such as downloading a copy of a consultation record;
(h) Access or use the Company Software or Services by artificial means or in a manner that, in Company’s sole discretion, would inflict an excessive load on Company’s or its suppliers’ hardware or software;
(i) Post, upload, or transmit: (i) any data, content, or materials meant to market or advertise services or products that are competitive with the Company Software or Services, solicit any other Users of the Company Software or Services for such purposes, and/or use data, content, or materials gathered from the Company Software or Services for such purposes, (ii) any data, content, or materials of any type that infringe or violate any rights of any party, including, but not limited to, any patent, copyright, trademark, trade secret, or any proprietary or other right of Company or a third-party, (iii) any data, content, or materials that are illegal, threatening, obscene, defamatory, harmful, invasive to privacy, or otherwise violate the rights of Company or a third-party, and/or (iv) any disabling code (defined as computer code designed to interfere with the normal operation of the Company Software or Services or Company’s or a third-party’s hardware or software) or any program routine, device, or other undisclosed feature, including, but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with, or otherwise harm the Company Software or Services or Company’s or a third-party’s hardware or software;
(j) Use the Company Software or Services for any benchmarking, monitoring, or testing availability or performance, or any other competitive use, including, but not limited to, creating services, products, or software that are substantially similar to the Company Software or Services;
(k) Test the vulnerability of the Company Software or Services;
(l) Use the Company Software or Services in a manner that violates any applicable international, federal, state, or local law or regulation relating to individual privacy, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (45 C.F.R. §§160‒164) (“HIPAA”); and
(m) Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Company Software or Services, or which, as determined by Company, may harm Company or Users of the Company Software or Services or expose them to liability.
6. EARLY ADOPTERS.
You may wish to use a version of the Company Software either during the beta testing of such version or after the initial beta testing has been completed, but before such version has been determined to be ready for production use and is generally available to Company’s customers as a final product (the “General Release”). In consideration of Company permitting this pre–General Release access and use of such version of the Company Software by You, You agree that You understand and accept the terms of this Services Agreement specifically applicable to the pre-General Release use of Company Software and the risk of the following potential issues prior to the General Release of such version: (a) any programming issues which may cause errors and require correction; (b) any problems associated with installation, use, education, and support processes that have not been defined, refined, or documented; and (c) issues regarding the accuracy, completeness, or usefulness of the Company Software’s content. In the event that any of the foregoing issues do occur, Company and You agree to act in a commercially reasonable and good faith manner to identify and correct such issues. The foregoing shall be deemed to be the only warranty on such version of the Company Software until the date of its General Release. In consideration of Your pre-General Release use of the Company Software, You agree to (a) provide Company with constructive input regarding the installation, use, education, support processes and any refinements that may be necessary to improve the Company Software, content, or the processes associated with it. Company reserves the right in its sole discretion to withdraw its plans to make a specific version of the Company Software generally available to its customers, including You, based on the results of its beta testing; and (b) that You are not entitled to any refund of any Subscription Fees (defined herein), taxes, or other costs paid in associate with obtaining access to Company Software and Services that may be available to other customers who purchase or subscribe to our Services upon General Release.
7. THIRD PARTY CONTENT AND PRODUCTS
The Company Software and Services may contain links to third-party content and other third-party websites that are not owned or controlled by Company. Links are provided to online Users solely as a convenience, and Company’s inclusion of such links does not imply any endorsement of the information by Company. You acknowledge and agree that Company has no control over such sites and resources, is not responsible for the availability of such sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, features, services, information, or other materials on or available from such sites or resources, or any websites that they may link to (collectively, “Third-Party Content”). Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any Third-Party Content.
Access to the Company Software and Services may include hardware, software, and other proprietary materials from Company’s third-party suppliers that are subject to license rights, terms and restrictions (collectively, “Third-Party Licenses”). In such event, Your rights to the Company Software and Services are expressly subordinate and subject to the Third-Party Licenses and You must comply with Third-Party Licenses. If Company’s rights provided by a third-party supplier are limited, suspended, or terminated for any reason, Your rights shall also be so limited, suspended, or terminated. To the extent of any conflict between the terms of this Services Agreement and the terms of a Third-Party License, the terms of the Third Party-License shall control with respect to the applicable third-party product.
