Health Website and Mobile Application End User License Agreement
This Health Website and Mobile Application End User License Agreement (“Agreement”) is a binding agreement between you (“User” or “you”) and InfuCare Rx Inc. and its subsidiaries (collectively, the “Company”). This Agreement governs your use of the InfuCare Rx +Health platform on both web and mobile interfaces (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY CLICKING THE “AGREE” BUTTON AND/OR 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) REPRESENT THAT IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN EMPLOYEE OR OTHER REPRESENTATIVE OF A BUSINESS, YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON SUCH BUSINESS’ BEHALF AND BIND THE BUSINESS TO THE TERMS AND CONDITIONS HEREOF; AND (D) ACCEPT THIS AGREEMENT AND AGREE THAT YOU/YOUR BUSINESS ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND, IF APPLICABLE, DELETE IT FROM YOUR MOBILE DEVICE.
- LICENSE/USER RESTRICTIONS AND OBLIGATIONS. User is granted permission to access, stream, download and use the Application, Content and Services, provided that User shall: (a) Not use the Application, Content or Services for any illegal or unauthorized purpose or beyond the scope of the expected use; (b) Not intentionally interfere with the operation of the Application, Content or Services or with any other person’s use of the same; (c) Not intentionally gain unauthorized access to the Application, Content or Services; (d) Be solely liable for User’s, including without limitation, all of its employees, affiliates, consultants, service providers, and users conduct, acts and omissions; (e) Not alter, modify, adapt, reverse engineer, decompile, disassemble, or hack the Application, Content or Services (including, but not limited to attempting to derive the source code), or create derivative works or improvements, whether or not patentable, of the Application, Content or Services; (f) Not merge the Application, Content or Services with any other software or application; (g) Not rent, resell, sell, lease, lend, redistribute, sublicense, publish, transfer, assign or otherwise make available the Application, Content or Services, or any features or functionality of the Application, Content or Services, to any third party for any reason; (h) Not remove, delete, alter or obscure any copyright, service mark or trademark notices, or patent or other intellectual property or proprietary rights notices included in the Application, Content or Services; (i) Not use the Application, Content or Services to create or transmit unwanted email, junk email, bulk email, promotions, spam, or content that includes any advertising; (j) Not intentionally transmit any viruses, bugs, worms, or any other computer code of a destructive nature or that may harm a network, computer, server, hardware, software, or telephone equipment using the Application, Content or Services; (k) Not violate anyone else’s legal rights (e.g., privacy rights) or any laws (e.g., copyright laws) in User’s jurisdiction while using the Application, Content or Services; (l) Remain solely responsible for any message data sent from User’s account; (m) Use the Application, Content or Services in accordance with all applicable laws; (n) Not use any data mining, robots, or similar data gathering and extraction methods in connection with the Application, Content or Services; (o) Not impose an unreasonable burden on the Application, Content or Services or network; (p) Not breach, or attempt to breach, the security of the Application, Content or Services, by removing, disabling, circumventing, or otherwise creating or implementing any workaround to any copy protection, rights management, or security features in or protecting the Application, Content or Services; (q) Not use or export the Application, Content or Services in violation of U.S. export laws and regulations; (r) Not solicit any activity, unlawful or otherwise, that infringes InfuCare Rx’ rights or the rights of any other party; (s) Not enable others to violate any of these terms and conditions; and (t) Ensure that all users of the Application, Content or Services are at least 18 years of age or older. Further, User agrees that User shall not use any persons, means, devices or arrangements to engage in or circumvent any of the foregoing, or commit fraud, manipulate results or information generated or collected in connection with the Application, Content or Services.
- INTELLECTUAL PROPERTY. You acknowledge and agree that the Application, Content and Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Application, Content and Services used or claimed now or in the future under this Agreement, or any other rights thereto other than to use the Application, Content and Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, Content and Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto including, but not limited to, those used or claimed now or in the future, as well as all enhancements, updates, modifications, local versions or any derivatives of the Application, Content and Services, except as expressly granted to you in this Agreement. User shall take no position contrary to, or that would diminish, the ownership rights set forth herein. User is solely responsible for all content and information User stores, transmits, generates, and processes through use of the Application, Content and Services (“User Materials”).
“InfuCare Rx,” “InfuCare Rx Health” and other InfuCare Rx/Company graphics, logos, designs, page headers, buttons, icons, scripts and service names are copyrighted, service marked or trademarks in the United States. InfuCare Rx’s and the Company’s logos, copyrights, service marks, trademarks and trade dress, as well as third party trademarks, logos and service marks used in conjunction with the Application, Content and Services, may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be removed, copied, imitated, or used, in whole or in part, without the prior written permission of the Company.
- GEOGRAPHIC RESTRICTIONS. The Application, Content and Services are based in the state of New Jersey in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Application, Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Application, Content and Services from outside the United States, you are responsible for compliance with local laws.
