EFFECTIVE DATE: April 1, 2020
This End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Healtharc, LLC. a New Jersey Corporation (“we” or “Healtharc”). This Agreement governs your use of Healtharc’s cloud-based, HIPAA compliant software (including all related user documentation provided to you, the “Application”). The Application is licensed, not sold, to you and/or your organization. Collectively, the database architectures, database, algorithms, mobile applications and websites comprise the system hereinafter referred to as the “Platform”.
BY USING THE APPLICATION, YOU
(a) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT;
(b) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT;
(c) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION.
This Application is only available for individuals aged 18 years or older. IF YOU ARE NOT AT LEAST 18 YEARS OLD, OR THE LEGAL AGE REQUIRED TO FORM A BINDING CONTRACT IN YOUR JURISDICTION IF THAT AGE IS GREATER THAN 18, YOU MAY NOT CLICK THE “I AGREE” BUTTON UNLESS YOU HAVE OBTAINED APPROVAL OF THIS AGREEMENT FROM YOUR PARENT OR LEGAL GUARDIAN. IF YOU DO NOT AGREE OR HAVE NOT OBTAINED SUCH APPROVAL, YOU MUST SELECT THE “I DISAGREE” BUTTON AND YOU MAY NOT CONTINUE TO INSTALL, DOWNLOAD, COPY, ACCESS OR USE THE APPLICATION.
License Grant. Subject to the terms of this Agreement, Healtharc grants you a limited, non-exclusive and nontransferable license to:
(a) use the Application for your business use on a device owned or otherwise controlled by you (“Device”) strictly in accordance with this Agreement and any other associated documentation provided to you.
License Restrictions. You shall not:
(a) copy the Application, except as expressly permitted by this license;
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
(f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.
3. Permitted Uses.
This Application is intended to allow for the secure transmission of tasks, comments and patient context between medical providers to facilitate the collaboration and management of duties. You acknowledge and agree that you will only use the Application as licensed hereunder and for the purpose intended for the Application. You agree that you will not use the Application for any prohibited use. Prohibited uses include, but are not limited to: use of the product for a deceptive purpose, including for the impersonation of another; permitting another individual to use your account; use of the Application to harm or exploit minors; distribution of “spam”; advertisement or solicitation; use of the proprietary content, information or materials in any manner except as permitted under this Agreement; reproduction, modification, rental, loan, sale, distribution or creation of any derivative works of the Application; or, use of the Application to harass, abuse, stalk, threaten, defame or violate the rights of any other party.
4. Reservation of Rights.
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Healtharc reserves and shall retain its entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
5. Collection and Use of Your Personal Information.
6. Electronic Uploads of PHI.
(a) for which the applicable patient has opted out of being uploaded into Application; and/or
(b) for which applicable law requires a specific patient authorization or consent, where such authorization or consent has not been obtained by the End User. Without limiting the generality of the foregoing, End User will not directly or indirectly use, disclose, access, upload and/or transfer to the Application, any AIDS/HIV, mental health, sexual health, addiction diagnoses or treatments or related patient data or other patient data for which the provider is required to acquire additional authorizations and/or separate written consents.
7. Sharing PHI.
Inviting a user to an “Organization” or “Module” within the Application will give that user access to the PHI contained within that Organization and/or Module. For the purposes of this Agreement, an Organization includes any end user that has been invited by an owner or administrator, irrespective of physical location or affiliation. Only the “Owner” of a Modules can invite and therefore give access to new members of a Module or administrators of a Module, as designated by the Owner of that Module. Owners (and its administrators by proxy) of a Modules are solely responsible for appropriate sharing of access to the Module and the PHI contained within the Module. Invitations to join an Organization will similarly allow access to the PHI contained therein and should only be shared with trusted individuals. Healtharc does not assume any responsibility or liability for any willful or unintended sharing of PHI with any unauthorized third parties by inviting access to an Organization or Module.
8. Consent to Disclosure and Use of Personal Information in De-identified Form.
Healtharc may de-identify or anonymize your Personal Information (i.e., remove all information that could be used to specifically identify you to create “De-Identified Personal Data”) provided to us through the Application, and use that De-Identified Personal Data in aggregate or non-aggregate forms for research studies, evaluation of the Application services, quality improvement purposes, or for any other lawful commercial purpose. Healtharc’s use and disclosure of any Personal Information and De-Identified Personal Data in aggregated or non-aggregated forms will be conducted in compliance with all applicable laws and regulations. You agree that:
(a) you consent to such disclosures and uses of De-Identified Personal Data;
(b) Healtharc is not obligated to pay any amount to you or otherwise compensate you or any other person in any way for such disclosures and uses;
(c) Healtharc is not required to furnish you with any other information of any kind regarding such disclosures and uses; and
(d) to the extent that you have a proprietary interest in any such De- Identified Personal Data, you waive any right to such interest and you waive any right to seek compensation for such disclosures or uses.
