This End User License Agreement (“Agreement”) is made and entered into by and between IONIC Health Holding Technologies LLC, a Delaware limited liability company with an office at 11201 Cedar Avenue, Suite 600, Cleveland, Ohio 44106, and its Affiliates, (the “Company”; also referred to as “We” or “Our”) and the undersigned (either a “Client” or an “Authorized User”; in each case, also referred to as “You” or “Your”) as of the date set forth on the time stamp collected when accepting this Agreement online (the “Effective Date”).
THIS AGREEMENT GOVERNS YOUR RIGHTS AND RESPONSIBILITIES RELATING TO ACCESS AND USE OF THE SERVICES MADE AVAILABLE BY THE COMPANY. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN SUCH FREE TRIAL.
BY LOGGING INTO THE SERVICE OR BY EXECUTING AN ORDER RELATED TO THIS AGREEMENT, YOU INDICATE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE LEGALLY BOUND BY THIS AGREEMENT INCLUDING THE PROVISIONS RELATED TO COLLECTION, STORAGE, USE AND PROTECTION OF PERSONAL INFORMATION. YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE ACCESSINGAND USING THE SERVICES. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW, DO NOT USE THE SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT AS A REPRESENTATIVE OF A CLIENT, YOUR ACCEPTANCE IN ANY OF THE FORMS MENTIONED ABOVE REPRESENTS THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT RELATING TO YOUR OWN ACCESS AND ALSO HAVE THE AUTHORITY TO BIND SUCH CLIENT AND ITS AFFILIATES TO THIS AGREEMENT INCLUDING ALL OF THE TERMS AND CONDITIONS HEREIN, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL ALSO REFER TO SUCH CLIENT FOR WHICH YOU ARE A REPRESENTATIVE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW OR DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT ON BEHALF OF A CLIENT AND MAY NOT USE THE SERVICES.
NOTWITHSTANDING THE FOREGOING:
(1) YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A COMPETITOR OF THE COMPANY OR FOR ANY MONITORING, BENCHMARKING OR COMPETITIVE PURPOSES.
(2) YOU MAY ONLY USE THESE SERVICES IN THE FOLLOWING TERRITORIES IN WHICH THEY ARE APPROVED FOR USE: The United States, Canada, Mexico, Brazil, Chile, Argentina, United Kingdom, Germany, Portugal, Spain, Italy, Austria, Belgium, Denmark, Finland, France, Greece, Ireland, Malta, Netherlands, Norway, Poland, Spain, Sweden, Switzerland, Estonia, Romania, Australia, and New Zealand.
WHEREAS, the Company is engaged in the business of development and commercialization of various innovative medical imaging equipment and software that enables medical professionals to remotely operate, monitor and generate reporting related to medical imaging equipment, including the Company’s nCommand (including nCommand Lite) and nVirtual branded set of products and services associated with its (“Company Products”);
WHEREAS, a Client may order services related to the Company Products from the Company’s authorized distributor and reseller, GE Precision Healthcare LLC and its Affiliates (“GEHC”) or may order directly from the Company; and
WHEREAS, the Client and/or Authorized User desires to use the Services, subject to the following terms and conditions.
NOW, THEREFORE, for the mutual promises contained herein and for other good and valuable consideration set forth herein, the parties agree as follows:
1. Definitions.
“Affiliate” means, with respect to a Party, any entity, including, any individual, corporation, company, partnership, limited liability company or group with more than fifty percent (50%) of the outstanding shares or securities entitled to vote for the election of directors or other managing authority of, or ownership interest entitled to make decisions for such Party (other than any shares or securities or ownership interest whose voting rights or decision making is subject to restriction), whether now existing or subsequently created or acquired at any time during the Term of this Agreement, that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Party.
“Applicable Laws” means all laws, rules, regulations, restrictions, orders, ordinances, codes, injunctions and decrees of any governmental entity that are applicable to the provision of and use of the Services, including in each case such applicable laws, rules, regulations, restrictions, orders, ordinances, codes, injunctions and decrees of any governmental entity that apply in the Territories in which the Client Systems and Client are located.
“Authorized User” means any natural or legal person, or someone on their behalf, in each case authorized to use one or more Company Products solely for the benefit of the Client and only after completing the Services Training required by the Company.
“Client” means any company or other entity that subscribes to one or more Services for which a Company Profile is created that contains data, documents, policy configurations, workflows, and other information relating to the entity and its Authorized Users.
