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This End User License Agreement ("EULA") is a binding legal agreement between you, as an individual or entity (“You” or “Company”), and Medcurio, Inc. By downloading, installing, accessing or using the Medcurio software, API, or other related services, portals, or tools, or any of the materials, Documentation, and content available in or through them (collectively, the "Software"), you agree to be bound by the terms of this EULA. IF YOU DO NOT AGREE TO THIS EULA, DO NOT USE THE SOFTWARE AND DELETE IT. YOU AGREE THAT INSTALLATION, ACCESS OR USE OF THE SOFTWARE SIGNIFIES THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA.
(a) “Authorized Reseller” means any entity authorized by Medcurio to sell access to the Software on Medcurio’s behalf.
(b) “Company Data” means Company’s electronic data other than Log Data.
(c) “Documentation” means the technical specification documentation generally made available by Medcurio with regard to the Software.
(d) “Log Data” means technical data regarding Company’s use of the Software, including technical logs, metadata, support issues, and metrics.
(e) “Output” means the data output that Company creates through the authorized use of the Software, but expressly excludes any Software, Documentation, and all derivative works thereof.
(f) “Subscription Term” means the duration that Company paid for to access and use the Software through an Authorized Reseller.
(g) “Third Party Solution Components” means online applications, platforms, data or systems (including as non-exclusive examples electronic medical record systems and data) and offline software products (including as non-exclusive examples messaging layers, interface engines, BPM, load balancer, and web servers) that are provided by entities or individuals other than Medcurio and that interoperate with the Software.
(h) “Warranty Period” means a period of thirty (30) days following the commencement of Company’s Subscription Term.
2. Software License. Subject to all of the terms and conditions of this EULA, during your relevant Subscription Term, Medcurio grants to You a non-transferable, non-sublicensable, non-exclusive, revocable license to use the Software in object code form for Company’s internal business operations, but only in accordance with (i) the Documentation, (ii) this EULA, and (iii) all restrictions set forth in any applicable order form between You and an Authorized Reseller of the Software, including without limitation restrictions related to servers, users, and, computer, website, or field of use. In addition, any third party providing services (“Third Party Service Providers”) to the Company may use the Software solely for Company’s internal benefit and solely within the scope of the restrictions just described. Company shall be liable for all violations of this EULA by its personnel and Third Party Service Providers.
3. Installation and Copies. Company may copy and install on Company’s servers and databases for use only by Company employees and Third Party Service Providers one (1) install of the Software in the production environment during Company’s Subscription Term, and unlimited installs in the non-production environments.
4. Software License Restrictions. Company shall not (and shall not allow any third party to): (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Software, in whole or in part, nor will Company, its employees or Third Party Service Providers use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage or permit others to do so; (b) sell, sublicense, rent, lease, distribute, market, or commercialize for any purpose, including timesharing or service bureau purposes: (i) the Software, (ii) any modified version or derivative work of the Software created by the Company or for the Company, or (iii) any Medcurio software, either modified or not, licensed under an open source license; (c) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights that violate the technical restrictions of the Software, any additional licensing terms provided by Medcurio via product documentation, notification, and/or policy change posted at http://www.Medcurio.com, and the terms of this EULA; (d) remove or obscure any product identification, proprietary, copyright or other notices contained in the Software; (e) modify or create a derivative work of any encrypted or encoded portion of the Software, or any other portion of the Software; (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (g) engage in any of the following prohibited activities in connection with the Software: (i) upload unauthorized Company Data, (ii) grant or provide access to unauthorized users, and (iii) any fraudulent activity; (h) market itself as a “re-seller” of the Software; or (i) create a competitive product offering to the Software.
5. Open Source Software. Notwithstanding Section 2 of this EULA, the Software may include individual open source software components, each of which has its own copyright and its own applicable license conditions. The open source software is licensed to Company under the terms of the applicable open source license conditions and/or copyright notices that can be found in the open_source_licenses file, the Documentation or other materials accompanying the Software.
6. Software Ownership. Title, ownership and all rights (including without limitation intellectual property rights) in and to the Software shall remain with Medcurio. Except for those rights expressly granted in this EULA, no other rights are granted, whether express or implied.
7. Limited Software Warranty. Medcurio warrants, for Company’s benefit only, that during the Warranty Period, the Software shall operate in substantial conformity with the applicable Documentation. If during the Warranty Period the Software does not substantially conform to the description contained in the applicable Documentation, Medcurio’s sole liability (and Company’s sole and exclusive remedy) for any breach of this warranty shall be for Medcurio to correct the defects in the Software; provided that this remedy is only available if Company gives Medcurio or the Authorized Reseller written notice of such breach during the Warranty Period. Company acknowledges and agrees that the Software is subscription-based and that, in order to provide improved customer experience, Medcurio may make changes to the Software and that in such event, Medcurio will update the Documentation accordingly.
