COMPUTER SOFTWARE END-USER LICENSE AGREEMENT
This Computer Software End-User Terms of Service and License Agreement ("Agreement") governs the terms and conditions of your use of the doc2MD software and services solely with our anatomic pathology services (collectively, the "Services"). You are a physician and defined as “Licensee,” “You,” or “Your” and we are defined as the “Licensor.” You must register and accept the terms of this Agreement in order to use the Services. BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, OR REGISTERING FOR AND USING THE SERVICES, LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS, WHICH ARE INCORPORATED HEREIN BY REFERENCE. Licensor may modify any of the terms and conditions contained in this Agreement, at any time in its sole discretion. Any modifications are effective upon posting of the revisions on Licensor’s website (the "Site"). Licensee’s continued use of the Services following Licensor's posting of any modifications constitutes Licensee’s acceptance of the modifications. If You do not agree to the terms of any modification, do not continue to use the services and immediately notify Licensor of Licensee’s termination of this Agreement in the manner described below.
Section 1
LICENSE
1.1 License. In consideration of the payment of the License Fees (as defined in Section 2.4 hereof), Licensor grants to Licensee a limited, non-exclusive, non-transferable license to use the doc2MD computer software system in machine-readable form and related user information solely with [Aurora Laboratory DermDX Program] and our anatomic pathology services (“AP Services”), which together constitute the “Licensed Program,” subject to the terms and conditions set forth herein this Agreement. The Licensed Program is limited to a single physician and each physician must register as a separate Licensee and agree to the terms of the Agreement. Licensee’s rights to the Licensed Program shall automatically terminate if Licensee no longer uses our [Aurora Laboratory DermDX Program] or our AP Services, or more than one physician uses the Licensed Program as one Licensee.
Section 2
SCOPE OF RIGHTS
2. 1 Scope of License. Licensee may:
a. Download and install the Licensed Program on Licensee’s computer hardware equipment as specified by Licensor; and
b. Use the Licensed Program on the computer hardware equipment specified by Licensor solely in connection with our [Aurora Laboratory DermDX Program] and our AP Services and serving the internal needs of Licensee’s business.
2.2 Restrictions. Licensee may not use, copy, or modify the Licensed Program, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor. Licensee’s rights may not be transferred except to (1) a successor in interest of Licensee’s entire business who assumes the obligations of this Agreement, or (2) any other party, reasonably acceptably to Licensor, who enters into a substitute written version of this Agreement, and pays an administrative fee intended to cover attendant costs. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, unless expressly authorized in writing by Licensor. If Licensee uses, copies, or modifies the Licensed Program or if Licensee transfers possession of any copy, adaptation, transcription, or merged portion of the Licensed Program to any other party in any way not expressly authorized in writing by Licensor, Licensee’s license shall automatically terminate.
2.3 No Sublicense. Licensee shall have no right to sublicense the Licensed Program.
2.4 License Fee.
a. Licensee will pay a monthly charge of $49.95 for 1-3 physicians, and $20 per physician for each additional physician. In addition, The Licensee can choose to purchase a$600 per year service for a practice management system(PMS)/ADT/Demographics bridge. A onetime annual payment can be made at a discounted rate to be defined by the Licensor. Licensor will not increase the foregoing rates for two years, and Licensor has the discretion to change these rates after two years. Licensee will pay the monthly charge in advance on the anniversary day of each month. Licensee must pay for the Services by credit card or check. Licensee authorizes Licensor to charge Licensee’s credit or debit card to pay for any charges that may apply to Licensee’s account. Licensee must notify Licensor of any changes to Licensee’s card account (including, applicable account number or cancellation or expiration of the account), Licensee’s billing address, or any information that may prohibit Licensor from charging Licensee’s account. Licensee’s failure to fully pay any fees and taxes within 15 days from the applicable due date is a material breach of this Agreement, justifying Licensor to suspend its performance and terminate this Agreement. If Licensor terminates for Licensee’s material breach, Licensee will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts Licensee owe to Licensor under this Agreement. Licensee is responsible for any costs Licensor incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees. To reinstate the rights to use the Licensed Program, Licensee must pay for three months of Service in advance on the first day such Services are reinstated and any fees associated with reinstating Services.
b. All payments to Licensor are nonrefundable. This includes any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If Licensee dispute a charge to Licensee’s credit card issuer that, in Licensor's sole discretion is a valid charge under the provisions of this Agreement and/or AUP, Licensee agree to pay Licensor an Investigation Fee of $100.00.