9. Geographic Restrictions.
The Application is provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access the Application outside of the United States and that access thereto may not be legal by certain persons or in certain countries.
10. Password Protection.
You are responsible for keeping your password confidential. You should notify us immediately if your password is hacked or stolen. Healtharc is not responsible or liable to you in any way if information is intercepted by an unauthorized person, either in transit or at your home, business or other place of access.
11. Login Info and Access.
Your access to the Application must be via login credentials (“Login Credentials”). You agree that you are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs under those Login Credentials. You agree to notify us immediately if you believe that any of Your Login Credentials have been or may be used without your permission so that appropriate action can be taken. You may not
(i) create more than one organization account to access the Application,
(ii) share your Login Credentials with any third party nor
(iii) transfer your account to any third party. Healtharc is not responsible for any loss or damage caused by you as a result of your failure to safeguard your Login Credentials. Healtharc may terminate any Login Credentials in its sole discretion; you may not be permitted to create a new account to access the Application if your prior Login Credentials have been terminated by Healtharc. You agree to provide, maintain and update true, accurate, current and complete Personal Information on the screens that collect information from you in connection with the Application, and represent that you will not misrepresent your identity or your affiliation with any person or entity.
Healtharc may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Healtharc has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
13. Term and Termination.
(a) The term of Agreement commences when you acknowledge your acceptance of this Agreement and will continue in effect until terminated by you or Healtharc as set forth in this Section 13.
(b) Unless otherwise specified in the applicable customer license agreement, you may terminate this Agreement upon 60 days’ notice to Healtharc . Unless otherwise specified in the applicable customer license agreement, Healtharc may terminate this Agreement without cause upon 10 days’ notice to you.
(c) Healtharc may terminate this Agreement at any time without notice if it ceases to support the Application, which Healtharc may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application.
(e) Termination will not limit any of Healtharc’s rights or remedies at law or in equity.
14. Disclaimer of Warranties.
THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, HEALTHARC, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, HEALTHARC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
15. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HEALTHARC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR HEALTHARC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
BY CONSENTING TO THE TERMS OF THIS AGREEMENT AND USE OF THE APPLICATION, YOU EXPRESSLY CONSENT TO THE LIMITATION OF LIABILITY SET FORTH ABOVE IN THIS PROVISION AND ACKNOWLEDGE AND CONSENT TO THE FOLLOWING:
(i) Communication via this Application has certain limitations and may not be as effective as in person communication or other modes of coordination or collaboration. Please seek alternative forms of communication with important clinical communications if necessary.
(ii) This Application is not intended to be used, nor should it be used for emergency purposes. In the event of a clinical or patient emergency, please contact the health care providers necessary by more appropriate means.
(iii) Healtharc is not validating, affirming, providing or issuing medical advice and any communication received or transmitted by you through the Application should not be construed as such. Furthermore, Healtharc is not responsible for your decision to seek or not seek medical care or choice of specific treatment based on your use of the Application.
(iv) Delay, interruption or failure may occur in communication through use of the Application. You shall not hold Healtharc liable for any injury resulting from such delay or failure, for whatever reason, and expressly assume such risk through your use of the Application.
(v) The Application is intended to be used as a collaboration tool and supplement to patient care. It may replace email, to-do lists and paper-based task management workflows. Tasks and comments on the Application are not intended to replace the EMR and will not be written to the EMR or accessible by the EMR, unless Healtharc and your employer agree otherwise in the applicable customer license agreement.
(vi) Data placed in the Application will be stored in an encrypted fashion and may be accessible for reference related to its use in the future. Similarly, data entered in the Application should be considered “discoverable” in compliance with applicable law in the event of a patient inquiry. Healtharc will do whatever reasonably possible to aid in any requests from legal authorities while maintaining patient and provider privacy.
(vii) You assume full responsibility and risk for your use and reliance on the Application.
You agree to indemnify, defend and hold harmless Healtharc and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. Furthermore, you agree that Healtharc assumes no responsibility for the content you submit or make available through this Application.
17. Export Regulation.
The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation.
18. US Government Rights.
The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefore, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. If a judicial determination prevents the accomplishment of the purpose of this Agreement, the invalid term or condition (or portion of terms or conditions) shall be restated to conform to applicable law and to reflect as nearly as possible the original intention of the parties.
20. Governing Law.
This Agreement is governed by and construed in accordance with the internal laws of the New Jersey without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the New Jersey. YOU WAIVE ANY AND ALL OBJECTIONS TO THE EXERCISE OF JURISDICTION OVER YOU BY SUCH COURTS AND TO VENUE IN SUCH COURTS.
21. Limitation of Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
22. Entire Agreement.
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms between you and Healtharc, the terms of this Agreement shall govern unless expressly indicated otherwise in the other terms.