“Client and Authorized User Data” or “Your Data” means all information processed or stored on computers or other electronic media by the Client or Authorized User, or that is generated or gathered by or processed by any third party for, or in relation to, the Client or Authorized User, or that is otherwise generated or gathered or processed on Client or Authorized User’s behalf by any third party including all data used to set up and maintain the Client or Authorized User’s access, use and all associated records involving or associated with the Client or Authorized User, or provided to the Company for such processing or storage, as well as any information derived from such information including, without limitation: (a) information on paper or other non-electronic media provided to Client or Authorized User for computer processing or storage, or information formerly on electronic media; (b) information provided to Company through the Services by the Client or Authorized User or any other third parties; and (c) any personal information provided by or for such Client or Authorized Users.
“Client Systems” means computer systems or computer memory spaces owned or leased by the Company or GEHC that are located in the Territory in which a Client is located that contain the production version of the Company Products and from which the Services may be accessed (statically or dynamically) by Authorized Users employed by or engaged by such Client from any location worldwide.
“Free-Trial Services” means any Company Products that the Company makes available to the Client with which You are employed or engaged free of charge for a limited time in order for You to evaluate such Company Products to determine if use after the free time period is desirable.
“Manager” is an Authorized User who was given access privileges that allow such person to manage an enumerated, but adjustable, list of authorized users profiles and interactions with the Services to which the Client with which You are employed or engaged has subscribed.
“Non-Company Products & Services” means any product or service (regardless of whether it is web-based, mobile-based, offline or in any other form) that is not owned by the Company, including without limitation, any product or service that is offered by GEHC for use with any of the Services, unless GEHC acquires such products or services from Company, in which case this definition does not apply.
“Order” means an ordering document which refers to this Agreement and includes a description of the Services to be provided, the start date and term applicable to the Services, and associated fee and payment information, that is entered into between the Client with which You are employed or engaged and the Company or GEHC.
“Purchased Services” means any Company Products that the Client with which You are employed or engaged purchases under a fully executed Order; except that the term “Purchased Services” does not include Free-Trial Services or Beta Services.
“Services” means the Purchased Services, Free-Trial Services and/or Beta Services relating to one or more Company Products to which the Client with which You are employed or engaged has subscribed under an applicable Order.
“Services Training” means the training sessions and materials provided by the Company to each Authorized User, as such sessions and materials may be modified from time to time by the Company in its sole discretion.
“Territory” means the United States, Canada, Mexico, Brazil, Chile, Argentina, United Kingdom, Germany, Portugal, Spain, Italy, Austria, Belgium, Denmark, Finland, France, Greece, Ireland, Malta, Netherlands, Norway, Poland, Spain, Sweden, Switzerland, Estonia, Romania, Australia, and New Zealand.
2. Provision of Services Generally.
The Company will make the Services available to the Client and Authorized Users promptly following the Effective Date in accordance with the terms of this Agreement and any applicable Order. The agreement between the Company and Client and Authorized Users shall not restrict the Company from providing or performing the same or similar services for any third party. In regard to the sale of Services by Company, the Company reserves the right in its sole discretion to (i) amend, modify or withdraw any portion of the Services at any time for any reason it deems sufficient, or (ii) cease providing any portion of the Services. Any and all problems relating to the Services should be first directed to the Client with which You are employed or engaged so it can troubleshoot to determine if the issue relates to the Client’s infrastructure or information technology systems or third-party systems outside the control of the Company. If it is determined that the problem lies with the Services, you may reach out directly to the GEHC on behalf of the Company which will provide the first tier of Support and will connect You with the Company for higher levels of support if necessary (or if the Order is directly with the Company, You may reach out directly to the Company which will provide all support). Services are provided in relation to subscriptions under applicable Orders. Purchased Services may be added during a subscription term via execution of an additional Order by the Client with which You are employed or engaged and GEHC (or if the Order is directly with the Company, to the Company), in each case that includes terms relating to pricing and the term of the subscription period. Except as otherwise provided in this Agreement, the Company grants to the Client and each Authorized User a limited, non-exclusive, non-transferable, and non-assignable, right to access and use the Services solely for Client’s internal business purposes.
3. Provision of Purchased Services; Support.
Company will use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which the Company shall use reasonable efforts to provide advance electronic notice), and (ii) any unavailability caused by circumstances beyond the Company’s reasonable control, including, for example, any act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, third party services, Internet service provider failure or delay, denial of service attack, or any event relating to any Non-Company Applications & Services. The Client’s and each Authorized User’s right to use the Purchased Services under an applicable Order and all related rights herein shall be conditioned on timely payment of fees and costs by the Client under the terms of the applicable Order and Section 4 below.
