Last Updated: December 23, 2011
THIS END-USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN CLICKMEDIX, LLC, (“CLICK”), AND YOU (“YOU”), THE PERSON, COMPANY OR ORGANIZATION THAT HAS LICENSED CLICKMEDIX-MOBILE™ (THE “SOFTWARE”).
I. Grant of license
2. Supported wireless, mobile handsets. Exhibit A contains a list of supported wireless mobile handsets as of the date this Agreement was last updated. The list may be modified at any time at the sole discretion of Click without prior notification to You.
II. Patient information, consultations and collection of information
6. Completeness or accuracy of transmitted information. You acknowledge that Click is not responsible for and makes no representations or warranties regarding the accuracy or completeness of any patient information, diagnosis, treatment recommendation or any other information transmitted during Your use of the Software.
7. Collection of service quality information. You agree that Click may collect certain service quality information in order to improve the quality and performance of the Software and ClickMedix-Web, including, but not limited to, information reflecting the utilization of the Software or ClickMedix-Web by You, the image quality of transmitted images and any other technical issues. This service quality information will not include any patient information other than De-Identified Information (as defined below).
8. Collection and use of other information. You and Click acknowledge that the Software enables the transmission of patient health information. You agree that to advance healthcare education, delivery and research, Click may use, share, copy, market, license or sell any “de-identified” patient health information, which consists solely of information that is not “protected health information” or “electronic protected health information,” (as those terms are used the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy and Security Rule) and that is acquired through Your use of the Software (“De-Identified Information”) without any further obligation to You. De-Identified Information will consist only of patient health information that does not identify an individual and with respect to which there is no reasonable basis to believe that the information can be used to identify an individual. Click will not use or disclose any patient information that is not De-Identified Information for any purpose unless Click obtains prior authorization from such patient or is required to disclose such information by law.
9. Compliance and cooperation. You and Click agree to comply with the privacy and information security policies promulgated under HIPAA and any other applicable regulations and to cooperate in good faith to ensure mutual compliance therewith.
III. Intellectual property
10. Trade secrets. You acknowledge that the Software contains valuable trade secrets. You agree that You will not modify, adapt, translate, reverse engineer, decompile, disassemble or create any derivative works based on the Software.
11. Copyright. You acknowledge that United States copyright laws and international treaty provisions protect the Software, including any images, photographs, animations, video, audio, music, and text incorporated therein. You agree that You will not duplicate by any means (including electronic transmission) any of the Software for a commercial purpose or distribute any copies of any of the Software to any party, including any printed materials accompanying the Software and any user documentation provided on-line or in electronic form.
12. Reservation of rights. Click reserves all rights in the Software not expressly granted to You in this Agreement. Click will retain title to and ownership of the Software, including all subsequent copies in any media.
IV. Obligations under United States export law
13. You acknowledge and agree that the Software may be subject to regulations, restrictions and controls imposed by the United States Export Administration Act (the “EAA”). You agree and warrant that the Software will not be acquired in, shipped to, transferred to or exported to, directly or indirectly, any country in violation of the EAA nor will the Software be used for any purpose prohibited by the EAA.
14. You hereby agree and warrant that you will not knowingly, directly or indirectly, without prior written consent of the Office of Export Licensing of the U.S. Department of Commerce, download, export, transmit or transfer the Software, including the initial download or installation of the Software or any updates thereto, to any country in violation of the Export Administration Regulations issued by the U.S. Department of Commerce or any other applicable regulations or statutes.
V. No warranty, indemnification and other limitations
15. No warranty. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT. CLICK MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, CLICK MAKES NO WARRANTY THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT OR INFORMATION OBTAINED BY YOU THROUGH THE SOFTWARE WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
16. Limitation of liability. IN NO EVENT WILL CLICK OR ANY OWNER, SUBSIDIARY, OFFICER, DIRECTOR, EMPLOYEE, AGENT OR SUBCONTRACTOR OF CLICK (EACH, A “CLICK AFFILIATE”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS, DAMAGE, OR LIABILITY, INCLUDING ANY CONSEQUENTIAL, ACCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, OR BUSINESS INTERRUPTION SUFFERED OR INCURRED BY ANY PERSON AS A RESULT OF, RELATED TO, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SOFTWARE, EVEN IF CLICK OR A CLICK AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER CLICK NOR ANY CLICK AFFILIATE WILL BE RESPONSIBLE FOR LOSS OF USE OF THE SOFTWARE, LOSS OF DATA, COSTS OF RECREATING LOST DATA, OR THE COST OF SUBSTITUTE EQUIPMENT OR PROGRAMS SUSTAINED BY YOU OR FOR ANY CLAIMS BY ANY PARTY OTHER THAN YOU. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.
17. Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD CLICK AND THE CLICK AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, INCURRED BY CLICK, ANY CLICK AFFILIATE OR ANY THIRD PARTY, IN CONNECTION WITH OR ARISING OUT OF YOUR (A) NEGLIGENCE, (B) VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, (C) MISUSE OF THE SOFTWARE, (D) VIOLATION OF THE EAA, EXPORT ADMINISTRATION REGULATIONS ISSUED BY THE U.S. DEPARTMENT OF COMMERCE OR ANY OTHER APPLICABLE LEGISLATION OR REGULATIONS GOVERNING THE EXPORT OF MATERIAL FROM THE UNITED STATES, OR (E) UNLAWFUL COMMUNICATION SPREAD BY MEANS OF THE SOFTWARE. CLICK AND EACH CLICK AFFILIATE RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL COOPERATE WITH CLICK OR SUCH CLICK AFFILIATE IN ASSERTING ANY AVAILABLE DEFENSES.
