THIS END USER AGREEMENT ("AGREEMENT") CONTAINS THE TERMS AND CONDITIONS THAT APPLY TO THE USE AND ACCESS OF THE SURVIVORSHINE WEBSITE (INCLUDING ALL WEBSITES LOCATED AT OR WITHIN THE URL SURVIVORSHINE.ORG). THESE TERMS AND CONDITIONS CREATE AN AGREEMENT BETWEEN SURVIVORSHINE ("LICENSOR") AND THE USERS OF THE SOFTWARE. AS A CONDITION TO ACCESSING AND USING THE SOFTWARE, USERS ("USER" OR USERS") AGREE TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT. IF A USER DOES NOT AGREE, DO NOT USE THE SOFTWARE, ACCESS THE WEBSITE OR OTHERWISE UTILIZE THE SOFTWARE COVERED BY THIS AGREEMENT.
LICENSOR MAY MODIFY OR SUPPLEMENT THIS AGREEMENT AT ANY TIME BY POSTING CHANGES ON THE WEBSITE. IT IS THE USER'S RESPONSIBILITY TO ROUTINELY VISIT THE WEBSITE TO CHECK FOR CHANGES TO THIS AGREEMENT. IF A USER DOES NOT AGREE WITH THE CHANGES, THE USER'S REMEDY IS TO CEASE ALL USE OF THE SOFTWARE. BY CONTINUING TO USE THE SOFTWARE, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS AS AMENDED.
References to the Software (defined below) shall apply to all programming, tutorials, materials, packaging, documentation, or other information provided, directly or indirectly, by Licensor regardless of the method of transmission or the medium in which the Software is received or accessed. Unless expressly stated herein, making any derivative works, copies, modifications, or translations at any time is strictly prohibited and shall automatically terminate any rights afforded under the terms of this Agreement.
Article 1. Definitions
"Account" means the individual registration and account of User. Each Account must have a valid email address and unique password. Users may only access and use the Software through such User's own Account and not through the Account of another User.
"Agreement" means this End User Agreement, as may be renewed, modified, or amended from time to time.
"Software" means the web-based software tool made accessible by Licensor for recording clinical encounters for healthcare providers, related documentation, user interfaces, all websites available currently under the URL www.survivorshine.org from which the Software can be accessed (and replacement websites), as well as any future programming fixes, updates, and upgrades thereof made generally available by Licensor.
"IP Rights" means any and all intellectual property rights, including but not limited to copyrights, trademarks, and patents, as well as know-how and trade secrets contained in or relating to the Software.
"User" means entities and or individuals that independent use and access the Software. Each User must have an Account.
"User Information" means all information directly or indirectly obtained from, as a result of, or through Users accessing or using the Software.
Article 2. License and Restrictions
2.1. Subject to the terms of this Agreement, Licensor hereby grants User a limited, non-exclusive, non-sublicensable, non-transferable, royalty-free license to access and use the Software solely for internal business purposes. Use of the Software is only for the benefit of the Users and not for the benefit of third parties. Use of the Software other than as permitted under this Agreement requires the prior written consent of Licensor.
2.2. Users will not sell, assign, rent, lease, distribute, license, export, import, act as a service bureau, intermediary or provider, or otherwise grant rights to third parties with regard to the Software or any part thereof. Users may not create a commercial service or product based on the Software.
2.3. Users will not undertake, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Software or any part thereof.
2.4. Users cannot use or attempt to use the Software for any fraudulent, unlawful, harassing or abusive purpose, including but not limited to:
(a) Violating any law or regulation;
(b) Posting or transmitting content that User does not have the right to post or transmit, such as content that infringes a third party's trademark, patent, trade secret, copyright, publicity, privacy, or other right;
(c) Posting or transmitting content that is untrue, harassing, defamatory, abusive, obscene, hateful, or otherwise objectionable as determined in Licensor's sole discretion;
(d) Attempting to intercept, collect, transmit, disclose, or store data about third parties without their knowledge or consent;
(e) Attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures;
(f) Using or triggering spiders, bots, or other device or mechanism to search or collect data from others in an automated manner;
(g) Sending or attempting to send unsolicited messages such as "spam", "chain mail" or "junk mail";
(h) Engaging in identity theft or other computer fraud;
(i) Sending a "virus" to or overloading the Software or using it for a denial of service attack; or
(j) Transmitting excessively high volume of data.
