END USER LICENSE AGREEMENT
BY INSTALLING OR USING ALL OR ANY PORTION OF THE MEDQORTM
SOFTWARE OR CLICKING THE ACCEPTANCE BOX, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS EULA AS PUBLISHED ON MEDQOR WEBSITE AT WWW.MEDQOR.COM
. MEDQOR RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS EULA FROM TIME TO TIME AND WILL POST ANY SUCH CHANGES ON THE MEDQOR SITE. MEDQOR WILL PROVIDE NOTICE TO CUSTOMER OF ANY SUCH MODIFICATION, WHICH NOTICE MAY APPEAR ON THE MEDQOR SITE OR BE DELIVERED VIA THE SERVICES. CUSTOMER AGREES THAT CUSTOMER’S USE OF ANY SERVICES AFTER NOTICE OF SUCH MODIFICATION TO THIS EULA WILL CONTITUTE CONSENT TO ANY SUCH MODIFICATION.
This EULA covers all Software, Data Storage, Professional Services, or Support and Maintenance related to Customer’s Use of the MEDQORTM
Software Platform and Customer agrees that Customer’s use of MEDQORTM
or any products or services (the “Service” or “Services”) offered by MEDQOR, (“MEDQOR”) will be subject to these standard terms and conditions (this “Agreement”).
1. Agreement and Services.
This Agreement governs Customer’s use of all Services ordered from MEDQOR by Customer from time to time. Services may be ordered via a Statement of Work, Purchase Order, or such other ordering form which references this Agreement (“Ordering Document”). Each Ordering Document which references this Agreement shall be deemed a part of this Agreement. Subject to Customer’s payment of any applicable Fees (as defined below), MEDQOR will provide to Customer the Services identified in each Ordering Document. As further specified in the applicable Ordering Document, the Services may consist of professional services, and/or access to online products and services (including any hardware or equipment provided by MEDQOR) that MEDQOR may make available to its customers from time to time via this website or any other digital platform (collectively, the “MEDQOR Site”).
2. Access to MEDQOR Services.
2.1. Grant of Rights.
Subject to Customer’s compliance with the terms of this Agreement, including, without limitation, the restrictions set forth in Section 2.2 below, MEDQOR grants to Customer and its Authorized Users a non-exclusive, non- transferable, limited license, during the Term of this Agreement, to access and use the Services. Customer shall be responsible for compliance with, and any breach of, this Agreement by Customer’s Authorized Users. For purposes of this Agreement, “Authorized Users” means (a) Customer’s employees, officers, directors and/or contractors who access any Services on behalf of Customer, and (b) if Customer obtains website development and/or hosting services from MEDQOR, the end users of Customer’s website(s).
2.2. Your Responsibilities.
You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Ordering Documents, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with this Agreement, Documentation, Ordering Documents and applicable laws and government regulations. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or authorized users, unless expressly stated otherwise in an Ordering Document or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-MEDQOR Application to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (e) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (f) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (g) copy a Service or any part, feature, function or user interface thereof, (h) copy Content except as permitted herein or in an Order Form or the Documentation, (i) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (j) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-MEDQOR product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
3. Data Rights.
Subject to the limited rights expressly granted hereunder, MEDQOR reserves all of our right, title and interest in and to the Services and Content, including all of our related intellectual property rights and trend data. No rights are granted to You hereunder other than as expressly set forth herein. Customer has the right to access and use applicable Content subject to the terms of the applicable Ordering Document, this Agreement and the Documentation. Any data that is owned by Customer and provided to MEDQOR will solely remain in Customer’s ownership. Any MEDQOR augmented data, trend data, industry data, third party data, or any other aggregated data is the sole property of MEDQOR and Customer will have no right to access any such data after termination of the Services.
4. Term; Termination.
The term of this Agreement will commence as of the date on which Customer assents to this Agreement by clicking the “I Agree” button on the MEDQOR Site and will remain in effect for 1 year and automatically renew unless and until terminated as set forth below (“Term”).
4.2. Termination for Cause.
MEDQOR may terminate this Agreement and/or cancel any Service(s) ordered under an Invoice at any time in the event of a material breach by Customer that remains uncured for a period of five (5) days following Customer’s receipt of written notice of such breach from MEDQOR. Customer may terminate this Agreement at any time in the event of a material breach of the terms of this Agreement by MEDQOR that remains uncured for a period of thirty (30) days following MEDQOR’s receipt of written notice of such breach from Customer.