2.5 Taxes. Licensee is solely responsible for payment of any taxes (including sales or use taxes and intangible taxes) resulting from its acceptance of this license and its possession and use of the Licensed Program. Licensor reserves the right to have Licensee pay any such taxes as they fall due to Licensor for remittance to the appropriate authority. Licensee agrees to hold harmless Licensor from all claims and liability arising from Licensee’s failure to report or pay such taxes.
2.6 Secure Handling. The Licensed Product utilizes industry standard encryption protocols (Secure Sockets Layer or SSL) to ensure the confidentiality of data transmitted over the Internet to Licensor’s servers. Licensee is responsible for selecting persons within its organization qualified to operate the Licensed program on Licensee’s computer equipment and familiar with the information, calculations, and reports (the “Data”) that serve as input and output of the Licensed Program. Licensor reserves the right to refuse assistance or to charge additional fees if Licensee seeks assistance with respect to basic background information or any other matters not directly related to the operation of the Licensed Program. Except for copies of the Licensed Program installed and operated on Licensee’s computers as permitted hereunder, Licensee shall require that the Licensed Program be kept on Licensee’s computer hardware at the Licensee’s location(s) in a manner so as to reasonably preclude unauthorized persons from having access thereto. Licensee shall be solely responsible for security related to its computer hardware on which the Licensed Program operates including, but not limited to, password protection and physical access to hardware. Licensee shall have sole responsibility for the protection of privacy information pursuant to the terms of Health Insurance Portability and Accountability Act.
2.7 Equipment. Licensor shall have no responsibility under this Agreement for obtaining or providing any equipment to Licensee to use the Licensed Program. Licensee also is responsible for ensuring a proper environment and proper utilities for the computer system on which the Licensed Program operates including uninterrupted power supply. Licensee shall be solely responsible for the provision of Internet services for operation of the Licensed Program and Licensor shall have no responsibility for outages in network or internet services.
2.8 Security. Licensee is solely responsible for any security breaches affecting servers or accounts under Licensee’s control. Licensee is responsible for providing adequate client computer security integrity to include Antivirus and Firewall protection.
2.9 Data Backups. The Licensed Program stores all patient encounter documents on the Licensee's file server. Licensee is solely responsible for any and all backups of Licensee’s data. Licensor shall use commercial reasonable efforts to ensure that Data is protected and that the confidentiality of Data is maintained; however, Licensor shall have no liability to Licensee for the loss of any Data. Licensee shall be solely responsible for the maintenance of its data including regular backup of all Data to prevent loss.
2.10 Data Conversion. Licensee is responsible for converting its own data files for use with the Licensed Program.
2.11 Maintenance Support. Licensor shall provide support for the Licensed Program to assist in the installation and resolution of programmatic issues of the Licensed Program.
2.12 Maintenance to Licensor System. Licensor may perform system upgrades from time to time and access to the Licensed Program shall be unavailable to Licensee during such maintenance periods. Licensor shall have sole discretion as to the timing of the performance of system upgrades.
2.13 Authorized Provider. Licensee agrees that it is an authorized provider of medical services in the state(s) in which Licensee operates and Licensee has authority to perform and prepare documentation for the lawful management of medical patient information.
Section 3
PROPRIETARY PROTECTION OF LICENSED PROGRAM
3.1 Ownership of Proprietary Materials. Licensor shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Program and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted by Licensor. This Agreement does not provide Licensee with title or ownership of the Licensed Program, but only a right of limited use. Licensee must keep the Licensed Program free and clear of all claims, liens, and encumbrances. Licensor shall retain all right, title and interest in and to any enhancements or modifications developed by Licensor and furnished to Licensee, if any.
3.2 Acknowledgment of Proprietary Materials. The Licensed Program is a commercially valuable, proprietary product of Licensor, the design and development of which reflect the effort of skilled development experts and the investment of considerable time and money. The Licensed Program is treated by Licensor as confidential and contains substantial trade secrets of Licensor, which Licensor has entrusted to Licensee in confidence to use only as expressly authorized herein. Licensor claims and reserves all rights and benefits afforded under federal copyright law in all software programs and user materials that constitute the Licensor Program, and in all system documentation related thereto, as unpublished works.
3.3 Limitations on Use. Licensee may not, at any time, disclose or disseminate the Licensed Program to any person who does not need to obtain access thereto consistent with Licensee’s rights under this Agreement. Under no circumstances may Licensee decompile or reverse engineer the code of the Licensed Program, as the terms are generally used in the industry. Under no circumstances may Licensee disclose or disseminate the Licensed Program to any competitor of Licensor. Licensee shall ensure that all of its personnel and all other persons afforded access to the Licensed Program shall protect it against improper use, dissemination, or disclosure.
3.5 Exclusive Remedy. Licensee acknowledges that, in the event of its breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor’s right to obtain injunctive relief shall not limit its right to seek further remedies.
3.6 Duration of Obligations. Licensee’s obligations hereunder shall remain in effect for as long as Licensee continues to possess or use the Licensed Program or any trade secrets derived therefrom.
3.7 Ownership of Data. Data entered into the Licensed Program by Licensee, other than information deemed to constitute personal health information (“PHI”) (as defined by the Health Insurance Portability and Accountability Act (HIPAA)), shall become the property of Licensor and Licensor shall have the right to use the information in any manner it chooses including, but not limited to, providing such information to third parties. Licensor shall comply with all requirements of HIPAA related to the protection of PHI.
Section 4
LIMITED WARRANTY AND DISCLAIMER
4.1 Limited Warranty. Licensor warrants, for the benefit of Licensee alone, that the Licensed Program as delivered to Licensee does not infringe any third-party rights in patent, copyright or trade secret in the United States.
4.2 Disclaimer. Licensor is not responsible for obsolescence of the Licensed Program that may result from changes in Licensee’s requirements. The foregoing warranty shall apply only to the most current version of the Licensed Program issued by Licensor from time to time. Licensor is not responsible for the accuracy of Data entered into the Licensed Program. Licensee shall have sole responsibility for the accuracy of all Data entered into the Licensed Program. Licensor exercises no control over, and accepts no responsibility for, the content of the information passing through Licensor host computers, network hubs and points of presence, or the Internet. USE OF THE LICENSED PROGRAM OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT LICENSEE’S OWN RISK. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. LICENSOR DOES NOT MAKE AND DISCLAIMS, AND LICENSEE WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. LICENSOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
4.3 Exclusive Remedy. As the exclusive remedy of Licensee for any material nonconformity or defect in the Licensed Program for which Licensor is responsible, Licensor shall use commercially reasonable efforts to correct, cure, or otherwise remedy any nonconformity or defect in the Licensed Program. However, Licensor shall not be obligated to correct, cure or otherwise remedy any nonconformity or defect, if (i) Licensee has made any changes whatsoever to the Licensed Program, (ii) the Licensed Program has been misused or damaged in any respect, or (iii) Licensee has not reported to Licensor the existence and nature of such nonconformity or defect promptly upon discovery thereof. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE LICENSED PROGRAM OR TO ANY OTHER MATERIALS FURNISHED OR PROVIDED TO LICENSEE HEREUNDER. LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID MATERIALS OR THE USE THEREOF.
4.4 Cumulative Liability. The cumulative liability of Licensor to Licensee for all claims related to the Licensed Program and this Agreement, including any cause of action arising in contract, tort, or strict liability, shall not exceed the total amount of all License Fees paid to Licensor hereunder. This limitation of liability is intended to apply without regard to the applicability of other provisions of this Agreement.