8. TERM AND TERMINATION
8.1 Term. The term of this License Agreement begins on the date that You accept the License Agreement (or a document incorporating this License Agreement by reference) by signature, click-through, or use. Unless terminated earlier as set forth below, the License Agreement will continue in effect until the end of the applicable subscription term stated in the applicable subscription agreement (the “Subscription Agreement”) signed or otherwise executed by You (such period, the “Term”).
8.2 Termination. In addition to any other express termination right set forth elsewhere in this License Agreement, Company may terminate this License Agreement immediately, effective on the date written notice is sent to You, if You materially breach any provision of this License Agreement, including without limitation, any of Your obligations under Section 5.4 or Section 9.
9. PAYMENT TERMS
9.1 Subscription Fees. Company will provide the Services to You at the rates and for the fees set by Your Subscription Agreement (the “Subscription Fees”), which are hereby incorporated by reference into this License Agreement and may be modified from time to time. You acknowledge that a portion of the Subscription Fees includes certain fees charged by third-party licensors, and Company may, fin its sole discretion, change any or all of the Subscription Fees at any time; provided, however, that Company will use commercially reasonable efforts to provide You with at least thirty (30) days’ notice before any changes to the Subscription Fees become applicable to You (or a longer period of notice if required by applicable law). You shall pay Company all Subscription Fees, as provided in this License Agreement, and Your obligation to pay amounts owed to Company for Services rendered will survive the expiration or termination of this License Agreement for any reason.
9.2 Taxes. The Subscription Fees under this License Agreement are exclusive of all taxes, including national, state, or local taxes, if any, including, without limitation, sales, use, rental receipt, personal property, customs duties, or levies or other taxes, which may be levied or assessed in connection with this License Agreement. Unless You are a tax exempt entity and provide Company with reasonable documentation demonstrating Your tax-exempt status, You agree to bear and be responsible for the payment of all taxes, except for taxes based upon Company’s income. You shall pay such tax when due or reimburse Company, as applicable.
10. CONFIDENTIALITY
As a result of the relationship created between Company and User by this License Agreement, each party acknowledges that User may become privy to secret or confidential information concerning trade secrets, know how, software programs, source code, executable code, object code, algorithms, business, products, technical data, documentation, specifications, activities, processes, technology, drawings, flow charts, diagrams, customers, suppliers, contracts, finances, personnel, research, plans, business strategies and plans, policies, inventions, confidential information of customers, or other intellectual property, including, without limitation, any invention, writing, idea, discovery, or improvement made or conceived by Company, that is in the possession of and disclosed by Company and received by User, regardless of how the same is disclosed, delivered, obtained, or discovered, whether verbal or written, pursuant to this License Agreement, (collectively, the “Confidential Information”), the dissemination of which might prove harmful to Company. User agrees that he or she shall not, directly or indirectly, at any time either during the continuation of or following termination of this License Agreement disclose or use the Confidential Information of Company: (a) other than for the purpose of fulfilling his or her obligations under this License Agreement; (b) except to the extent required by applicable law; and (c) except where the Confidential Information has become publicly available through no fault of User. User shall return all such Confidential Information and all copies or recordings of the same to Company immediately upon the request of Company or the termination of this License Agreement.
11. REPRESENTATIONS AND WARRANTIES
11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it has the full power and authority to enter into this License Agreement and perform its obligations under this License Agreement; and (b) the execution, delivery, and performance of this License Agreement by either party does not violate, conflict with, or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable law, regulation, or order of any court or other tribunal.
