User agrees that (a) use of a key pad, mouse or other device to select an item, button, or icon, and/or (b) any other means of indicating acceptance or accessing the Services (defined below), constitutes User’s electronic signature. No certification authority or other third party verification is necessary to validate their electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of an electronic signature or any resulting agreement between the parties. If User does not agree to the terms and conditions of this Agreement, User must indicate such non-acceptance and refrain from accessing the Services.
SECTION 1. ACCESS TO SOFTWARE
1.1 Grant of Access. Redivus Health, Inc. (“Redivus”) grants to User a non-exclusive, non-transferable license to access and use Redivus’s proprietary software through Redivus’s web site(s) and the applications maintained by Redivus (the “Services”) to assist User in its support and management of patients during the term of this Agreement. This Agreement does not permit access by persons who are not User.
1.2 Devices. For quality control reasons, use of and access to the Services is permitted only with Redivus-approved devices.
1.3 Ownership. Access to the Services is licensed and not sold. User shall not, by virtue of this Agreement or otherwise, acquire any rights whatsoever in the Services aside from the limited licenses granted herein, and User hereby expressly disclaims any other rights therein. Redivus shall have and retain all right, title and interest in and to the Services and all intellectual property comprising the Services as well as any modifications or enhancements made thereto.
1.4 Prohibitions. User may not copy, use, modify, display, rent, resell, sublicense or distribute the Services or access thereto without Redivus’s prior written approval. No identifying marks, intellectual property or other proprietary rights notices of Redivus or other parties may be deleted from, altered or obscured on the Services or materials produced by or using the Services. User may not translate, decompile, disassemble, reverse compile, reverse engineer, decrypt or otherwise seek to recreate the source code of the Services, adapt the Services in any way or use it to create a derivative work, or grant any other person or entity the right or access to do so, without the prior written approval of Redivus. Redivus is not responsible for providing any updates, enhancements, modifications, revisions, additions, replacements or conversions to the Services, or for otherwise maintaining the Services, except as otherwise expressly set forth in this Agreement.
1.5 Reserved Rights. All rights not specifically granted to User hereunder are reserved by Redivus. Nothing herein shall prevent Redivus or its licensors from promoting, selling, providing, licensing or sublicensing access to the Services to other parties in its sole discretion.
SECTION 2. USER’S RESPONSIBILITY FOR USE
2.1 Acceptable Use. User assumes sole and complete responsibility for ensuring that the Services are used only by User, that User has been trained on the use of the Services and uses them reasonably as an informed professional would, and that User does not make unauthorized, illegal or unethical use of the Services. Unauthorized use includes, without limitation: (a) use of the Services to access web sites other than the Web Site; (b) attempts to gain access to data about individuals or patients other than for legitimate screening purposes; (c) alteration or modification of individual data or of any Services; (d) accessing the Services through any technology or means other than through the user account information provided to User by Redivus; and (e) any use of the Services or the information contained therein in violation of any applicable law or regulation. Additionally, User will ensure that it complies with the following requirements: (i) User must not enter or transmit any information using the Services that is unlawful, false, offensive, defamatory, or infringes the rights of any person or violate any or applicable law, rule or regulation or any agreement to which User is bound; (ii) User must not use the Services in a way that disrupts use of the Services by others; and (iii) User must not use any information obtained through the Services except for the purpose for which the information was provided, and must not attempt to use the Services to gain unauthorized access to information.
2.2 User Obligations. User shall be solely responsible for the security and confidentiality of any usernames or passwords granted to User to access the Services, and shall limit disclosure of such usernames and passwords. User shall be solely responsible for any authorized or unauthorized access to the Services using such usernames and passwords, and any actions taken thereunder.
2.3 Suitability. User shall be responsible for determining the suitability of the Services for its support and management of patients and whether the Services will achieve the results User desires. The Services is provided as a tool for User to use as User sees fit in its practice. As with manually kept records, records kept using the Services may contain errors, whether resulting from incorrect input or recording of information, software errors, or other causes. User is solely responsible for understanding the limitations of the Services. User shall be responsible for ensuring the accuracy of any data input into the Services, ensuring and confirming the accuracy of any output and results created by the Services prior to use or dissemination, and undertaking procedures to test, identify and correct any errors or omissions relating to the foregoing.
2.4 Not Medical Advice; No Endorsement. User acknowledges and agrees that Redivus’s provision of the Services, content, or any other information provided by the Services or other Redivus products, does not constitute the practice of any medical, nursing, or other professional health care advice, diagnosis, or treatment. REDIVUS IS NOT RESPONSIBLE FOR USER’S RELIANCE ON ANY CONTENT, OUTPUT OR OTHER INFORMATION IN THE SERVICES. THE SERVICES AND ANY INFORMATION ON THE SERVICES IS NOT MEANT TO BE EXHAUSTIVE. THE SERVICES, CONTENT, OR ANY OTHER INFORMATION PROVIDED BY THE SERVICES SHOULD NOT BE USED AS A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT BY A QUALIFIED HEALTH CARE PROFESSIONAL. User should make its own decision about the symptoms, diagnosis and treatment of any patient under User’s care. User is solely responsible for all decisions and actions taken or not taken involving patient care for its respective patients resulting from or in any way related to the use (or misuse) of or access to the Services, content, or any other information provided by the Services or other products. REDIVUS MAKES NO GUARANTEES ABOUT WHETHER ANY INFORMATION, PRODUCTS, OR SERVICES WILL HELP CLIENT ACHIEVE THE RESULTS IT WANTS. Redivus does not recommend or approve any specific content, tests, doctors, devices, products, procedures, opinions, or other information that may be mentioned in the Services.