4.3. Termination for Convenience.
Without limiting Section 4.2, above, either party may terminate this Agreement and/or cancel any Service(s) at any time, with or without cause, upon thirty (30) days’ prior written notice to the other party. For avoidance of doubt, the cancellation of any Service will not terminate this Agreement nor cancel any other Service unless expressly stated in the applicable notice of termination or cancellation.
4.4. Effects of Termination.
Upon expiration or termination of this Agreement or any Ordering Document, (i) Customer’s right to use the Services will immediately terminate, and (ii) all unpaid Fees outstanding from Customer will become immediately due and payable. Sections 2.2, 3, 4.4, 6, 7, 8, 9, 10, 11, 12 and 14 will survive any termination of this Agreement.
5. Fees; Payment.
Customer will pay MEDQOR the fees specified in the Ordering Document (“Fees”). Payments are due monthly in advance. If Fees are to be paid for by credit card, MEDQOR may charge the credit card as of the first business day of the first month after Customer requests the corresponding Services, and on the first business day of each subsequent month thereafter, unless Customer cancels the applicable Service in accordance with Section 4.3, above. If Customer is to be invoiced for payment, Customer will be invoiced for all Services monthly, in advance. All amounts paid by Customer pursuant to this Agreement are non-refundable. Late payments may bear interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, if lower. If Customer fails to make payment when due, Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by MEDQOR in collecting such amounts. Customer will be responsible for and will pay all federal, state and local taxes that are imposed on the Fees paid or Services provided hereunder. If Customer cancels any Service that was priced by MEDQOR as part of a bundle of Services, but does not cancel all of such Services, MEDQOR may adjust the Fees for the remaining Services. By accessing and/or using any Service after such adjustment, Customer agrees to pay the adjusted Fees for such Service.
6. Representations and Warranties.
6.1. Customer Warranties.
Customer represents and warrants that (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it has all rights necessary to provide the Customer Data and any other materials (including any trademarks, service marks, logos, photographs, images, graphics, audio, video, or other creative materials (collectively, “Customer Materials”)) provided or made available by Customer, and that such Customer Data and Customer Materials do not and will not infringe any rights of any third party, including, but not limited to, any contractual rights, copyright, trademark or trade secret rights or any right of privacy or publicity, (iv) Customer’s use of the Services will comply with all applicable laws, rules and regulations, including, without limitation, any privacy laws; and (v) to the extent Customer purchases website hosting services from MEDQOR, Customer will provide MEDQOR with a written privacy statement to post on such website that complies with applicable law and that contains any terms that MEDQOR may, from time to time, provide to Customer for inclusion in such privacy statement.
MEDQOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND MEDQOR MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE OR RELIABLE RESULTS; OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE.
Customer will indemnify, defend and hold harmless MEDQOR, its Affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable attorneys’ fees, arising out of a third-party claim resulting from (i) any breach or alleged breach of Customer’s obligations, representations or warranties under this Agreement, (ii) Customer’s use of the Services, or (iii) any claim that any Customer trademarks, service marks, trade names, logos or other content or materials furnished by Customer for use in connection with the Services, including, without limitation, any Customer Data and any Customer Materials (including, if Customer obtains any website development and hosting services from MEDQOR, any content or advertising posted on such website by Customer’s end users), but excluding any content provided by MEDQOR, (a) misappropriates any third party’s confidential information, (b) violates any applicable law, rule or regulation, (c) libels any person or entity, or (d) otherwise violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any right of privacy or publicity.
8. Limitation of Liability.
IN NO EVENT WILL MEDQOR, ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MEDQOR, ITS AFFILIATES AND ITS AND THEIR LICENSORS’ TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING THROUGH CUSTOMER FOR ANY CLAIM ARISING OUT OF MEDQOR’S PERFORMANCE UNDER THIS AGREEMENT OR ITS PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO MEDQOR WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Proprietary Rights.