- UPDATES. Company may from time to time in its sole discretion develop and provide Application updates, which may include, but is not limited to, upgrades, bug fixes, patches, 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 Company has no obligation to provide any Updates or to continue to provide or enable any features or functionality. Based on your Device settings when your Device is connected to the internet either: (a) the Application will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- THIRD-PARTY MATERIALS. The Application, Content and Services may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions, for which you are responsible for obtaining, understanding, and conducting yourself in compliance therewith.
- TERM. This Agreement shall be effective as of the date User accepts the terms herein or first registers, accesses, downloads or uses any of the Application, Content or Services (the “Effective Date”) and shall continue in effect until terminated by you or the Company as set forth in Section 10.
- TERMINATION. You may terminate this Agreement by deleting the Application, Content and Services and all copies thereof from your Device, and by deleting your user account. You may seek assistance in terminating this Agreement by contacting email@example.com. The Company may terminate this Agreement at any time without notice if it ceases to support the Application, Content or Services, which Company 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. Company may, in its sole discretion, terminate this Agreement at any time upon three (3) days’ written notice if User’s continued access to the Application, Content or Services may harm Company or expose it to material liability. Upon termination (a) all rights granted to you under this Agreement will also terminate; and (b) termination will not limit any of the Company’s rights or remedies at law or in equity.
- DISCLAIMER OF WARRANTIES. USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE APPLICATION, CONTENT AND SERVICES IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH USER. THE APPLICATION, CONTENT AND SERVICES ARE PROVIDED TO USER “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND THE COMPANY FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE COMPANY IS NOT RESPONSIBLE FOR ANY DECISIONS MADE AS A RESULT OF THE USE OF THE APPLICATION, CONTENT AND SERVICES. THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION, CONTENT AND SERVICES WILL MEET USER’S SPECIFIC REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR THAT THE OPERATION OF THE APPLICATION, CONTENT AND SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. THE COMPANY SHALL NOT BE LIABLE TO USER FOR ANY INOPERABILITY OF THE APPLICATION, CONTENT OR SERVICES OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. THE COMPANY SHALL NOT BE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THIRD PARTIES. ADDITIONALLY, THE COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH USER’S ENJOYMENT OF THE APPLICATION, CONTENT AND SERVICES OR THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE APPLICATION, CONTENT AND SERVICES WILL MEET USER’S REQUIREMENTS. USER FURTHER ACKNOWLEDGES THAT THE APPLICATION, CONTENT AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE APPLICATION, CONTENT AND SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, FINANCIAL OR ENVIRONMENTAL DAMAGE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION, CONTENT AND SERVICES PROVE DEFECTIVE, USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, IF APPLICABLE.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, PARENTS OR SUBSIDIARIES, 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, CONTENT OR 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; AND/OR (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 COMPANY/USER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- INDEMNIFICATION. You agree to indemnify, defend, and hold harmless the Company, its Parent(s), and subsidiaries, and its and their shareholders, owners, officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgements, settlements, interest, awards, penalties, fines costs and expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of, access to, the Application, Content or Services, or your breach of this Agreement, including, but not limited to, the content you submit or make available through the Application, Content and Services.
- 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, CONTENT OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- EQUITABLE RELIEF. The parties agree that a material breach of this Agreement adversely affecting the Company including, but not limited to, its intellectual property rights in the Application, Content or Services, may cause irreparable injury to the Company for which monetary damages would not be an adequate remedy. Accordingly, the Company shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
- WAIVER. 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.
- ASSIGNMENT. User may not transfer or assign this Agreement, in whole or in part, without the Company’s prior written consent. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. The Company may, in whole or in part, delegate, assign or transfer its rights, duties and obligations hereunder without the consent of the User.
- SEVERABILITY. In the event any one or more of the terms or provisions contained in this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement or any application thereof shall not in any way be affected or impaired; except that, in such an event, this Agreement shall be deemed revised in order to provide the party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such a declaration, to the maximum extent legally permitted.
- DATA. User agrees that the Company may (a) process all data, including User’s Protected Health Information (as defined under HIPAA), provided to Company by or on behalf of User for the purpose of operating the Application, Content and Services for the benefit of User and (b) use for any purpose, during and after the term of this Agreement, de-identified data derived from User’s Protected Health Information as a result of User’s use of the Application, Content or Services solely the extent used in accordance with HIPAA and any other applicable law(s).
- FORCE MAJEURE. Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, civil unrest, pandemics, epidemics, and/or acts of terrorism. Notwithstanding the foregoing, in the event of such an occurrence, each party agrees to make a good faith effort to perform its obligations hereunder.
- ENTIRE AGREEMENT. This Agreement, together with any documents referenced herein, supersedes and replaces all prior discussions, communications, understandings and writings by and between User and the Company, and constitutes the entire agreement between the parties with respect to the subject matter hereof.
- GOVERNING LAW. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to any conflict of law provisions. Each party irrevocably agrees that any claim brought by it in any way arising out of this Agreement must be brought solely and exclusively in state or federal court located in New Jersey, including any appellate matters thereof, and each party irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.