SECTION 3. TERM & TERMINATION
3.1 Term. This Agreement will remain in effect until terminated under this Section 4.
3.2 Termination. This Agreement and User’s license to use and access the Services will terminate immediately upon termination or expiration of any separate Master Software Services Agreement between Redivus and User; and/or this Agreement and User’s license to use and access the Services shall terminate immediately and without action from Redivus in the event: (a) User materially breaches the terms of this Agreement; (b) Redivus gives User notice of additional terms and conditions that will govern use of or access to the Services and User does not accept the additional terms and conditions; (d) Redivus ceases providing access to the Services to its Users generally; or (d) User is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes a general assignment for the benefit of creditors or admits in writing its inability to pay debts when due.
3.3 Consequences Upon Termination. Upon the termination or expiration of this Agreement for any reason: (a) User’s licenses to use the Services shall immediately and automatically terminate, (b) User shall cease all access and use of the Services and any content and intellectual property related thereto; and (c) User shall immediately return to Redivus any Redivus property in User’s possession. Redivus will retain data collected using the Services for any minimum period required by applicable law and regulations. Thereafter, Redivus may delete the data in accordance with Redivus’s data retention policy as then in effect and as modified from time to time. Notwithstanding the foregoing, Redivus shall have absolutely no obligation to provide or return data to User.
SECTION 4. DISCLAIMER, LIMITATION OF LIABILITY & INDEMNIFICATION
4.1 Disclaimer. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, REDIVUS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. REDIVUS DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICES WILL MEET USER’S REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE CORRECTED, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. REDIVUS DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND USER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS.
4.2 Limitation of Liability. REDIVUS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, LOSS OF DATA, WORK STOPPAGE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF REDIVUS FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO REDIVUS BY USER. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE PARTIES UNDERSTAND THAT THE FOREGOING DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY ARE MATERIAL TERMS OF THIS AGREEMENT AND A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR REDIVUS TO PROVIDE AND USER AND TO OBTAIN ACCESS TO THE SERVICES FOR THE SPECIFIED FEES, IF ANY.
4.3 Indemnification by User. User will, at its own expense, indemnify and hold Redivus and its shareholders, members, directors, officers, employees and agents harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees) to the extent that the foregoing result from or pertain to User’s or its employees’ or agents’ use, misuse and operation of the Services, breach of this Agreement or gross negligence or willful misconduct.
SECTION 5. CONFIDENTIALITY
5.1 Confidential Information. Either party (the “Disclosing Party”) may from time to time disclose to the other party (the “Recipient”) Confidential Information (as defined below). As used herein, “Confidential Information” means: (a) any nonpublic information regarding the Disclosing Party’s existing or proposed business, technology, products, services, internal structure and strategies of the Disclosing Party, specifically including, without limitation, the Services, documentation, end-user materials, Intellectual Property, proposals, designs, concepts, methodologies, inventions, source or object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how,” procedures, financial information or licensing and access policies; (b) any nonpublic information about Disclosing Party’s financial condition; (c) any nonpublic information regarding the terms of this Agreement; (d) any information of the Disclosing Party when presented in printed, written, graphic, photographic or other tangible form (including information received, stored or transmitted electronically) and marked “Confidential” or similarly by the Disclosing Party; (e) any information disclosed orally by the Disclosing Party, if the Disclosing Party states at the time of first disclosure that such information is of a confidential nature and the Disclosing Party confirms the confidentiality of such information with the Recipient in writing within ten (10) days after first disclosure; and (f) all such information that, by its nature, a reasonable party would consider to be confidential or proprietary. Confidential Information shall not include information that: (i) is or becomes publicly available through no fault of Recipient; (ii) is or has been received in good faith by Recipient without restriction on use or disclosure from a third party having no obligation of confidentiality to Disclosing Party; or (iii) is or has been independently developed by Recipient without reference to Confidential Information received from Disclosing Party, as evidenced by Recipient’s written records.