THE SERVICES DO NOT STORE, AND THE COMPANY WILL NOT STORE, ANY CONTENT OR DATA YOU ENTER INTO THE FREE-TRIAL SERVICES OR THAT ARE OUTPUT FROM THE SERVICES. ANY CLIENT AND AUTHORIZED USER DATA OR ANY OTHER DATA THE CLIENT WISHES TO RETAIN MUST BE STORED BY THE CLIENT.
NOTWITHSTANDING ANY OTHER CONTRARY PROVISIONS OF THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY AND ITS AFFILIATES AND REPRESENTATIVES AND ALL OTHER THIRD PARTIES FOR ANY DAMAGES ARISING OUT OF YOUR USE OR MISUSE OR ATTEMPTED MISUSE (INCLUDING RELATING TO USE OF THE SERVICES THAT CAUSE HARM TO ANY PERSON OR PROPERTY AND MISUSE OR ATTEMPTED MISUSE RELATING TO HACKING OR UNAUTHORIZED MODIFICATION OF THE SERVICES) OF THE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT, AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN EACH CASE, DURING THE TERM OF THIS AGREEMENT AND ANY APPLICABLE SURVIVAL PERIODS WHICH APPLY.
Please review the applicable documentation presented to You or provided along with the Services so that You become familiar with the features, functions, limitations and restrictions relating to such Services before You commence use of any applicable Services.
4. Provision of Free-Trial Services; Support.
If the Client with which you are employed or engaged registers for or is registered for any Free-Trial Services, the Company will make one or more Free-Trial Services available to You on a trial basis and free of charge to the Client until the earlier of: (a) the end of the free trial period for which the Client is registered to use the applicable Free-Trial Service(s), (b) the start date of any Purchased Service subscription(s) ordered by the Client with which you are employed or engaged for any Service(s) that is the same or similar to the Free-Trial Services to which it subscribed, or (c) termination of the Client’s and/or Your access to the Free-Trial Services by the Company which may be done at any time in our sole discretion. Additional trial terms and conditions that appear on the Order associated with the Free-Trial Services are fully incorporated into this Agreement by reference herein and are legally binding.
THE FREE-TRIAL SERVICES DO NOT STORE, AND THE COMPANY WILL NOT STORE, ANY CONTENT OR DATA YOU ENTER INTO THE FREE-TRIAL SERVICES OR THAT ARE OUTPUT FROM THE SERVICES. ANY CLIENT AND AUTHORIZED USER DATA OR ANY OTHER DATA THE CLIENT WISHES TO RETAIN MUST BE STORED BY THE CLIENT.
NOTWITHSTANDING ANY OTHER CONTRARY PROVISIONS OF THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE-TRIAL SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN EACH CASE, DURING THE FREE-TRIAL PERIOD.
Please review the applicable documentation presented to You or provided along with the Free-Trial Services during the trial period so that You become familiar with the features, functions, limitations and restrictions relating to such Free-Trial Services before You commence use of any applicable Free-Trial Services.
5. Ownership of Services; License to Client and Authorized User Data.
The Company, subject to the terms and conditions of and except as otherwise provided in this Agreement, grants to the Client and each Authorized User (including You) a limited, non-exclusive, non-transferable and non-assignable right to access and use the Services via one or more Client Systems solely for the benefit of the Client and each such Authorized User’s related purposes. Neither the Client nor any Authorized User (including You) has any rights in or to the Services except those that are expressly included as part of an applicable Order that has been fully executed by the Client and GEHC (or the Company if the Services are ordered directly from the Company), and as expressly granted to the Client and each Authorized User (including You) in this Agreement. The Company reserves to itself all rights to the Services not expressly granted to the Client and each Authorized User (including You) under this Agreement. The Company retains all copyright, trademark, patent, and other intellectual property rights in and to the Services. As between the parties, the Client and each Authorized User (including You) acknowledges that the Services, all copies of the Services, any derivative works, compilations, and collective works of the Services, and any know-how and trade secrets related to the Services are the sole and exclusive property of the Company and contain the Company’s confidential and proprietary materials. The Client and each Authorized User (including You) hereby grants to the Company a worldwide, revocable, and royalty free, license to host, copy, transmit and display, in compliance with Appliable Laws throughout the Territory, all or any portion of the Client and Authorized User Data, solely as reasonably necessary for the Company to provide the Services in accordance with this Agreement. GEHC is not responsible for any misuse, unauthorized disclosure, modification, transmission, or deletion of Your Data resulting from the rights You grant herein to the Company, its Affiliates or agents.