18. Compression. THE SOFTWARE MAY TRANSMIT IMAGES USING COMPRESSION TECHNOLOGY THAT MAY RESULT IN SOME DEGREE OF IMAGE DATA LOSS. THEREFORE, THE SOFTWARE SHOULD ONLY BE USED TO FACILITATE A DIAGNOSIS BY A CERTIFIED HEALTH CARE PROVIDER AND SHOULD NOT BE USED OTHERWISE AS A DIAGNOSTIC TOOL.
19. Data security. CLICK HAS IMPLEMENTED TECHNOLOGY AND SECURITY POLICIES, RULES AND OTHER MEASURES TO PROTECT PATIENT INFORMATION. CLICK ALSO PROTECTS PATIENT INFORMATION BY REQUIRING THAT ALL CLICK EMPLOYEES AND OTHERS WHO HAVE ACCESS TO OR ARE ASSOCIATED WITH THE PROCESSING OF DATA RESPECT PATIENT CONFIDENTIALITY. EXCEPT IN THE CASE OF CLICK’S INTENTIONAL MISCONDUCT, RECKLESSNESS OR GROSS NEGLIGENCE, CLICK WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES CAUSED BY ANY SECURITY BREACHES OR TECHNOLOGY FAILURE, INCLUDING, BUT NOT LIMITED TO, ANY UNAUTHORIZED ACCESS, IMPROPER USE, ALTERATION, UNLAWFUL OR ACCIDENTAL DESTRUCTION OR ACCIDENTAL LOSS.
20. Compatibility. THE SOFTWARE IS ONLY COMPATIBLE WITH THE SUPPORTED WIRELESS, MOBILE HANDSETS LISTED IN EXHIBIT A. CLICK MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PERFORMANCE OF THE SOFTWARE WHEN USED WITH ANY OTHER DEVICE.
21. Specific non-warranty. CLICK DOES NOT WARRANT THAT THE OPERATION OF SOFTWARE WILL BE TIMELY, UNINTERRUPTED, FREE OF ERRORS OR MEET LICENCEE’S SPECIFIC REQUIREMENTS. NO CLICK AFFILATE NOR ANY AGENTS, EMPLOYEES, DISTRIBUTORS, AND DEALERS OF CLICK ARE AUTHORIZED TO MAKE ANY WARRANTIES ON BEHALF OF CLICK THAT ARE NOT EXPRESSLY CONTAINED IN THIS AGREEMENT OR TO MAKE ANY MODIFICATIONS TO ANY SUCH WARRANTIES.
22. Maximum aggregate liability of Click. AT ANY TIME THE AGGREGATE LIABILITY OF CLICK AND CLICK AFFILIATES ARISING FROM OR RELATING TO YOUR USE OF THE SOFTWARE OR ANY OTHER SERVICES PROVIDED BY CLICK AND/OR ITS AGENTS WILL BE LIMITED TO THE GREATER OF ANY AMOUNTS PAID BY YOU TO CLICK FOR USE OF THE SOFTWARE OR ONE HUNDRED UNITED STATES DOLLARS (US$100), OR, IF SUCH LIMITATION ON LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW, THEN THE AGGREGATE LIABILITY OF CLICK AND CLICK AFFILIATES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
23. Severability. Any provisions of this Agreement that are determined to be invalid or unenforceable by a court of competent jurisdiction will be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable the remaining provisions of this Agreement.
24. No third party beneficiaries. Nothing in this Agreement will confer any rights upon any person or entity other than the parties hereto and the respective heirs, successors and permitted assigns of each.
25. Waivers. A waiver of either party hereto of any breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision, or as a waiver of any breach or violation of any other provision of this Agreement.
26. Notices. All notices to a party will be in writing. Notices to Click must be sent via email to the attention of Customer Service at firstname.lastname@example.org. Notices to you may be sent via email or conventional mail at an address supplied by you as part of your registration data on Click’s web site. In addition, we may broadcast notices or messages through the Software or our web site to inform you of changes to the Software or other matters of importance, and such broadcasts will constitute notice to you at the time of sending.
27. Governing law. This Agreement will be governed by the laws of the State of Maryland, United States of America, without regard to the conflicts of laws principles thereof. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. You hereby consent to the exclusive jurisdiction and venue of federal and state courts sitting in the State of Maryland for the resolution of any and all legal disputes that may arise under this Agreement or otherwise with respect to the Software. You agree to waive any and all objections or defenses against such jurisdiction and venue and covenant not to bring any suit or other legal action against Click involving the foregoing in any other jurisdiction, venue or forum.
28. Headings. Paragraph and other headings are provided for convenience of reference and do not constitute a part of this Agreement.
EXHIBIT A: Supported wireless, mobile handsets
Note: other Android or Apple devices may also work with ClickMedix-Mobile, but they have not been explicitly tested by Click.
Android Operating System Versions: OS 2.1 and above
• HTC myTouch 4G
• HTC G2
• Samsung Galaxy
• Motorola Droid
• Motorola Milestone
Apple iOS Operating System Versions: iOS 4 and 5
• iPhone 3GS
• iPhone 4
• iPhone 4S
• iPad 2*
* capturing images for remote diagnosis using this device is not recommended due to the low image resolution captured by the device