END USER LICENSE AGREEMENT
THIS IS A LEGALLY BINDING AGREEMENT between NoteSwift, Inc., a Delaware corporation having a place of business in Arizona (together with its affiliates, “NoteSwift,” “we” or “us”), and you. BY CLICKING “I AGREE,” OR BY OTHERWISE SIGNING-UP FOR AN ACCOUNT, OR BY ACCESSING OR USING THE SOFTWARE OR SERVICES (DEFINED BELOW), YOU ARE ENTERING INTO THIS END USER LICENSE AGREEMENT AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. Please read this Agreement carefully, and do not sign-up for an account or use the Software or Services if you are unwilling or unable to be bound by this Agreement. You and we are collectively referred to as the “Parties.”
For the purposes of this Agreement, the terms set forth below have the meanings assigned to them. Terms not defined below or in the body of this Agreement (whether capitalized) have the definitions given to them in HIPAA.
“Agreement” means this end user license agreement.
“De-Identified Health Information” means health information that has been de-identified in accordance with the provisions of the Privacy Rule.
“De-Identified Information” means De-Identified Health Information and De-Identified Personal Information.
“De-Identified Personal Information” means Personal Information from which all identifiers that could reasonably be anticipated to identify an individual by an anticipated recipient – such as an individual’s name, contact information, or government identifiers – have been removed.
“De-Identify,” means (i) with respect to Personal Information, to make such information into De-Identified Personal Information, and (ii) with respect to health information, means to make such health information into De-Identified Health Information.
“HIPAA” means the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and the Security Rule, as amended.
“HITECH Act” means the Health Information Technology for Economic and Clinical Health Act of 2009, and regulations promulgated thereunder.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between you and us, including any addenda and supplements thereto.
“Personal Information” means information that includes an individual’s name, contact information, government identifiers, or includes identifiers that could reasonably be anticipated to identify an individual personally by an anticipated recipient.
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E, as amended.
“Protected Health Information” has the meaning given it in the Privacy Rule.
“Services” means our electronic health record input service and other operations, workflow solutions and other services provided by us to you.
“Software” means the software accompanying this Agreement and any modified versions, updates, or upgrades of the Software licensed to you by NoteSwift.
“Workforce” means your employees, volunteers, trainees, and other persons whose conduct, in the performance of work, is under your direct control.
“Your Health Information” means Protected Health Information that you or your Workforce input or upload onto the Services, or that we receive on your behalf from your patients, authorized service providers, or our third party partners pursuant to this Agreement.
“Your Information” means information that you or your Workforce input or upload onto the Services, including Your Personal Information and Your Health Information.
“Your Personal Information” means Personal Information that you or your Workforce enter or upload onto the Services.
1. Grant of License
(a) Subscription Based License. Your license is a subscription-based license, NoteSwift grants you a non-exclusive, personal, non-transferable, limited right to access and use the Services during the Term, subject to your full compliance with the terms and conditions set forth in this Agreement. You will obtain no rights to the Services except for the limited rights to use the Services expressly granted by this Agreement. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
2. NoteSwift’s Rights
You acknowledge that the Software and Services consist of proprietary information and products of NoteSwift (or other third parties) protected under United States or other patent, copyright, or trade secret laws. You further acknowledge and agree that all right, title and interest in and to the Software and Services, and each component thereof, are and shall remain with NoteSwift. This Agreement does not convey to you an interest in or to the Software or Services but only a limited right to use, revocable in accordance with the terms of this Agreement.
(a) Subscription. Your license is subscription based, this Agreement commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 90 days before the end of the relevant subscription term. The per-unit pricing during any renewal term may increase by up to 10% above the applicable pricing in the prior term.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. On termination of the Agreement, you will discontinue use of the Software and Services and destroy or return to licensee all copies of the Software.
5. Other Restrictions and Requirements
(a) You may not sub-license, rent, lease, or otherwise commercialize the Software in any manner.
(b) You may not reverse engineer, decompile, modify, create derivative works of, or disassemble the Software or Services. You may not use any feature of the Software or Services to commercialize in any other manner. The foregoing restriction is applicable to you except to the extent that such restriction is expressly prohibited by applicable law.
(c) You may not modify, make additions to or otherwise adapt the Software, or use the Software in conjunction with other software or data packages, for the purpose of enabling or adding features or functionality from another version or edition of the Software or development tool associated with the Software.
(d) You may only use the Software and/or Services in accordance with and in the manner intended by its accompanying documentation.
(e) You may not publish the results of benchmarking the Software or Service against competitive software or services, except to the extent that the foregoing restriction is expressly prohibited by applicable law.
(f) You may not transfer or assign this license or the Software to any third party without the prior express written consent of NoteSwift. Any changes to, modifications to, or derivative works (except as set forth above) of the Software and/or Service shall become the exclusive property of NoteSwift except to the extent that the foregoing restriction is expressly prohibited by applicable law.
