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VIA End-User License Agreement

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End-User License Agreement 

 

THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS BETWEEN YOU (“USER” OR “YOU”) AND SERVIAM CARE NETWORK, P.B.C. (“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 AGREEMENT AND MAY NOT USE THE SOFTWARE AND SERVICES.  BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR ICON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.  THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND COMPANY AS OF THE DATE OF YOU ACCEPTING THIS AGREEMENT. 

 

DEFINITIONS 

 

In addition to the terms defined elsewhere in this Agreement, the following capitalized and underlined terms shall have the meaning set forth in this Section 1 for purposes of this Agreement: 

 

“Company Materials” shall mean the Company Software, any manuals, instructions, documentation, data, or other information provided in connection with the Company Software and Services, 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, and login credentials. Data may be collected by third-party hardware and services and received by the Company Software for processing. 

 

 “Hardware” shall mean any third-party hardware products, devices, and other accessories that are used by User to download, access, and/or use the Company Software, including, without limitation, a connected device, all of which are owned by third parties and not Company.  The Hardware does not include the Company Software or any Company Materials. 

 

“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. 

 

SERVICES 

  1. Company Software.  Subject to the terms and conditions of this 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. 
  2. Services.  Subject to the terms and conditions of this 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 its login credentials and/or username or password. 
  3. Changes to Company Materials and Services. Company reserves the right, in its sole discretion, to make any changes to the Company Materials and Services, including the Company Software, that Company deems necessary or useful to maintain or enhance the quality, delivery, competitive strength, efficiency, and performance of the Company Materials and Services, or to comply with applicable laws. 
  4. Use of Company Software and Services. All access to the Company Software and Services shall be limited to You as an individual.  You agree to access and use the Company Software and Services (i) only as authorized in this Agreement, and (ii) only for internal business purposes.  You shall not (a) use the Company Software and Services for the benefit of any third parties or provide access or use of the Company Software and Services to third parties, (b) transfer or share usernames and passwords assigned to authorized users, (c) use the Company Software and Services in a manner that violates any international, federal, state, or local law or regulation relating to individual privacy, including, without limitation, the federal Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (45 C.F.R. §§160‒164) (“HIPAA”), (d) directly or indirectly sublicense, assign, transfer, sell, rent, lend, lease, or otherwise provide the Company Software and 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 for the Company Software and 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, or (g) test the vulnerability of the Company Software and Services. 
  5. Your Security Obligations. You shall immediately inform Company if there is any reason to believe that any username, password, or other security device has or is likely to become known to any person not authorized to use it, or is being or is likely to be used in an unauthorized way.  Company reserves the right (when deemed necessary or appropriate by Company in its reasonable discretion) to require You to change Your username, password, or security device, and You shall promptly comply with any such requirement.  In addition, Company reserves the right to impose additional restrictions and protocols concerning the safety and security of the Company Software and Services that are commensurate with industry standards, and You shall promptly comply with any such restrictions and protocols of which it has received notice. 
  6. Your Privacy Obligations. You agree to maintain the privacy and security of any individually identifiable information that may be received from or created for the Company in accordance with all relevant state and federal laws and regulations, including, without limitation, HIPAA and the Health Information Technology for Economic and Clinical Health Act.   

 

PROPRIETARY RIGHTS  

  1. Company Materials and Services.  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, (i) any patent, copyright, trade secret, trademark, and other proprietary rights, in and to the Company Materials and Services, including the Company Software, any documentation, or upgrades or modifications thereof, and (ii) 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. 
  2. Hardware. All right, title, and interest in and to the Hardware and any associated intellectual property rights therein belong to the applicable third-party providers of such Hardware.  Company does not manufacture, own, or control any Hardware that may be used in connection with the Company Software and Services, and You accept all risks responsibility with respect to its use of such Hardware.  You shall use the Hardware in accordance with the terms and conditions provided by the third-party providers of such Hardware. 

 

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:  

  1. Grant of License. You hereby grant to Company (to the extent of Your rights therein, if any) an unlimited, irrevocable, non-exclusive, royalty-free, worldwide, perpetual right, transferable, and sub-licensable license to access and reproduce, modify, use, host, transmit, display, deidentify, aggregate, and disclose the Data as permitted by applicable law, both during and after the Term of this Agreement.  
  2. Company Use of Data. Pursuant to the license granted herein, Company will use Data provided and generated by You: (i) to provide the Company Software and the Services to You; (ii) to improve the Company Software and Services and Company’s other products and services; (iii) training any artificial intelligence or machine learning engine or system of Company; and (iv) as otherwise permitted by User. 

 

TERM AND TERMINATION 

  1. Term. The term of this Agreement begins on the date that You accept the Agreement (or a document incorporating this Agreement by reference) by signature, click-through, or use.  Unless terminated earlier as set forth below, the Agreement will continue in effect until the end of the applicable license or subscription term stated in the applicable agreement signed or otherwise executed by You (such period, the “Term”). 
  2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement, Company may terminate this Agreement immediately, effective on written notice to You, if You materially breach any provision of this Agreement, including without limitation, any of its obligations under Section 2.4 (2.4 Use of Company Software and Services). 
  1. Effect of Termination. Upon termination of this Agreement for any reason, Your access to and use of the Company Software and Services shall cease.  At the time of termination of this Agreement, You shall (i) cease use of the Company Software and Services, and (ii) clear any data cache derived from the Company Software and Services in the Your possession or control. 

