End User License Agreement
By clicking the "Accept" button, you ("Licensee") hereby agrees to the following license terms and conditions for using certain Software as defined herein. This is a license agreement ("Agreement") with Scientific Technologies Corporation, ("STC") and you should not click on the "Accept" button unless you agree to the terms set forth herein. Further, it is Licensee's sole responsibility to check back for updates to this Agreement and any continued use of the Software after a particular update shall be considered assent to the new terms and any revisions in this Agreement.
- "Employer" shall be any organization that has an underlying license agreement for the Software that provides Licensee access to the Software to enable Licensee to perform duties as party of Licensee's employment or contractual relationship with the organization.
- "Software" shall mean any and all (i) source code and object code provided to Licensee in the MyIR® program and related derivative works, (ii) related documentation, developer's notes and database schema including instruction manuals, if any, provided or made available to Licensee by STC or Employer, (iii) and patentable subject matter whether or not it is set forth in a patent application, any patents, trademarks, copyrights, trade secrets and other intellectual property rights associated therewith (collectively "Intellectual Property"), and (iv) any copies (both electronic and paper) of the foregoing.
- LICENSEE RIGHTS AND RESTRICTIONS.
- Grant of License. Subject to Licensee's strict compliance with the terms and conditions of this Agreement, STC hereby grants to Licensee a non-exclusive, non-transferable, limited license to use the Software for its intended purpose of accessing personal immunization records.
- Restrictions, Requirements of Use, and Releases.
- Except as expressly provided in Section 2.1, no other license or right in the Software is granted to Licensee under this Agreement directly or by implication or otherwise. Without limiting the generality of the foregoing and notwithstanding anything to the contrary in this Agreement, Licensee may not:
° Remove any copyright notice, proprietary information notices, or other notice;
° Assign, sublicense, lease, or in any other way transfer or disclose the Software to any third party;
° Use the Software for any commercial use or use not specifically sanctioned by Employer;
° Use the Software that violates any applicable law or Employer's policies;
° Reproduce or use any part of the Software, compiled application, or use the Software except as provided in this Agreement;
° Reproduce, modify, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form; or
° Share, disseminate, or otherwise disclose any immunization records or other information, including information protected by the Health Insurance Portability and Accountability Act ("HIPAA") with any third party not authorized to receive such information.
- The restrictions set forth in Section 2.2 shall apply equally to attempts to perform the restricted activities, regardless of whether or not any such attempt is successful.
- By using the Software, Licensee agrees to release and hold harmless STC, any participating health care provider that provides immunization data to any application immunization information system, and any operator of any application immunization information system from any and all liability for the accuracy of the information Licensee receives through the Software, for any failure to receive immunization information, delays in receiving the immunization information, and any deviations or errors in the immunization system, and any actions based on the information received that may be taken by the Licensee. Actions include, but are not limited to, seeking and receiving immunizations based on the information provided to Licensee through your use of the Software.
- By using the Software, Licensee agrees to:
° Provide complete and truthful information for Licensee or any other person that Licensee is authorized to act for in using the Software.
° Receive unsolicited notifications from STC and other third parties with whom STC has a relationship with.
- Confidentiality and Passwords.
- Licensee agrees and acknowledges that the Software is: (i) proprietary to STC; (ii) is of significant value to STC; (iii) is not publicly available; (iv) contains trade secrets of STC; and (v) constitutes the confidential information of STC. Licensee shall not disclose how the Software operates, the content of the Software, and data associated with the Software including all information covered by the Health Insurance Portability and Accountability Act ("HIPAA") to any third person not authorized to receive such information.