11.2 Your Representations and Warranties. You further represent and warrant that: (a) this License Agreement constitutes a legal, valid, and binding obligation enforceable against You in accordance with its terms, subject to the principles of equity, bankruptcy, insolvency, reorganization, and other laws affecting creditors’ rights generally; (b) Your agreement to this License Agreement and performance or compliance with the terms of this License Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third-party under any license, sublicense, lease, contract, agreement, or instrument to which You or Your affiliates are bound or to which Your properties are subject; (c) You are the lawful owner of any Data submitted by You, or to the extent You are not the lawful owner, You have all rights necessary for You to provide, upload, make available, submit, and license it as specified herein; (d) Your submitted Data will not violate or in any way infringe on any patent, copyright, trade secret, trademark, intellectual property, or other rights of a third party; (e) You have all necessary rights and licenses to any hardware not provided by Company that You use in connection with the Company Software and Services; (f) You will not authorize any third-party or person to use and/or access the Company Software and Services through Your login credentials; and (g) You will comply with all other obligations and restrictions with respect to the use of the Company Software and Services as set forth herein.
11.3 DISCLAIMER. EXCEPT AS SET FORTH IN THIS LICENSE AGREEMENT, COMPANY IS PROVIDING THE COMPANY SOFTWARE, SERVICES, AND DELIVERABLES “AS IS.” COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPANY SOFTWARE AND SERVICES OR THEIR PERFORMANCE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, COMPANY DOES NOT WARRANT THAT THE COMPANY SOFTWARE OR SERVICES WILL MEET USER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, OR SYSTEM. WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR ANY DEFICIENCIES IN PERFORMANCE OF THE SERVICES ATTRIBUTABLE TO INTERNET FUNCTIONALITY, A FORCE MAJEURE EVENT, USER’S NETWORK OR ACCESS TO THE INTERNET, OR THE ACTS OR OMISSIONS OF USER OR ANY AUTHORIZED PERSONNEL.
12. INDEMNITY
12.1 Intellectual Property Indemnification. Company shall indemnify and defend User against any third-party claims that Company Software, during the Term, infringes any United States patent or registered copyright. In the event a court of competent jurisdiction makes a determination, or Company reasonably believes, that there is a potential that Company Software infringes any United States patent or registered copyright, Company, at its option and expense, shall: (a) modify the infringing portion of the Company Software so as to make it non-infringing; (b) replace the infringing portion of the Company Software; (c) obtain for User the right to continue using the infringing portion of the Company Software; or (d) terminate this License Agreement with respect to the infringing portion of the Company Software, in which case User shall cease using the infringing portion of the Company Software. Company shall have no liability to indemnify and defend User to the extent (a) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of User, or (b) User uses the Company Software other than in accordance with this License Agreement. The foregoing indemnification obligations are conditioned upon User: (a) notifying Company promptly in writing of any claim or action pursuant to which User is requesting indemnification; (b) giving Company sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Company’s request, assisting in such defense or settlement. This Section states Company’s entire liability and User’s sole and exclusive remedy for claims relating to infringement.
12.2 Disclaimer of Medical Indemnification. Company’s indemnity and defense obligations shall not apply to any medical malpractice claim, damage, loss, or liability.
12.3 User Indemnification. User shall defend, indemnify, and hold Company and its affiliate(s), and their respective directors, trustees, officers, agents, employees, or assigns, harmless from and against any and all claims, demands, losses, liabilities, and expenses (including reasonable attorneys’ fees) to the extent arising out of, resulting from, or caused by: (a) the Data, including, without limitation, any claim that the Data infringes the rights of a third party; (b) User’s use of the Company Software and Services that exceeds the scope of the license granted in the License Agreement; (c) a breach or alleged breach of any representation or warranty of User under this License Agreement; (d) User’s violation of applicable law in relation to this License Agreement; or (e) injury to person or property arising from acts of negligence, bad faith, willful misconduct, or reckless disregard by User relating to this License Agreement. The foregoing indemnification obligations are conditioned upon Company providing User notice of any claim, by a third party, that may be subject to indemnification under this License Agreement. Within a reasonable time after learning of any such claim, User shall provide Company with User’s good-faith evaluation of the claim.