 

CONFIDENTIALITY 

  1. As a result of the relationship created between Company and User by this 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 writing, pursuant to this 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 Agreement disclose or use the Confidential Information of Company: (i) other than for the purpose of fulfilling his or her obligations under this Agreement; (ii) except to the extent required by applicable law; and (iii) 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 Agreement. 

 

REPRESENTATIONS AND WARRANTIES  

  1. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement; and (ii) the execution, delivery, and performance of this Agreement by it 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. 
  2. User Representations and Warranties. User further represents and warrants that User: (i) has all necessary rights and licenses to the Hardware not provided by Company that User uses in connection with the Company Software and Services; (ii) will not authorize any third party or person to use and/or access the Company Software and the Services through User’s login credentials; and (iii) will comply with all other obligations and restrictions with respect to the use of the Company Software and Services as set forth herein.   
  3. WARRANTY DISCLAIMER.  EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY IS PROVIDING THE COMPANY MATERIALS, 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 COMPANY SOFTWARE OR 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. 

 

INDEMNITY  

  1. Intellectual Property Indemnification.  Company shall indemnify and defend User against any third-party claims that the Company Software, during the Term, infringes any United States patent or registered copyright.  In the event a court of competent jurisdiction makes a determination that or Company reasonably believes that there is a potential that the Company Software infringes any United States patent or registered copyright, Company, at its option and expense, shall: (i) modify the infringing portion of the Company Software so as to make it non-infringing; (ii) replace the infringing portion of the Company Software; (iii) obtain for User the right to continue using the infringing portion of the Company Software; or (iv) terminate  this 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 Agreement.  The foregoing indemnification obligations are conditioned upon User (1) notifying Company promptly in writing of any claim or action pursuant to which User is requesting indemnification, (2) giving Company sole control of the defense thereof and any related settlement negotiations, and (3) cooperating and, at Company’s request, assisting in such defense or settlement.  This Section 8.1 states Company’s entire liability and User sole and exclusive remedy for claims relating to infringement. 
  2. Disclaimer of Medical Indemnification.  Company’s indemnity and defense obligations shall not apply to any medical malpractice claim, damage, loss, or liability. 
  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: (i) the Data, including, without limitation, to any claim that the Data infringes the rights of a third party; (ii) User’s use of the Company Software and Services that exceeds the scope of the license granted in the Agreement; (iii) a breach or alleged breach of any representation or warranty of User under this Agreement; or (iv) injury to person or property arising from acts of negligence, bad faith, willful misconduct, or reckless disregard by User relating to this 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 Agreement.  Within a reasonable time after learning of any such claim, User shall provide Company with User’s good-faith evaluation of the claim.  

 

LIMITATION OF LIABILITY 

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 AGREEMENT SHALL BE LIMITED TO USER’S ACTUAL DIRECT DAMAGES NOT TO EXCEED ANY FEES RECEIVED BY COMPANY FOR USER’S USE OF THE COMPANY SOFTWARE DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS HEREUNDER. 

 

MEDICAL DISCLAIMER 

USER ACKNOWLEDGES AND AGREES THAT THE COMPANY SOFTWARE IS NOT A DIAGNOSTICS 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, AND 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 NONE OF USER OR 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 USER OR ANY OF ITS AUTHORIZED USERS, AND USER AND ALL AUTHORIZED USERS SHALL MAINTAIN ALL USUAL AND CUSTOMARY MEDICAL LIABILITY AND MALPRACTICE INSURANCE TO COVER THE PROVISION OF HEALTH CARE AND MEDICAL SERVICES, INCLUDING THOSE DELIVERED IN CONNECTION WITH THE COMPANY SOFTWARE. 

 

MISCELLANEOUS PROVISIONS 

  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 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.   
  2. Assignment.  This Agreement may not be assigned by User without the prior written consent of Company. 
  3. Governing Law; Venue.  This Agreement shall be construed in accordance with Missouri law without giving effect to the choice or conflicts of law provisions thereof.  The parties agree that any legal proceedings which arise under this Agreement shall be brought in the state or federal courts in Kansas City, Missouri. 
  4. Miscellaneous Terms.  Section headings are used for convenience only and shall in no way affect the construction or interpretation of this Agreement.  In the event any provision of this 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 Agreement shall remain in force.  This 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 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 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 AGREEMENT OR OTHERWISE AGREEING BY USE, YOU HEREBY AGREE THAT YOU HAVE REVIEWED, UNDERSTAND, AND AGREE TO THE TERMS AND CONDITIONS OF THIS 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: 

  • THAT COMPANY WILL COLLECT AND GENERATE DATA IN CONNECTION WITH YOUR USE OF THE COMPANY SOFTWARE AND SERVICES; 
  • THAT COMPANY MAY USE SUCH COLLECTED AND GENERATED DATA TO PROVIDE THE COMPANY SOFTWARE AND SERVICES AND FOR ITS OWN INTERNAL BUSINESS PURPOSES; AND 
  • THAT COMPANY MAY DISCLOSE SUCH COLLECTED AND GENERATED DATA TO THIRD PARTIES IN DE-IDENTIFIED OR AGGREGATED FORMAT. 

 

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