9.1. Rights in MEDQOR Services.
The Services constitute the intellectual property of and are owned by MEDQOR, its Affiliates and/or its licensors, and MEDQOR, its Affiliates and/or its or their licensors retain all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Services. The structure, organization and code of the Services are valuable trade secrets and Confidential Information of MEDQOR, its Affiliates and/or its or their licensors. Any user name or password provided to or created by Customer for use in connection with the Services are Confidential Information of MEDQOR and may not be shared with any third party without the prior written authorization of MEDQOR. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights in any Services and all rights not expressly granted are expressly reserved by MEDQOR, its Affiliates and/or its or their licensors. Customer may not remove or authorize or permit its Authorized Users to remove or obscure any proprietary rights legends from the Services. Without limiting the generality of the foregoing, if Customer obtains website development and hosting services from MEDQOR, Customer acknowledges that MEDQOR owns all right, title, and interest in the code underlying any website it provides and in the design of such site, including any templates used in connection with such design (“Templates”). Customer is receiving only hosting services from MEDQOR with regard to the operation and display of such website solely during the Term and will not obtain any intellectual property rights from MEDQOR in connection with the operation and display of such website. Customer acknowledges that use of the Template is not exclusive to Customer, and that MEDQOR may operate websites for other customers using the same Templates. For purposes of this Agreement, “Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, MEDQOR, where “control” means the power to direct or cause the direction of the management and policies of such other entity, whether through the ownership of voting securities, by contract or otherwise.
MEDQOR, its Affiliates and/or its or their licensors own and retain all rights in any trademarks, service marks, trade names and logos, and all related products and service names, marks, and
slogans used by MEDQOR in connection with the Services, including, without limitation, MEDQOR, MEDQOR [ETC, ETC.] are MEDQOR and excluding only any Customer trademarks, service marks, trade names and logos provided by Customer for use in connection with any website hosting and development services provide by MEDQOR. Any other trademarks, service marks, trade names or logos contained within any Services are owned by their respective owners.
10.1. Definition of Confidential Information.
For purposes of this Agreement, “Confidential Information” means the terms and conditions of this Agreement, and all non-public information about MEDQOR’ business or activities that is marked or designated by MEDQOR as “confidential” or “proprietary” at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information will include, without limitation all MEDQOR business (including pricing), financial, technical and other similar information.
10.2. Use of Confidential Information.
Customer agrees that during the Agreement Term and for three (3) years thereafter: (i) it will not disclose to any third party any Confidential Information disclosed to it by MEDQOR except as expressly permitted in this Agreement; (ii) it will not use any Confidential Information disclosed to it by MEDQOR except as necessary to perform its obligations under this Agreement; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of MEDQOR in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, Customer may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to request confidential treatment or a protective order before such disclosure; and (b) on a “need-to-know” basis to its legal counsel, accountants, employees and agents who are obligated to maintain the confidentiality of such information. Customer agrees that it shall remain liable for the compliance by such persons with the terms of this Agreement. Upon termination or expiration of this Agreement, or at the request of MEDQOR, Customer shall (at its option) return the Confidential Information to MEDQOR, or destroy it and, upon MEDQOR’s request, certify that it has taken such action.
Except as otherwise provided herein, any notice provided pursuant to this Agreement will be in writing, and will be sent by U.S. mail, postage prepaid, certified mail return receipt requested or by overnight courier addressed (if to Customer) to the address set forth on the Subscription Form or (if to MEDQOR) to MEDQOR, Inc., Attn: ___________________________ or to such other address as maybe provided by notice by the applicable party in accordance with this Section. Copies of notices to MEDQOR also will be sent to _______________________________.
12. Governing Law/Venue.
This Agreement and performance hereunder will be governed by the laws of the State of Kansas, without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement will be an appropriate federal or state court located in Johnson County, Kansas.
Customer may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights is void. MEDQOR may assign or subcontract to any third party all or any part of the Services being provided by MEDQOR to Customer pursuant to this Agreement.
14. Changes to Agreement.
MEDQOR reserves the right to modify the terms of this Agreement from time to time and will post any such changes on the MEDQOR Site. MEDQOR will provide notice to Customer of any such modification, which notice may appear on the MEDQOR Site or be delivered via the Services. Customer agrees that Customer’s use of any Services after notice of such modifications to this Agreement will constitute Customer’s assent to any such modifications.
Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party. Nothing in this Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter, including, without limitation, the terms of any purchase order submitted by Customer to MEDQOR to procure Services hereunder. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. Except as otherwise set forth in Section 14, this Agreement may not be modified or altered except by written instrument duly executed by an authorized officer of each party, and any such other modification shall be null and void and of no legal effect. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.