13. LIMITATION OF LIABILITY
You acknowledge and agree that (a) You are solely responsible and liable for ensuring You do not engage in any prohibited use of the Company Software or Services, including but not limited to ensuring You are appropriately licensed as a healthcare professional in Your jurisdiction and that any training is within Your scope of practice; (b) Company does not control the acts, omissions, policies, or procedures of other Users of the Company Software or Services. Without limiting the foregoing, You understand the risks associated with the access to and use of the Company Software or Services and any data, content, and materials made available through the Company Software or Services, and acknowledge that You are using the Company Software or Services and such other data, content, and materials at Your own risk and that You are personally responsible for verifying their suitability for Your needs through Your own investigation. To the maximum extent permitted by law, Company is not liable for, and You hereby waive, release, relinquish, and forever discharge Company, its employees, members, managers, governors, suppliers, agents, contractors, affiliates, representatives, successors, and assigns (collectively, the “Company Parties”), from any and all claims, counterclaims, demands, causes of action, suits, liabilities, injuries to person or property (including, but not limited to, death, incapacity and disability), damages, losses, costs and expenses, whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect, arising out of or relating to (i) Your access to and use of the Company Software or Services, and (ii) Your access to and use of any data, content, and materials made available through the Company Software or Services. You agree not to sue Company and the Company Parties, or assist any other person or entity in any suit against Company and the Company Parties, with respect to any matters released in this Section. The terms of this release shall also apply to any of Your relatives, next of kin, heirs, beneficiaries, employers, successors, or assigns who assert or attempt to assert any claims on Your or their behalf.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, AND LOST BUSINESS OPPORTUNITIES, WHETHER THE OTHER PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. COMPANY’S LIABILITY ARISING OUT OF ITS PERFORMANCE UNDER THIS LICENSE AGREEMENT SHALL BE LIMITED TO FIVE HUNDRED DOLLARS ($500).
14. MEDICAL DISCLAIMER
USER ACKNOWLEDGES AND AGREES THAT THE COMPANY SOFTWARE IS NOT A DIAGNOSTIC TOOL AND THAT COMPANY IS NOT INTENDING TO, OR ENGAGING IN THE PERFORMANCE OR DELIVERY OF PROVIDING MEDICAL OR HEALTH CARE SERVICES OR ADVICE. ALL DECISIONS REGARDING THE DIAGNOSIS, TREATMENT, PLAN OF CARE FOR, AND BILLING OF PATIENTS SHALL AT ALL TIMES BE AND REMAIN THE SOLE RESPONSIBILITY OF USER AND ITS AUTHORIZED USERS. THE COMPANY SOFTWARE SHOULD IN NO CASE BE DEEMED OR TREATED AS A RECOMMENDATION, ENDORSEMENT, GUARANTEE, OR WARRANTY OF THE PROFESSIONAL SERVICES OF ANY AUTHORIZED USERS OR OTHER PROVIDERS WHO RENDER HEALTH CARE SERVICES. THE COMPANY SOFTWARE IS NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL JUDGMENT IN PATIENT DIAGNOSIS OR TREATMENT. COMPANY DOES NOT WARRANT OR GUARANTEE THAT ANY MEDICAL SUBJECT MATTER OR OTHER INFORMATION THAT MAY BE INCLUDED IN ANY DOCUMENTATION, TEMPLATE, REPORT, OR OTHER OUTPUT GENERATED FROM THE COMPANY SOFTWARE OR OTHERWISE MADE AVAILABLE BY COMPANY IS ACCURATE, COMPLETE, CURRENT, OR FIT FOR ANY PURPOSE WHATSOEVER. BY PROVIDING THE COMPANY SOFTWARE AND/OR MAKING ANY SUCH INFORMATION AVAILABLE, COMPANY IS NOT PROVIDING MEDICAL ADVICE AND NEITHER USER NOR ITS AUTHORIZED USERS SHALL RELY ON THE COMPANY SOFTWARE OR ANY SUCH INFORMATION AS A MEANS OF DIAGNOSIS OR TREATMENT OF PATIENTS OR AS A SUBSTITUTE FOR MEDICAL ADVICE. FURTHER, COMPANY SHALL NOT BE RESPONSIBLE FOR ANY MEDICAL SERVICES PROVIDED BY OR FOR USER OR ANY OF ITS AUTHORIZED USERS, AND USER AND ALL AUTHORIZED USERS SHALL MAINTAIN ALL USUAL AND CUSTOMARY PROFESSIONAL LICENSES AND MEDICAL LIABILITY AND MALPRACTICE INSURANCE TO COVER THE PROVISION OF HEALTH CARE AND MEDICAL SERVICES, INCLUDING THOSE DELIVERED IN CONNECTION WITH THE COMPANY SOFTWARE. NOTWITHSTANDING THE FOREGOING, USERS THAT ARE USING THE COMPANY SOFTWARE SOLELY FOR PERSONAL PURPOSES AT THE DIRECTION OF A MEDICAL PROFESSIONAL DO NOT NEED TO MAINTAIN ANY LICENSE OR MEDICAL LIABILITY AND MALPRACTICE INSURANCE.