5.2 Confidentiality and Non-Use. Recipient will use reasonable efforts to avoid unauthorized disclosure of the Disclosing Party’s Confidential Information. Recipient will protect the Disclosing Party’s Confidential Information from unauthorized disclosure by taking at least those steps that Recipient uses to protect its own Confidential Information, but in no event less than reasonable efforts. Recipient will not use the Disclosing Party’s Confidential Information except for purposes of fulfilling its obligations under this Agreement. Recipient may disclose the Disclosing Party’s Confidential Information to its employees, agents, service providers and other persons who need to know such Confidential Information in connection with this Agreement. Before doing so, Recipient will take reasonable steps to ensure that such persons will comply with the restrictions imposed on Recipient by this Agreement. The obligation to protect Confidential Information will continue as long as Recipient possesses Confidential Information.
5.3 Permitted Disclosure. Recipient may disclose Confidential Information as required by law or in compliance with any court or administrative order; provided that Recipient gives the Disclosing Party reasonable notice as permitted by law that such Confidential Information is being sought by a third party in order to afford the Disclosing Party the opportunity to limit or prevent such disclosure.
5.4 Confidentiality of Information Under HIPAA. The parties acknowledge that Redivus may have access to patient identifiable protected health information (“PHI”) that may become subject to certain requirements of the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Redivus will maintain the confidentiality of all PHI that is within its possession, consistent with the requirements of such federal and state laws and regulations that are lawfully in effect and applicable to Redivus.
SECTION 6. GENERAL PROVISIONS
6.1 Relationship of the Parties. The relationship of Redivus and User established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any other relationship. Redivus does not grant User or any of User’s representatives the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of Redivus, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of Redivus, or to transfer, release or waive any right, title or interest of Redivus. Redivus shall have the right to determine the method, details, and means of performing any services pursuant to this Agreement.
6.2 Assignment. User may not assign, transfer or sell (voluntarily or by operation of law) its rights or obligations under this Agreement, or delegate its duties hereunder to any other person, without Redivus’s prior written consent. A transfer of a controlling interest or other change in control in User shall constitute an assignment. Any purported assignment without Redivus’s consent will be void and will constitute a breach of this Agreement. Redivus may assign this Agreement or delegate or subcontract its obligations under this Agreement at any time.
6.3 Entire Agreement; Modification. This Agreement, including any exhibits and schedules hereto and any separate master, screening, or clinic services Agreement between the parties, constitutes the entire Agreement of the parties with respect to the subject matter hereof and supersedes all prior Agreements, both oral and written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment or modification of this Agreement or any exhibit or schedule shall be effective unless in writing and signed by the party to be bound. In the event any provisions contained in a separate master, screening, or clinic services agreements, exhibit or schedule hereto expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of such separate Agreement, exhibit or schedule shall govern to the extent such provisions expressly conflict. No use of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement.
6.4 Notices. Any notices must be given in writing directed to the current address of each party or to such other address as either party may provide by written notice to the other. Notices will be deemed given (a) when personally delivered; (b) if sent by recognized overnight national courier service, on the second business day after deposit with the courier, properly addressed and fee prepaid or billed to sender; or (c) when sent by fax or e-mail, upon receipt of proper confirmation of sending, provided a copy of the notice is concurrently sent by mail.
6.5 Attorneys’ Fees. In the event of a breach of this Agreement, the breaching party will reimburse the non-breaching party for all costs and expenses reasonably incurred by the non-breaching party in connection with the breach, including, without limitation, attorneys’ fees. Additionally, in the event any suit or action is brought to enforce or interpret any of the terms of this Agreement, the prevailing party will be entitled to recover from the other party all reasonable attorney fees incurred at trial, on appeal, and on any petition for review, together with such other expenses, costs, and disbursements as may be allowed by law.
6.6 Remedies. User agrees that a breach of Sections 1.1, 1.3, 1.4, 2.1, 2.2, 3.3 or 5 will cause Redivus irreparable injury and damage. The parties expressly agree that Redivus shall be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which Redivus might be entitled. The parties waive the posting of any bond or surety prior to the issuance of an injunction hereunder. In the event a court refuses to honor the waiver of bond hereunder, the parties expressly agree to a bond in the amount of $100.00. All remedies for such a breach shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedy with respect to the subject matter hereof.
6.7 Governing Law; Venue. This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Kansas, without reference to its conflicts or choice of law principles. The parties agree that the sole and exclusive jurisdiction and venue for any and all disputes arising under this Agreement shall be in any court located in or having jurisdiction over Johnson County, Kansas. Each of the parties hereby irrevocably submits and consents to the personal jurisdiction of such courts.
6.8 Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement.
6.9 Third Parties; Waiver. Nothing in this Agreement, express or implied, shall create or confer upon any person or entity not a named party to this Agreement any legal or equitable rights, remedies, liabilities or claims with respect to this Agreement, except as expressly provided herein. Except as specifically provided in a written waiver signed by a duly authorized representative of the party seeking enforcement, the failure to enforce or the waiver of any term of this Agreement shall not constitute the waiver of such term at any time or in any circumstances and shall not give rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of this Agreement.
6.10 Survival. The terms and provisions of Sections 1.3, 1.4, 1.5, 2.1, 2.2, 3.3, and 4 – 6 inclusive shall survive any termination or expiration of this Agreement.