2.5. If Licensor suspects violations of any of the above or any other term or condition in this Agreement, it may take whatever steps are necessary or desirable, in Licensor's sole discretion, including commencing legal action, terminating access to the Software without notice, and cooperating with law enforcement authorities. Licensor reserves the right to use means designed to assist Licensor in identifying or tracking activities that Licensor considers to be illegal or a violation of this Agreement.
2.6. User acknowledges and agrees that Licensor, in its sole discretion, may discontinue, disable, or suspend User's ability to use the Software, including the suspension or deletion of any Account or any feature thereof in circumstances where there is, in Licensor's reasonable discretion, an actual or threatened breach of this Agreement or misuse of the Software.
2.7. Licensor reserves the right to add, delete, or modify the features or functions of the Software, and to provide programming fixes, updates, and new versions, to the Software in its sole discretion.
2.8. Licensor does not accept and hereby disclaims any liability in relation to, and User agree that Licensor shall not be liable or responsible for, any direct or indirect damages caused by (i) the release or the absence of release of fixes, updates, or new versions of the Software or the modification, deletion, or addition of features or functions thereof, or (ii) by the suspension or termination by Licensor of this Agreement, any Account, or any User's right or license to use or access the Software.
2.9. Use of the Software is void where prohibited.
2.10. User agrees that it is solely responsible, at its expense, for obtaining any consent or approval, and providing and notices and disclosures, required from any third party in order to use, transmit, disclose, access, view, or share that third party's information by means of the Software.
Article 3. Accounts
3.1. All User Information provided to Licensor shall be complete, accurate, and current.
3.2. Users shall protect and keep confidential all passwords and usernames provided to, created, or obtained by each of them with respect to the Software. In the event that any password or username provided to, created, or obtained by User is compromised or disclosed to any unauthorized individual, entity, organization, association, partnership, or otherwise, or any User becomes aware of any unauthorized access to or use of the Software, any Account, or any username or password, the User immediately shall notify Licensor in writing and shall change the compromised password(s) or username(s).
3.3. Users immediately shall notify Licensor in writing of any Security Incident of which User becomes aware, but in no event greater than three (3) days after the discovery of a potential Security Incident. For purposes of this Agreement, "Security Incident" means the attempted or successful unauthorized access, use, disclosure, theft, modification, or destruction of the Software, the Website, or any data or information located on or transmitted through the Website or Software, or any interference with the Software or Website system operations. The notice shall include the identification of each individual whose data or information has been, or is reasonably believed to have been, accessed, acquired, used, or disclosed during such Security Incident, the date of the Security Incident, and the perpetrator(s) of the Security Incident, if known. Users shall provide to Licensor such other information as requested by Licensor or Licensor's representatives regarding any such Security Incident and remedies taken or to be taken by Users to prevent further Security Incidents and to notify affected individuals and protect their information from further unauthorized access, acquisition, use, or disclosure.
Article 4. IP Rights
4.1. User acknowledges and agrees that any and all IP Rights to or arising from the Software are and shall remain the exclusive property of Licensor or its licensors. Nothing in this Agreement transfers any such IP Rights to, or vests any such IP Rights in, the User. User will not take any action to jeopardize, limit, or interfere with the IP Rights. User acknowledges and agree that any unauthorized use of the IP Rights is a violation of this Agreement and may also violate intellectual property laws. All title and rights in and to any third party content that may be accessed through use of the Software is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
4.2. User agrees not to remove, obscure, make illegible or alter any notices or indications of the IP Rights or Licensor's rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
4.3. Upon termination or expiration of this Agreement, all licenses and rights to use the Software shall terminate, and Users agree to cease any and all use of the Software.
Article 5. Communication Using the Software
5.1. Using the Software may enable a User to communicate with others, including other Software users. User agrees that Licensor is only a provider of a software product and not a party to or in control of the communications and interactions between them and other Users of the Software or other third parties with whom they communicate or link to by means of the Software.