- Licensee acknowledges that access to the Software will be obtained by a unique username and/or password (collectively "Password") that will be assigned to Licensee by Employer or STC. Licensee agrees to not share the Password with any third party (including others employed by or associated with Employer) and not provide any third party access to the Software with Licensee's Password. Should Licensee become aware that his or her Password has become lost or is otherwise in the public domain, Licensee will provide notice to Employer or STC within one (1) day of Licensee becoming aware of such an event so Licensee's Employer or STC can delete access to the Software with Licensee's old Password and provide Licensee a new Password. Licensee expressly acknowledges that he/she is solely responsible for safeguarding all Passwords and you agree to hold harmless STC, any participating health care provider that provides immunization data to any application immunization information system, and any operator of any application immunization information system from any and all liability related to lost Passwords, access to the Software by unauthorized users, or immunization data being compromised in any way due to Licensee not adhering to the terms of this Agreement.
- Injunctive Relief. Licensee acknowledges and agrees that STC will suffer irreparable damage in the event of a breach by Licensee of the terms of Section 2.3 of this Agreement and that STC will be entitled to injunctive relief in the event such breach can be proven by STC to have caused actual damages to STC.
- INTELLECTUAL PROPERTY.
- Existing Intellectual Property. As between the parties, STC is and shall be the exclusive owner of all right, title and interest in and to (i) the Software (including source code and object code), and (ii) all patent, copyright, trademark, trade secret, and any and all other Intellectual Property and proprietary rights existing now and in the future, whether or not registered or perfected (but to the extent existing, all registrations, applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force), and whether arising by operation of law, contract, or otherwise (collectively, "Intellectual Property Rights") in and to the foregoing. The Software is protected by copyright and other applicable laws, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Licensee may not copy or use the Software except as permitted herein. Licensee agrees not to modify, adapt or translate the Software except as permitted herein. Any information or documentation supplied by STC or otherwise obtained by Licensee in connection with or as a result of this Agreement may only be used by Licensee for the purpose described herein and may not be disclosed to any third party (except as permitted herein) or used to create any software which is substantially similar to the Software. By "substantially similar Software," the parties acknowledge that software that is configured to store and manage medical records is "substantially similar Software."
- WARRANTY, WARRANTY DISCLAIMER, AND LIMITATION OF LIABILITY.
- Warranty Disclaimer. Except as specifically set forth above and as between the parties, no further warranty of any kind is being provided by STC, including, without limitation, any warranty that the Software shall be free from defects in design, material or workmanship. LICENSEE ASSUMES TOTAL RESPONSIBILITY FOR THE USE OF THE SOFTWARE AND THE SOFTWARE IS PROVIDED ON AN "AS-IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE SOFTWARE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND WHETHER ARISING UNDER LAW OR FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE (COLLECTIVELY, "DISCLAIMED WARRANTIES"), INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED BY STC AND FOREVER WAIVED BY LICENSEE. NO ADVICE OR INFORMATION GIVEN BY STC, ITS AFFILIATES OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE A WARRANTY OR OBLIGATION OF STC.
- Limitation of Liability/Waiver. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, STC SHALL NOT BE LIABLE TO LICENSEE, AND LICENSEE COVENANTS THAT IT WILL NOT ASSERT A CLAIM AGAINST STC, UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE PROVIDED BY STATUTE OR LAW, (i) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR STATUTORY DAMAGES, OR ANY DAMAGES RESULTING FROM LOST PROFITS, OR INTERRUPTION OF BUSINESS, EVEN IF STC HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. FURTHER, LICENSEE HEREBY WAIVES, RELEASES, AND FOREVER DISCHARGES STC, ANY PARTICIPATING HEALTH CARE PROVIDER THAT PROVIDES IMMUNIZATION DATA TO ANY APPLICATION IMMUNIZATION INFORMATION SYSTEM, AND ANY OPERATOR OF ANY APPLICATION IMMUNIZATION SYSTEM RELATED TO THE PROVISION OF INFORMATION TO LICENSEE THROUGH THE SOFTWARE.
- Basis of Bargain. The parties hereby acknowledge and agree that the warranty disclaimers and limitation of liability provisions set forth above have been negotiated and are fundamental elements of the basis of this Agreement, and STC would not be able to provide the licenses granted herein on the other terms and conditions currently offered without such limitations. The parties further agree that such provisions will inure to the benefit of the other party's successors and permitted assigns.