6. Responsibilities.
Authorized User: You will (a) be responsible for Your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of the data You supply to the Services including the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify the Company promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and all Applicable Laws and government regulations, and (e) comply with terms of service of any Non-Company Applications & Services with which You use. You hereby agree that, if You are provided with the authority and privileges to act on behalf of the Client, either as the Client representative that enters into this Agreement (or any extension) on behalf of the Client, or a Manager for the Client, then you hereby agree to all additional responsibilities, terms and conditions under this Agreement that are associated with such title you are authorized to assume by the Client (or Partner) with which you are associated.
Client: You will (a) be responsible for your Authorized Users’ compliance with this Agreement, and all associated Orders, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify the Company promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and all associated Orders and all Applicable Laws and government regulations, and (e) comply with terms of service of any Non-Company Applications & Services with which You use such Services.
Manager: Your responsibilities include: (a) assisting with access and maintenance of the Authorized Users for which you are responsible within the Client’s organization, and all related access control, data and maintenance issues, and (b) maintaining the security and privacy of all Client and Authorized User Data to which You have access.
7. Usage Restrictions.
The Client and each Authorized User (including You) will not (a) make the Services available to, or use the Services for the benefit of, anyone other than the Client, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include it in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or any data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, if any, (h) copy the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Services, other than framing on the intranets of Client, (k) access the Services for the purpose of monitoring availability or functionality, benchmarking, or otherwise assist with the creation and/or evaluation of any competitive service to the Services, or (l) reverse engineer the Services (except to the extent permitted by law).
8. Protection of Client and Authorized User Data.
The Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Client and Authorized User Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Client and Authorized User Data by the Company’s personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 16 (Compelled Disclosure) below, or (c) as part of aggregated, anonymized information relating to our Clients and Authorized Users (including You) of the Services if there is written agreement between You and Company to allow such use of aggregated and anonymized information. The Company shall exercise commercially reasonably efforts to prevent unauthorized exposure or disclosure of Client and Authorized User Data.
9. Client and Authorized User Responsibility for Data.
You will (a) be responsible for Your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of the Client and Authorized User Data that You input to the Services by or on behalf of the Client or yourself and the means by which You acquired such data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify the Company promptly of any such unauthorized access or use, and (d) use the Services only in accordance with the Agreement and Applicable Laws and government regulations.
10. Non-Company Providers.
GEHC or another third party may make available products or services that are Non-Company Products & Services for use in association with the Services. Accordingly, Non-Company Products & Services may contain features, or be modified by such third parties to include features, that allow them to interoperate with the Services. To use such features, You may be required to agree to such third party providers’ terms and conditions relating to the Non-Company Products & Services that are separate and apart from the terms of this Agreement. The Company has no control over any Non-Company Products & Services or the terms and conditions associated with such Non-Company Products & Services and cannot guarantee the continued availability of the features of such Non-Company Products & Services or the interoperability of such Non-Company Products & Services with the Services, and the Company may cease providing and/or supporting the features that allow interoperability with such Non-Company Products & Services without entitling You to any refund, credit, or other compensation. The Company is not liable or responsible to You if the third-party provider of Non-Company Products & Services ceases to make the Non-Company Products & Services available in a manner acceptable to You. Furthermore, the Company (in conjunction with GEHC) may take action to block or prevent the use of any such Non-Company Products & Services with the Services at any time and for any reason.
Any usage by You of such Non-Company Products & Services, and any exchange of data between You and any Non-Company Products & Services provider in relation to any such third-party product or service, is solely between You and the applicable Non-Company Products & Services provider. The Company does not warrant or support, and is not liable for, any Non-Company Products & Services or any data You provide to the provider of such Non-Company Products & Services or to the Non-Company Products & Services or that is output from such products or services, whether or not such Non-Company Products & Services are designated by the third party provider or the Company as interoperable with the Services. If You choose to use any Non-Company Products & Services in conjunction with one or more of the Services, You grant the Company permission to allow the third party provider of the Non-Company Products & Services to access Your Data through such Non-Company Products & Services as required for the interoperation of such Non-Company Products & Services with the Services. The Company is not responsible for any use, disclosure, modification or deletion of Your Data resulting from access by such third-party provider of any Non-Company Products & Services or the Non-Company Products & Services themselves.
11. Confidentiality.
Each party agrees: (i) to use the confidential information of the other party (the “Disclosing Party”) only for the purposes associated with, and in accordance with, the terms and conditions of the Agreement; (ii) to use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care consistent with its past practices and any Applicable Laws, and to safeguard the Disclosing Party’s confidential information that is provided to it; and (iii) to only disclose confidential information provided by the Disclosing Party only, as allowed, to (1) employees, agents, affiliates and subcontractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written or ethical obligation to keep such information confidential and using standards of confidentiality not less restrictive than those required by the Agreement, or (2) if required by law or regulatory authorities, provided the party which has received the confidential information has given the Disclosing Party prompt notice before disclosure so that it may perform actions in an attempt to prevent disclosure at its sole option. Each party will protect from disclosure any confidential information disclosed by the other party for a period commencing upon the disclosure date until three (3) years thereafter, unless such confidential information comprises a trade secret under Applicable Law in which case such confidentiality information shall be protected for the duration of legal protection afforded such trade secret information under Applicable Law.
12. Compelled Disclosure.
Each party may disclose confidential information of the other party to the extent compelled by law to do so, provided that prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, is given if the party wishes to contest the disclosure.
13. DISCLAIMER OF WARRANTY.
THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE SERVICES AND ANY OTHER MATERIALS, SOFTWARE AND/OR INFORMATION PROVIDED BY THE COMPANY ARE PROVIDED "AS IS" AND "WITH ALL FAULTS," AND THE COMPANY DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENTS' OR ANY AUTHORIZED USER’S (INCLUDING YOUR) REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. In addition, the Company does not provide any warranties regarding (i) the accuracy of the results obtained through use of any of the Services, (ii) the accuracy of the data contained within any of the Services, (iii) that any of the Services will operate error free, or in an uninterrupted fashion, (iv) the security of any of the Services from intrusion or attack, or (v) the network, communications links or infrastructure You use.
14. LIMITATION ON LIABILITY.
IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CLIENT OR ANY AUTHORIZED USER, OR ANY THIRD PARTY, FOR ANY LOST REVENUE, PROFIT, OR DATA, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OR MISUSE (OR ATTEMPTED MISUSE) OF OR INABILITY TO USE THE SERVICES EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN ADDITION, IN NO CASE SHALL THE COMPANY BE LIABLE FOR ANY MISLEADING DIAGNOSTICS OR MISREADING OF RESULTS OR ANY NEGLIGENCE OR WILLFUL MISCONDUCT OR FRAUD OF THE CLIENT OR ANY AUTHORIZED USERS RELATING TO USE OR MISUSE OF THE SERVICES OR ANY OTHER ACTIONS OR INACTIONS OF THE CLIENT OR ANY AUTHORIZED USERS. IN NO EVENT SHALL THE COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ALL SERVICES PROVIDED TO THE CLIENT HEREUNDER, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE AMOUNT PAID, BY CLIENT FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO SUCH LIABILITY.
15. Compensation.
(a) By the Company. The Company shall defend and hold harmless the Client and Authorized Users against any claim, demand, suit or proceeding made or brought against the Client or Authorized User by a third party alleging that the use of the Services in accordance with this Agreement infringes, misappropriates or otherwise violates such third party’s intellectual property rights, and will indemnify the Client or Authorized User from any damages, reasonable outside attorney fees and costs finally awarded against the Client or an Authorized User as a result of, or for amounts paid by the Client or an Authorized User under a court-approved settlement of such claim, provided the Client or Authorized User, as applicable (a) promptly gives written notice of the claim, (b) gives the Company sole control of the defense and settlement of the claim (except that the Company may not settle any claim unless it unconditionally releases the Client or Authorized User, as applicable, of all liability), and (c) provides the Company with all reasonable assistance requested, at the Company’s expense. If the Company receives information about an infringement or misappropriation claim related to the Services, the Company may in its discretion and at no cost to the Client or any Authorized User (i) modify the Services so that it no longer infringes or misappropriates, without breaching the Company’s warranties, (ii) obtain a license for the Client and each Authorized User’s continued use of the Services in accordance with this Agreement, or (iii) terminate this Agreement and all related Orders (and the Client’s and all Authorized User’s right to use the Services) upon thirty (30) days’ written notice or with less notice if required by law or court order. Notwithstanding the foregoing, the above defense and indemnification obligations do not apply to the extent (i) a claim arises from the Client or Authorized User’s breach of this Agreement, gross negligence, fraud, or willful misconduct, or (ii) Client’s or any Authorized User’s combination of the Services with any other materials or hardware or software in a manner that causes infringement, misappropriation or another violation of any third party’s rights and such combination is the basis of such indemnity claim.