5.2. User agrees that Licensor will not be liable for any disruptions, delays, or other omissions in any communication experienced when using the Software. Users are responsible for the hardware, connectivity, and other software necessary to access and use the Software. Web access to the Software is subject to unavailability and interruption, including due to emergencies, third party service failures, transmission problems, equipment or network problems, interference, or maintenance and repair. Licensor is not responsible or liable for data or messages lost, not delivered, delayed, or misdirected because of interruptions or performance issues. Licensor does not warrant the network speed nor the accuracy and timeliness of data sent or received, and does not provide virus protection or similar anti-piracy or anti-intrusion protection for the computer of User.
5.3. User acknowledges and understand that the content of the communications exchanged by Users by use of the Software is entirely the responsibility of the person from whom such content originated. Licensor will not be liable or responsible for any type of communications transmitted by means of the Software.
5.4. Licensor may send communications about the Software, such as scheduled downtime, maintenance, notices, and upgrade features, to Users via the Accounts or email addresses provided to Licensor during Account registration.
Article 6. Representations and Warranties; Indemnification
6.1. User represent and warrant that it is authorized to enter into this Agreement and will comply with its terms. Furthermore, User represents and warrants that User will use the Software in compliance with this Agreement and all applicable laws, regulations, and policies.
6.2. User agrees to indemnify, defend, and hold harmless Licensor, its affiliated entities, and their respective officers, directors, shareholders, employees, agents, representatives, and contractors from and against any and all liabilities, judgments, claims, causes of action, suits, proceedings, damages, costs, and expenses, including, without limitation, all reasonable attorneys' fees and expenses, incurred in connection with, as a result of, or arising out of User's (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) User's use of or access to the Software, or (c) violation by User of any rights of any third party including, without limitation, any intellectual property rights of a third party, or (d) misuse of the Software, or (e) communications with others by means of the Software.
Article 7. Disclaimer of Warranties
7.1. THE SOFTWARE IS PROVIDED "AS-IS," WITH NO WARRANTIES WHATSOEVER EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW. LICENSOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTIES, EITHER EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR USE OR A PARTICULAR PURPOSE, WARRANTIES BASED ON COURSE OF DEALING OR USAGE OF TRADE, OR WITH RESPECT TO THE SECURITY OR PRIVACY AFFORDED TO COMMUNICATIONS AND INTERACTIONS EFFECTED USING THE SOFTWARE. LICENSOR FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, ACCURATE, COMPLETE, AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES LICENSOR WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. THE PARTIES AGREE THAT THE PROVISIONS OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, AS ENACTED ANYWHERE, DO NOT APPLY TO THIS AGREEMENT AND DISCLAIM ANY WARRANTIES CONTAINED THEREIN.
7.2. USER ACKNOWLEDGES AND AGREE THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH USER, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Article 8. Limitation of Liability and Damages
8.1. User acknowledges and agrees that Licensor, its affiliates, its licensors, and their respective officers, directors, shareholders, employees, agents, representatives, and contractors will have no liability or responsibility in connection with or arising from a User's use of the Software.
8.2. User agrees that in no event shall Licensor, its affiliates, its licensors or their respective officers, directors, shareholders, employees, agents, representatives, and contractors be liable or responsible, whether in contract, warranty, tort (including negligence), product liability, or any other form of liability, for (a) any incidental, indirect, special, or consequential damages (including without limitation any loss of data, lost profits, damage to reputation, loss of opportunity, damages due to interruption or computer failure or pecuniary loss) arising out of the performance of, use of, or inability to use the Software; or (b) direct or compensatory damages in an amount in excess of the license fees paid by User to Licensor for the Software for the contract year when the claim arose, not to exceed in the aggregate and cumulatively $1,000 for all claims related to this Agreement and the Software. User acknowledges that if no fees are paid to Licensor for the Software, User shall be limited to injunctive relief only, unless otherwise permitted by law, and shall not be entitled to damages of any kind from Licensor regardless of the cause of action.