(g) During the Term and for two (2) years after its expiration or termination, you will maintain accurate records of your use of the Software and/or Services sufficient to show compliance with the terms of this Agreement. During this period, NoteSwift will have the right to audit your use of the Software and Services to confirm compliance with the terms of this Agreement. That audit is subject to reasonable notice by NoteSwift and will not unreasonably interfere with your business activities. NoteSwift may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with NoteSwift and any third-party auditor and will, without prejudice to other rights of NoteSwift, address any non-compliance identified by the audit by promptly paying additional fees. You will promptly reimburse NoteSwift for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software and/or Services fees payable by you for the period audited, or that you have materially failed to maintain accurate records of Software and/or Services use.
6. Software Activation
NoteSwift has designed the Software to prevent unlicensed use of the Software. You agree that NoteSwift may do so. Use of the Software requires that you activate the Software as described during the installation of the Software. During such activation, NoteSwift may collect certain non-personal technical information from your computer concerning your computer or network. You agree that NoteSwift may do so. You may be required to reactivate the Software if you modify your computer hardware, the Software, or the operating system.
The Software contains a component that will automatically activate your Internet browser and attempt to initiate a connection through the Internet to a website maintained by NoteSwift. This connection will be made using the Internet connections and telephone lines under your control. From time to time, you may receive notices about the Software or other information through this Internet connection. By installing the Software on your computer, you hereby consent to have the Software initiate a connection through the Internet to NoteSwift’s website, to use your resources to connect to such website, and to receive notices about the Software and other information through this Internet connection.
8. Proprietary Rights
(a) Ownership. Title, ownership rights, and intellectual property rights in the Software and Services shall remain in NoteSwift and/or its suppliers or licensors. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit, or interfere in any manner with NoteSwift’s or its suppliers’ or licensors’ ownership of or rights with respect to the Software Package. The Software and Services are protected by copyright and other intellectual property laws and by international treaties.
(b) Individually Identifiable Health Information. You retain all rights with regard to Your Health Information, and we will only use such information as expressly permitted in this Agreement.
(c) De-Identified Information. In consideration of the licenses granted herein to the Software and our provision of the Services, you hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Information. You agree that we may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are the principal consideration for the provision of the Software and/or Services, without which we would not enter into this Agreement.
(d) Other Works and Information. You hereby grant to us a nonexclusive, royalty-free, fully paid-up, perpetual, irrevocable, worldwide and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display any information, material or work product – other than Your Information that has not been De- Identified – you provide to the Software and/or Services. You agree that we may use, disclose, market, license, and sell such information and works, including derivative products, without restriction. This includes, for example, custom templates that you create using the Software and/or Services, and information (other than Your Information that has not been De-Identified) that you contribute to forums, discussion groups and the like. Furthermore, you agree that we may use, disclose, market, license and sell such material or content, and that you have no interest in the information, or in the proceeds of any sale, license, or other commercialization thereof. You warrant and agree that any material you provide will not infringe or otherwise violate the intellectual property or other rights of others, and will not be otherwise unlawful, infringing, threatening, libelous, defamatory, obscene, pornographic, or in violation of any law.
9. Disclaimer of Warranty
THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND/OR SERVICES IS BORNE BY LICENSEE. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT NOTESWIFT OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE OR REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE AND/OR SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability
IN NO EVENT WILL NOTESWIFT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR SERVICES, INCLUDING THE SOFTWARE, SERVICES OR DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL NOTESWIFT’S LIABILITY EXCEED THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE AND/OR SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO IN THOSE STATES OR JURISIDICTIONS, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. AS A CONDITION OF YOUR USE OF THE SOFTWARE AND/OR SERVICES, YOU AGREE TO INDEMNIFY NOTESWIFT FOR ALL CLAIMS RELATING TO YOUR USE, REPRODUCTION AND/OR RECEIPT OF CONTENT THROUGH USE OF THE SOFTWARE PACKAGE.
You shall not sublicense, rent, lease or lend the Software to another party.
If you breach this Agreement, you will cause irrevocable harm to NoteSwift, and NoteSwift shall be entitled to injunctive and/or other equitable relief, in addition to any other remedies afforded by law.
13. Governing Law
This Agreement shall be governed by the laws of the State of Arizona.
Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
15. No Waiver
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
16. United States Government End Users
This Section applies to all acquisitions of the Software or use of the Services by or for the Federal government or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the Federal government. By accepting delivery of the Software, the government hereby agrees that this software qualifies as “commercial” computer software within the meaning of the acquisition regulation(s) applicable to the procurement. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Software and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to NoteSwift. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights-Use, duplication, and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).” In the event any of the above referenced agency regulations is amended or replaced, the equivalent successor regulation shall apply instead.
17. You expressly agree that NoteSwift is not a licensed health care provider and that the Software and/or Services is not a substitute for independent medical decision making by a qualified health care practitioner. You are solely responsible for your own conduct with respect to patient care and any reliance upon the Software and/or Services shall not diminish your responsibility for patient care that you may be involved or associated with.
18. Export Restrictions
The Software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software.
Copyright © 2010-2018 NoteSwift, Inc. All rights reserved. NoteSwift and the NoteSwift logo are trademarks or registered trademarks of NoteSwift, Inc. or its affiliates in the United States and/or other countries.