15. MISCELLANEOUS PROVISIONS
15.1 Force Majeure. Any loss, damage, or delay in, or failure of, performance by Company shall not constitute a default hereunder, be a ground for termination of this License Agreement, or give rise to any claims for damage against Company if such loss, damage, delay, or failure is attributable in whole or in part to any cause beyond the reasonable control of Company (each, a “Force Majeure Event”). A Force Majeure Event can include, without limitation, acts or omissions of User causing delay, acts of God or the public enemy, compliance with any order, decree, or request of any governmental authority, fires, floods, explosions, accidents, riots, strikes, labor difficulties, or other concerted acts of workmen, power failure or any other cause not within the reasonable control of Company.
15.2 Assignment. This License Agreement may not be assigned by User without the prior written consent of Company.
15.3 Governing Law; Venue. This License Agreement shall be construed in accordance with the laws of the State of Washington without giving effect to the choice or conflicts of law provisions thereof. The parties agree that any legal proceedings which arise under this License Agreement shall be brought in the state or federal courts in King County, Washington. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this License Agreement.
15.4 Miscellaneous Terms. Section headings are used for convenience only and shall in no way affect the construction or interpretation of this License Agreement. In the event any provision of this License Agreement is deemed by any court of competent jurisdiction to be unenforceable, illegal, or contrary to public policy, the provision found to be unenforceable, illegal, or contrary to public policy shall be stricken and the remainder of the License Agreement shall remain in force. This License Agreement and any attachments hereto constitute the entire agreement and understanding of the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, whether oral or written. Failure of either party at any time or from time to time to exercise any right under this License Agreement shall not be deemed a waiver of such right, nor shall it prevent the party from subsequently asserting or exercising such right. The parties acknowledge, confirm, and agree that they are independent contractors and this License Agreement is not intended to create a joint venture, association, partnership, franchise, principal/agent relationship, or other form of business or relationship. No party will have, nor hold itself out as having, any right, power, or authority to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party or to act on behalf of the other party in any capacity or in any manner.
BY CLICKING-THROUGH THIS LICENSE AGREEMENT OR OTHERWISE AGREEING BY USE, YOU HEREBY AGREE THAT YOU HAVE REVIEWED, UNDERSTAND, AND AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, AND TO THE EXTENT APPLICABLE, FURTHER AGREE TO ENSURE THAT EACH OF USER’S EMPLOYEES AND OTHER END USERS DO THE SAME.
Attached notice for click-thru format:
NOTICE: PLEASE READ THE TERMS AND CONDITIONS OF THE END-USER LICENSE AGREEMENT BEFORE PROCEEDING. BY CLICKING “I ACCEPT,” YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THE END-USER LICENSE AGREEMENT, WHICH GOVERNS YOUR USE OF THE COMPANY SOFTWARE AND SERVICES. IN PARTICULAR, BY CLICKING “I ACCEPT,” YOU ACKNOWLEDGE AND AGREE TO THE FOLLOWING:
