End User License Agreement for CareSight, LLC Products
(the CareSight Terms and Conditions)
IMPORTANT - PLEASE READ THE CARESIGHT TERMS AND CONDITIONS CAREFULLY. BY CLICKING THE “I ACCEPT THE TERMS IN THE CARESIGHT TERMS AND CONDITIONS” BUTTON, (A) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY CARESIGHT TERMS AND CONDITIONS AND ALL OF THE TERMS CONTAINED HEREIN, (B) THE LICENSED PRODUCTS AND SOFTWARE THAT ARE THE SUBJECT OF THIS AGREEMENT ARE LICENSED TO YOU, NOT SOLD TO YOU, AND (C) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY, OR IF YOU HAVE NAMED A COMPANY AS LICENSEE, ON BEHALF OF THAT COMPANY (YOU OR ANY SUCH COMPANY, “YOU”), AND TO BIND YOU TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE CARESIGHT TERMS AND CONDITIONS, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST CLICK ON THE “CANCEL” BUTTON TO DISCONTINUE THE INSTALLATION OF THE LICENSED SOFTWARE AND YOU ARE NOT PERMITTED TO USE THE LICENSED SOFTWARE OR ANY PORTION THEREOF.
1. These CareSight Terms and Conditions govern all of CareSight’s offerings and features provided or otherwise made available to you, including the software by which CareSight analytics and reporting services are enabled (the “Licensed Software”), the information, data and documentation contained on CareSight’s website(s) or otherwise provided or made available to you or that exists in customer and partner portals, and all other collateral information provided by CareSight from time to time (such Software and all other offerings and features collectively called the “Licensed Products”).
2. Subject to these CareSight Terms and Conditions, You are granted a nontransferable, nonexclusive, revocable, limited license (without the right to sublicense) to permit You to (a) use, execute, and display the Licensed Software, in executable object code format only, solely for Your own internal business operations and in accordance with the license for which You have paid the applicable fees; (b) use the Licensed Products. The Licensed Products made available to You may only be used by You and only for professional use.
3. Except as expressly provided in these CareSight Terms and Conditions, You shall not and you shall not permit others to (a) reverse engineer, disassemble, decompile, decode, or adapt the Licensed Products, or otherwise attempt to derive or gain access to the source code or algorithms of the Licensed Products, in whole or in part or incorporate any of the Licensed Products, in whole or in part, in any other work or system; (b) rent, lease, license or sublicense assign, pledge, publish or sell the CareSight Products to any third party or permit any unauthorized use of any of the Licensed Products (c) use any of the Licensed Products to provide time sharing or service bureau services to third parties, or to use any of the Licensed Products, or any portion thereof, to develop a commercial product or software competitive with any of the Licensed Products;(d) remove, obscure, or alter from the CareSight Licensed Products, any titles, trademarks, or copyright, patent, or other proprietary or restrictive legends or notices, or any end user warning or advisory, affixed to or contained therein or thereon; (e) export or re-export all or any part of the CareSight Licensed Products in violation of any export control Laws of the United States or any other relevant jurisdiction; (f) modify, correct, rewrite, adapt, translate, enhance, or otherwise prepare or create any derivative works or improvements of the Licensed Products; and (g) copy, reproduce, distribute, republish, download, display, post or transmit the Licensed Software by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or other means. You have no implied license rights to the Licensed Products. You agree to use your best efforts to ensure that You comply with the CareSight Terms and Conditions to the benefit of CareSight.
4. All right, title, and interest, including, but not limited to, all intellectual property rights, in and to the Licensed Products (including, but not limited to, any and all copies thereof) shall be owned and retained by CareSight. Any rights not expressly granted by CareSight in these CareSight Terms and Conditions are reserved. You acknowledge and agree that You acquire no ownership interest in the Licensed Products.
5. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE CARESIGHT TERMS & CONDITIONS, CARESIGHT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THIS AGREEMENT AND THE PRODUCTS COVERED HEREIN, OR ANY SUBJECT MATTER HEREOF. WITHOUT LIMITING THE FOREGOING, CARESIGHT MAKES NO WARRANTY OF ANY KIND THAT ANY CARESIGHT PRODUCT OR OTHER CARESIGHT PROPERTIES, SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. NO EMPLOYEE OR AGENT OF CARESIGHT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO, OR AMENDS, THE WARRANTIES OR LIMITATIONS CONTAINED IN THESE CARESIGHT TERMS AND CONDITIONS.
6. NEITHER CARESIGHT NOR ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR SPECIAL DAMAGES OR COSTS (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST REVENUES, LOST DATA, COSTS OF RECREATING LOST DATA, OR LOSS OF USE, OR ANY SIMILAR DAMAGES) RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING, BUT NOT LIMITED TO, STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF CARESIGHT KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF CARESIGHT FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY CLAIMS, OR ANY BREACH OF WARRANTY OR OTHERWISE) SHALL BE LIMITED TO THE LESSER OF: (i) THE FEES PAID BY YOU FOR THE LICENSED PRODUCTS IN THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING; OR (ii) TEN THOUSAND DOLLARS ($10,000). THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE CARESIGHT TERMS AND CONDITIONS AND TO CARESIGHT’S AGREEMENT TO PROVIDE THE LICENSED PRODUCTS. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THESE TERMS.
7. You agree that, as between CareSight and You, all right, title, and interest in and to the Licensed Products, all information therein, and the processes, formulas, algorithms, system architecture, database schemas, and methodology used in the production thereof, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain the sole and exclusive property of CareSight and are protected by copyright and other intellectual property laws. Except for the limited license granted to You herein, nothing contained in these CareSight Terms and Conditions shall confer any right, title, or interest in the Licensed Products or any information therein and no other license is granted to You hereunder, whether by estoppel, implication, or otherwise. Ownership in the Licensed Products remains with CareSight and is not altered, diminished, or lost by virtue of incorporation into Your computer system or any other computer system, or use by you.
8. You agree to disclose, or provide access to, the Licensed Products only to your authorized Users. As between You and CareSight, You shall be liable for any breach of these CareSight Terms and Conditions by You or your representatives or end users. You will indemnify and hold CareSight harmless from and against any and all claims, losses, liabilities, damages, fines, penalties, costs, and expenses (including attorney’s fees) arising from or relating to any breach by You of your obligations under these CareSight Terms & Conditions.
9. CareSight may terminate these CareSight Terms and Conditions immediately upon notice to You in the event that You materially breach any of the terms hereof. CareSight may immediately terminate these CareSight Terms and Conditions and the license granted to You hereunder if: (a) the Licensed Software has been altered by or on behalf of You; (b) the Licensed Software has not been installed, operated, repaired, or maintained on equipment that was not authorized by CareSight; or (c) the license term has ended. Upon termination, the license granted hereunder shall terminate and You shall immediately stop all use of the Licensed Software and destroy any copies of the Licensed Software in Your possession, but sections 3 through 10 will remain in effect.
10. a. Entire Agreement. These CareSight Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior communications and agreements, either oral or written.
b. Assignment. You shall not assign CareSight Terms and Conditions or any of Your rights, or delegate any of its obligations hereunder, without CareSight’s prior written consent, and any such action in violation of the foregoing shall be void.
c. Severability and Waiver. You agree that the terms of CareSight Terms and Conditions shall govern the relationship of the parties with regard to the subject matter in this Agreement and You waive any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of these CareSight Terms and Conditions. If any provision hereof shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions. The waiver of any breach or default shall not constitute a waiver of any other right or remedy hereunder, or any subsequent breach or default.
d. Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Connecticut without reference to conflicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with, this Agreement, shall be in the state or federal courts, as applicable, located in the State of Connecticut.
e. Equitable Relief. You acknowledge that Your breach of the Agreement may cause CareSight irreparable damages which cannot be remedied in monetary awards in an action at law and, in the event of any such breach, that CareSight shall be entitled to obtain injunctive relief.
f. CareSight Terms and Conditions Control. In the event of any conflict between these CareSight Terms and Conditions and any other term of any agreement, these CareSight Terms and Conditions shall control.
I HAVE READ THE TERMS AND CONDITIONS OF THESE CARESIGHT TERMS AND CONDITIONS, I UNDERSTAND THE CONTENT, AND I AGREE THAT I WILL ABIDE BY THE TERMS SET FORTH HEREIN. I UNDERSTAND THAT IF I DO NOT AGREE WITH THE FOREGOING, THEN I WILL NOT BE PERMITTED TO USE THE LICENSED PRODUCTS.