- Licensee Representations and Warranties. Licensee represents and warrants that he/she is lawfully entitled to receive and be in custody of the immunization records of the person or persons to which Licensee is requesting. Licensee expressly acknowledges that any false assertions to STC or others that lead to the disclosure of immunization records to Licensee that Licensee is not authorized to have constitutes fraud and is punishable under applicable law.
- TERM AND TERMINATION.
- Term. The term of this Agreement and the licenses granted herein shall begin on the effective date of this Agreement and shall continue as long as Licensee is using the Software or until the earlier termination of this Agreement pursuant to the provisions set forth herein.
- Event of Default. An event of default ("Event of Default") under this Agreement occurs when either party breaches a condition of this Agreement and fails to cure said breach within 10 (ten) days of receiving notice of said breach.
- Termination Upon Event of Default. If an Event of Default occurs, the non-breaching party (or STC in the event of an Event of Default pursuant to Section 5.2 may, in its sole discretion, terminate this Agreement by giving written notice of such termination to the other party. In such event, the non-terminating party shall pay to the terminating party all costs and expenses (including reasonable legal fees and costs and fees of collection agencies, if any) incurred by the terminating party in connection with such termination.
- Termination for Convenience. STC may disable Licensee's access to the Software at any time, for any reason without notice to Licensee and terminate this Agreement for Convenience. The date the access to the Software is disabled is the date of termination.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, Licensee shall immediately: (i) cease all use of the Software; and (ii) within thirty (30) days of the date written notice was received pursuant to Section 5.3 or the expiration date, return all Passwords associated with the Software.
- Indemnification. Licensee shall, except to the extent caused by STC's gross negligence or willful misconduct, indemnify and hold harmless STC, and all its officers, directors, employees and agents, for any losses, claims, damages, judgments, assessments, costs and other liabilities, including reasonable out-of-pocket costs and expenses as they are incurred by STC in connection with any demands, law suits and other legal actions by third parties against STC arising out of or alleged to arise out of (i) any gross negligence or willful misconduct by or of Licensee, its agents or licensees, or (ii) any breach by Licensee of any term or provision of this Agreement.
- Assignment. Licensee may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of STC. Any attempted assignment without such prior written consent shall be void and shall enable STC the ability to terminate this Agreement. STC may assign all or part of this Agreement immediately, without the prior written consent of Licensee.
- Dispute Resolution. The parties agree to attempt to resolve any dispute concerning this Agreement through good faith negotiations and mediation. In the event that the parties cannot resolve the dispute the dispute through such mediation, the parties agree to submit their dispute to binding arbitration before a single arbitrator, pursuant to the existing rules of the American Arbitration Association, with procedures to be mutually agreed upon by the parties. The arbitration shall take place in Phoenix, Arizona.
- Severability. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be amended to reflect, to the greatest extent permitted under applicable law, the original intent of the parties, and the remainder of the provisions shall remain in full force and effect.
- Waiver. Either party's failure to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of that or any other of its rights hereunder at any later date or time.
- Survival. All terms and provisions of this Agreement that should by their nature s survive the termination shall so survive.
- Entire Agreement. This Agreement, including the Exhibits attached hereto and made part hereof, constitutes the entire agreement between Licensee and STC with respect to the subject matter hereof. This Agreement supersedes any prior agreements, representations, or dealings between the parties.
- Amendment. This Agreement may be amended only by a written instrument signed by the parties or by STC submitting an updated license in a click wrap form to Licensee that Licensee agrees to which shall constitute a written instrument signed by the parties.
- Headings. The section headings herein are for convenience and reference purposes only and shall not serve as a basis for construction or interpretation.
- Preamble. The preamble of this Agreement set forth before the Definition Section shall constitute part of this Agreement.