Section 5
INDEMNIFICATION
5.1 Licensee Indemnification. Licensee shall and does hereby agree to indemnify, hold harmless, and save Licensor from liability against any claim, demand, loss, or action (1) resulting from Licensee’s use or modification of the Licensed Program, (2) alleging that any modifications made by Licensee infringe any third-party rights in the United States respecting copyright, trade secret, or patent, (3) resulting from any claim by a third party arising from the use of Licensee of the Licensed Program, (4) alleging any misuse by Licensee of Data used in conjunction with the Licensed Program. The foregoing indemnification is predicated upon Licensor (1) fully cooperating with Licensee in the defense or settlement of such actions and (2) giving Licensee prompt written notice of any claim, demand, or action for which indemnification is sought.
5.2 Licensor Indemnification. Licensor shall and does hereby agree to indemnify, hold harmless, and save Licensee from liability against any claim, demand, loss, or action alleging that the Licensed Program or modifications to such made by Licensor infringe any third-party rights in the United States respecting copyright, trade secret, or patent. The foregoing indemnification is predicated upon Licensee (1) fully cooperating with Licensor in the defense or settlement of such actions and (2) giving Licensor prompt written notice of any claim, demand, or action for which indemnification is sought. In no event shall any such indemnification include claims based upon professional malpractice liability.
Section 6
TERM
6.1 Term. This Agreement will be for a "Term" of one (1) month from the date Licensee accepts the terms of this Agreement. This Agreement will be automatically renewed (the " Renewal Term ") at the end of the Initial Term or any Renewal Term for a period of thirty (30) days unless either party provides the other party with written notice of termination at least thirty (30) days before the end of the Initial Term or Renewal Term, whichever is then applicable.
6.2 Backup and Maintenance. In the event of termination pursuant to the provisions of Sections 6.1, Licensee shall be responsible for decryption and backup and maintenance of its Data. Access to the Licensed Program shall be terminated on the thirty-first (31st) day following the provision Cancellation Request. Licensor shall have no responsibility to maintain copies of Data of Licensee. Licensor shall have no responsibility to maintain any information for Licensee and Licensee will have no access to the Licensed Program upon expiration of such thirty-day period. Licensee bears sole responsibility for backup of all its Data and shall have no recourse against Licensor in the event Data is lost due to termination of Licensee’s account. All patient encounter data residing on the Licensee’s computers is encrypted by the Licensed Program to prevent access under HIPAA. Upon termination, the Licensor shall provide a utility to decrypt all patient encounter data so that it is available without the use of the Licensed Program.
6.3 Termination. Upon termination of this Agreement, all rights granted to Licensee will terminate and revert to Licensor. Promptly upon termination of this Agreement for any reason or upon discontinuance or abandonment of Licensee’s possession or use of the Licensed Program, Licensee shall return, or certify the destruction of, all copies of the Licensed Program in its possession, and all other material pertaining to the Licensed Program (including all copies of documentation relating to the Licensed Program).
Section 7
THIRD PARTY SOFTWARE
7.1 Necessity for Third-Party Software. Licensee acknowledges that the Licensed Program requires certain third-party software to operate. Licensee agrees that prior to use of the Licensed Program in any manner, Licensee will obtain necessary licenses from the vendors of such third-party software.
Section 8
MISCELLANEOUS
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
8.2 Modification. No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.
8.3 Notice. Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed.
8.4 Severability. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall remain in full force and effect.
8.5 Force Majeure. Excepting provisions of this Agreement relating to payment of royalties and protection of Licensor’s proprietary information, neither party shall be in default of the terms hereof if such action is due to a natural calamity, act of government, act of war or terrorism, pandemic or similar causes beyond the control of such party.
8.6 No Assignment. Licensee shall not sell, transfer, assign or subcontract any right or obligation hereunder without the prior written consent of Licensor. Any act in derogation of the foregoing shall be null and void; provided, however, that any such assignment shall not relieve Licensee of its obligations under this Agreement.
8.7 Entire Agreement. The provisions herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof. Licensor may modify any of the terms and conditions contained in this Agreement, at any time in its sole discretion. Any modifications are effective upon posting of the revisions on Licensor’s website (the "Site"). Licensee’s continued use of the Services following Licensor's posting of any modifications constitutes Licensee’s acceptance of the modifications. If You do not agree to the terms of any modification, do not continue to use the services and immediately notify Licensor of Licensee’s termination of this Agreement in the manner described below.