8. DISCLAIMER OF WARRANTIES. THE WARRANTIES LISTED IN SECTION 7 ARE LIMITED WARRANTIES AND EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, THE SOFTWARE, DOCUMENTATION, USER GUIDES, ALL MATERIALS, AND SUPPORT AND MAINTENANCE ARE ALL PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, MEDCURIO DOES NOT WARRANT THAT THE SOFTWARE (I) WILL OPERATE UNINTERRUPTED, (II) WILL BE FREE FROM DEFECTS, OR (III) HAVE BEEN DESIGNED TO MEET YOUR SPECIFIC BUSINESS REQUIREMENTS. NEITHER MEDCURIO NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. YOU ACKNOWLEDGES AND AGREES THAT THE SOFTWARE IS NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY (INCLUDING, WITHOUT LIMITATION, LIFE SUPPORT OR EMERGENCY MEDICAL OPERATIONS) AND THAT MEDCURIO MAKES NO WARRANTY AND SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY USE OF THE SOFTWARE IN SUCH SITUATIONS.
9. Use of Third Party Solution Components. Under this EULA Medcurio provides only the Software. Medcurio does not provide any warranty on, and does not provide support or maintenance on, the Output. As a non-exclusive example, in order for You to effectively use Output, You may need to license, modify and install Third Party Solution Components. Medcurio or the Authorized Reseller may provide You with links and instructions for obtaining Third Party Solution Components or provide access to them, but it is Your sole responsibility to properly license and install any required Third Party Solution Components from the relevant third party providers. Medcurio will have no liability with respect to any Third Party Solution Components, whether or not they are “certified” by Medcurio. In addition to the foregoing, You acknowledge and agree that You have an existing agreement with the applicable Third Party Component that allows: (i): You to access and share data with the Software, and (ii) Medcurio to use such data to improve the Software on Your behalf.
10. Feedback. Company hereby grants Medcurio the right to freely use, copy, disclose, license, distribute and exploit any suggestions, comments, improvements, ideas or other feedback provided to Medcurio in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
11. Data & Output.
(a) Company Data & Log Data. Company retains all right, title and interest in and to the Company Data and Log Data. Company hereby grants Medcurio a royalty-free, worldwide, license during Company’s Subscription Term to reproduce, display, access, modify, transmit and use (i) the Company Data and Log Data to provide the Software, and any maintenance and support required; and (ii) the Log Data to improve and analyze the performance of the Software, solely on a generic, aggregate basis along with Medcurio’s use of similar data from its other customers.
(b) Compliance with Laws. Company’s collection, storage, and use of the Company Data and Log Data in connection with the Software will comply with all applicable privacy and data security laws, including but not limited to the Health Insurance Portability and Accountability Act of 1996 and its attendant regulations, as amended from time to time (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), the California Medical Information Act (CMIA), the Fair Credit Reporting Act (FCRA), and regulations promulgated under these laws.
(c) Security. Company will at all times during the Subscription Term maintain appropriate technical and organizational measures to protect any data that it collects, accesses or processes in connection with the Software against unauthorized or unlawful use, disclosure, processing or alteration.
(d) Output. Company retains all right, title and interest in and to the Output. Company hereby grants Medcurio a royalty-free, worldwide, license during the Subscription Term to reproduce, display, access, modify, transmit and use Output solely to provide the Software, any maintenance and support required, and to improve and analyze the performance of the Software.
12. Publicity. Medcurio may use Company’s name, logo and marks to identify it as a customer of Medcurio on Medcurio’s website and other marketing materials.
13. Suspension; Termination. Medcurio reserves the right, without notice and in its sole discretion at any time, to suspend or terminate Your access to and use of the Software, in whole or in part, in connection with any breach of this EULA, material failure to comply with applicable Medcurio policies, or any known or suspected incident in which access credentials or network security have been compromised or breached, directly or indirectly; and to notify third parties of the same as required by contract or otherwise.
14. Indemnity. To the fullest extent permitted by law, You agree to defend, indemnify, and hold harmless Medcurio and its affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, agents, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses and costs) arising out of, relating to, or resulting from any breach by you of this EULA, your use of the Software or any other matter relating to the Software.
15. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT MEDCURIO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MEDCURIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL MEDCURIO'S AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF DAMAGES AND/OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
16. Export Restrictions. This EULA is expressly made subject to any laws, regulations, orders or other restrictions on the export of software from the United States of America, and may be subject to export and import regulations of other countries. You acknowledge and agree not to import, export, re-export, transfer or use, directly or indirectly, the Software without compliance with such laws, regulations, orders or other restrictions.
17. General. You and Medcurio agree that the laws of the State of California, excluding its conflict of laws rules, shall exclusively govern any dispute relating to this EULA and the Software. You and Medcurio both agree that all claims and disputes can be litigated only in the federal or state courts in Contra Costa County or Alameda County, California, and You and Medcurio each agree to personal jurisdiction in those courts. This EULA constitutes the entire agreement between You and Medcurio regarding the Software. Medcurio reserves the right at any time to modify this EULA and to add new or additional terms or conditions on your use of the Software. Such modifications and additional terms and conditions will be effective immediately and incorporated into this EULA. Your continued use of the Software will be deemed acceptance thereof. You can reject any new, revised or additional terms by discontinuing use of the Software. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this EULA will remain in full force and effect. You may not assign this EULA, and any assignment of this EULA by you will be null and void. Medcurio, Medcurio logos, and other Medcurio names (such as VennU) are trademarks of Medcurio and its affiliates. You agree not to display or use these trademarks in any manner without Medcurio’s prior, written permission. The section titles and numbering of this EULA are displayed for convenience and have no legal effect.
Last Updated November 15, 2022