9.1. By accessing and using the Software, Users hereby agree that Licensor may collect and use personal information, including Users' names, mailing addresses, phone numbers, and email addresses ("Personal Information"). Licensor will not disclose or share any Personal Information except for the limited purposes stated herein.
9.2. Licensor may disclose Personal Information to its affiliates, vendors, and subcontractors that provide services on behalf of Licensor for the purposes of carrying out the services contemplated in this Agreement or any applicable Software as a Service Agreement.
9.3. Personal Information may be used to send announcements, software updates, and promotional information regarding Licensor and the Software, including but not limited to, important updates and modifications to this Agreement and other terms and conditions. Personal Information may also be used to improve and develop Licensor products and services.
9.4. Licensor may use Personal Information for internal purposes such as auditing and data analysis.
9.5. As with most software, Licensor may collect certain non-personal information, including but not limited to, when the Software is accessed, IP addresses, URL requests, and browser type. Licensor may also store information known as "cookies" on User's computers, which is used by Licensor for record-keeping purposes. A User has the right to configure his or her browser to accept or reject all or some cookies or notify a browser user when a cookie is set.
9.6. Any use or access to the Software by anyone under the age of 13 is prohibited and in violation of this Agreement. By accessing and using the Software, each User represents that the User is at least 13 years old. Users who are at least 13 years old but under the age of 18 may only use and access the Software with the consent of such User's parent or legal guardian.
9.8. Users understand and acknowledge that all Personal Information supplied to Licensor will be stored in and accessible from locations within the United States, for purposes of this Agreement, and may be subject to production or disclosure requirements by United States authorities in accordable with applicable United States laws.
9.9. User agrees that Licensor and its affiliates (directly and through their contractors) shall have a perpetual, irrevocable, royalty-free, right and license to use, modify, copy, and create derivative works of any data collected or stored with respect to or as a result of Users' use of the Software for Licensor's internal business purposes and for purposes of creating reports, data products, papers, and analyses that may be provided to others, provided that such data does not identify a specific User or any other individual by name without their consent.
9.10. Licensor takes the security of its Software and Personal Information seriously and take efforts to maintain the security, integrity and confidentiality of the Licensor systems. Please note that despite Licensor's efforts, factors beyond its control may result in the disclosure of Personal Information or other User identifiable information. Accordingly, Licensor cannot guarantee that Personal Information will be secure under all circumstances and Licensor offers no warranties or representations with regards to the maintenance or non-disclosure of Personal Information or other User identifiable information. Users agree that Licensor shall not be liable, under any circumstance, and User, for and on behalf of User and User's heirs, successors, assigns, and legal representatives, and User hereby forever releases and discharges Licensor from any and all liabilities, claims, damages, actions, and losses in any way related to or connected with any loss or disclosure of Personal Information or other User identifiable information.
9.12. HIPAA: Licensor respects a patient's right to maintain the privacy of his or her health information. Licensor's HIPAA policies are designed to ensure the appropriate security of all protected health information across the Software, in compliance with law and any application Business Associate Agreement.
Article 10. General Provisions
10.1. The terms and conditions of this Agreement and any applicable Software as a Service Agreement constitute the entire agreement between the each User and Licensor with respect to the subject matter hereof. This Agreement is binding upon the parties and their successors, subcontractors, and assigns, and the Users and their respective heirs and representatives.
10.2. Should any term or provision hereof be deemed invalid, void or enforceable both in its entirety and in a particular application, it shall be interpreted in such a modified way so as to make it not be invalid, void or unenforceable, and the remainder of this Agreement shall nonetheless remain in full force and effect.
10.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of North Carolina, and the parties hereby agree to submit to the exclusive personal jurisdiction of the courts of the State of North Carolina in any proceeding relating to this Agreement.
10.4. Failure by one party to enforce its rights under this Agreement shall not constitute a waiver of that party's rights for that or any subsequent breach of this Agreement.
10.5 The covenants and obligations contained in Sections 3.6, 4.1, 4.2, 6.1, 6,2, and Articles 7, 8, and 9 shall survive the termination or expiration of this Agreement and Users' rights to access and use the Software.