(b) By the Client & Authorized Users. The Client and Authorized User (i.e., You) shall defend and hold harmless the Company (and its’ affiliates, their employees and representatives) against any claim, demand, suit or proceeding (“Claims”) made or brought against the Company by a third party alleging that (i) any Client or Authorized User Data, Your use (or assistance with use) of the Services in breach of this Agreement, or Your combination (or assistance with the combination) of the Services with any other materials or hardware or software, infringes or misappropriates or otherwise violates such third party’s intellectual property rights or violates Applicable Law, or (ii) Your breach of this Agreement, negligence, fraud, or willful misconduct , and in each case the Client and You will indemnify the Company from any damages, reasonable outside attorney fees and costs expended by and finally awarded against the Company as a result of, or for any amounts expended in defending any such Claims and any amounts paid by the Company under a court-approved settlement of such claim, in each case jointly and severally, provided the Company (a) promptly gives the Client or such Authorized User written notice of the claim, (b) gives the Client or such Authorized User the option of taking sole control of the defense and settlement of the claim (except that neither the Client nor such Authorized User may settle any claim unless they each unconditionally releases the Company of all liability), and (c) gives the Client or such Authorized User all reasonable and required assistance, at the Client or such Authorized User’s expense.
16. Term and Termination.
This Agreement, and the rights to access and use the Services commences on the Effective Date and continues for an initial period of one (1) year, after which automatically renews for successive one (1) year periods unless and until either: (i) all Order’s and related subscriptions related to this Agreement have expired or have been terminated by the Client, or (ii) in relation to You or Your status as an Authorized User changes such that You are a former employee or contractor that is no longer entitled to the benefits hereunder. The Company may terminate this Agreement for any reason immediately by revoking the Client and/or any Authorized User’s (including Your) access to the Services. The term of each Order and related subscription associated with this Agreement, regardless of whether related to Purchased Services, and/or Free-Trial Services shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions for Purchased Services will automatically renew for additional periods of one year, unless the Client or the Company gives the other notice of non-renewal at least thirty (30) days prior to the end of an applicable subscription term.
17. Dispute Resolution.
In connection with any dispute arising from this Agreement, the parties shall attempt to resolve such dispute by utilizing the procedure specified in this Section 22 herein.
(a) Negotiation by Individuals: To commence resolution of a dispute, either party may send written notice (“Notice”) to the other party containing a concise summary of the dispute and requesting negotiations. Within seven (7) days following receipt of such Notice by the other party, each party will make such investigation as each deems appropriate and will promptly, but in no event later than thirty (30) days from the date of the Notice, communicate to attempt to resolve the dispute. If the dispute has not been resolved within forty-five (45) days of the first communication between the parties in furtherance of resolving the dispute, arbitration proceedings may be commenced by either party, as set forth immediately below in Section 22(b) below.
(b) The law of the Republic of Portugal shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of laws rules. If you are a consumer habitually resident in the EU, you also enjoy protection of the mandatory provisions of the law of your country of residence. The non-exclusive jurisdiction of the Portuguese courts is agreed. This means that You may bring action to enforce your consumer protection rights in connection with this EULA either in Portugal or in your country of residence.
In case of any disputes relating to the interpretation, performance or validity of this EULA, an amicable solution will be sought before any legal action, unless otherwise required by the laws of your country of residence.
If you reside in the EU (also in Norway, Iceland or Liechtenstein), you may address the European Commission through its Online Dispute Resolution (ODR) platform for EU consumers, available at: https://ec.europa.eu/consumers/odr/. In addition, you have the right to contact out-of-court dispute resolution bodies in your country of residence in case of a dispute with us based on the consumer protection law.
The Company may freely assign this Agreement, without consent. The Client or Authorized User may not assign this Agreement. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement constitutes the entire agreement between the parties with respect to the Services and supersedes all prior agreements, proposals, representations, and undertakings between the parties in relation to the subject matter hereof (whether written or oral) and may not be modified or amended by the Client or Authorized User without the prior written consent of the Company. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. No waiver of any rights arising under this Agreement shall be effective unless in writing and signed by a duly authorized signatory of the party against whom the waiver is to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
THE CLIENT OR AUTHORIZED USER MAY INDICATE ACCEPTANCE OF THIS AGREEMENT AND ALL THE TERMS AND CONDITIONS HEREIN BY LOGGING IN TO THE SERVICE AND INPUTTING THE REQUIRED INFORMATION.
