THIS IS A LEGALLY BINDING AGREEMENT between CollaborateMD, Inc., a Florida Corporation ("COMD," "we" or "us"), and you. BY ACCESSING OR USING THE SERVICES (DEFINED BELOW), YOU ARE ENTERING INTO THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT") AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. Please read this Agreement carefully, and do not use the Services if you are unwilling or unable to be bound by this Agreement. You and we are collectively referred to as the "Parties."
As used in this Agreement, the term "Service" means any COMD software or services provided, or made available, to you by a COMD-authorized customer ("Subscriber") under the terms of a valid Customer Software Agreement ("Customer Agreement") between COMD and the Subscriber, including any or all associated web sites, media, printed materials, and any "on-line" or electronic documentation.
SERVICE ACCESS AND USE LICENSE
The Service is licensed to you, not sold. Except for the limited license granted in this Agreement, COMD retains all right, title and interest in the Service, including any updates, modifications, and enhancements, all copies thereof, and all proprietary right in the Service, including copyrights, patents, trademarks, and trade secret rights.
1. GRANT OF LICENSE
This Agreement grants you the following rights:
1.1 Hosted Service. During the term of this Agreement, COMD grants you a personal, nontransferable, nonexclusive, and non-assignable license to access and use via the Internet that portion of the Service that you select that is hosted by COMD or its subcontractors.
1.2 Local Service. During the term of this Agreement, COMD grants you a personal, nontransferable, nonexclusive, and non-assignable license to use and access that portion of the Service that is expressly provided or made available to you for the purpose of local installation and operation.
1.3 Enhancements. COMD reserves the right to upgrade, enhance, change or modify the Service at any time in its sole discretion ("Enhancements"). Any Enhancements made available to you by COMD, if any, will be subject to the terms of this Agreement, except to the extent that conflicting or more restrictive provisions are agreed upon in future agreements relating to such Enhancements.
This Agreement shall commence on the date this Agreement is executed by you and shall continue until the earlier of (i) the effective date of termination of this Agreement, or (ii) the effective date of expiration or termination of the Customer Software Agreement
2. LIMITATIONS ON LICENSE
The license granted to you in this Agreement is restricted as follows:
2.1 Limitations on Copying and Distribution. You may not copy or distribute the Service except to the extent that copying is necessary to use the Service.
2.2 Limitations on Reverse Engineering and Modification. You may not reverse engineer, decompile, disassemble, modify or create works derivative of the Service. You may not alter or modify any disabling mechanism which may be resident in the Service.
2.3 Sublicense, Rental and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Service, or directly or indirectly permit any third party to use or copy the Service. You will keep any passwords associated with the use of the Service in strict confidence, and will not share such passwords with any third party.
3. DISABLING MECHANISM
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE MAY HAVE A MECHANISM WHEREBY COMD CAN DISABLE THE SERVICE. YOU AGREE THAT COMD MAY USE ANY SUCH MECHANISM IN THE EVENT OF YOUR BREACH OF THIS AGREEMENT, OR A BREACH OF YOUR SUBSCRIBER.S CUSTOMER AGREEMENT.
4.1 Breach of Agreement. Without prejudice to any other rights, COMD may immediately and without notice terminate this Agreement and all rights granted hereunder if you fail to comply with any of the terms and conditions of this Agreement.
4.2 Infringement Claims. In the event of a claim of intellectual property infringement by any third party relating to the Service ("Infringement Claims"), COMD reserves the right to immediately terminate this Agreement and the rights granted hereunder.
4.3 Unlawful Use. COMD may terminate the Agreement immediately if COMD becomes aware of or suspects any unlawful use of the Services; provided, the parties agree COMD has no duty to monitor for such unlawful use.
4.4 Termination of Subscription Agreement. In the event of any termination or expiration of your Subscriber.s Customer Agreement, COMD may terminate this Agreement and the rights granted hereunder, with or without cause, in its sole discretion.
4.5 Termination of Employment or Contract or Relationship. Immediately at the time of termination of (a) your employment or (b) your Contract with Subscriber, by or with Subscriber and without prior notice to you, this Agreement shall automatically terminate.
4.6 Licensee.s Termination Obligations. In the event of any expiration or termination of this Agreement for any reason, you must remove all copies of the Service and all of its components from all of your systems, and destroy all such Service, components and copies, along with all related media and documentation.
You may not export the Service without the prior written approval of COMD. If the Service was purchased in the United States, you agree to comply with all applicable United States laws and regulations pertaining to export controls. If the Service was purchased outside the United States, you may not re-export the Service except as permitted by the laws of the United States and the laws of the jurisdiction in which you purchased the Service.
6. U.S. GOVERNMENT RESTRICTED RIGHTS
The Services are a commercial product, developed at private expense, and provided with restricted rights. Use, reproduction, release, modification or disclosure of the Services, or any part thereof, including technical data, by the Government is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense ("DFARS") 227.7202 for military agencies.
7. THIRD PARTY CONTENT
Any opinions, advice, statements, services, offers, or other information that is part of the content accessible via the Service that is expressed or made available by third parties are those of the respective authors or distributors and not of COMD. It is your responsibility to evaluate the information, opinions, advice or other Content available through the Web Site, whether listed or provided by third parties or by COMD. COMD ASSUMES NO RESPONSIBILITY AND MAKES NO REPRESENTATIONS, WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS OR APPROVALS WITH REGARD TO THIRD PARTY INFORMATION.
8. NO WARRANTIES
THE SERVICES ARE PROVIDED ON AN "AS AVAILABLE," "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMD AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMD DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES OR RELATED DOCUMENTATION WILL BE CORRECTED. COMD MAKES NO REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OR RELIABILITY OF THE SERVICES, THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ACCESSIBLE VIA THE SERVICES, OR THE AVAILABILITY, QUALITY OR SAFETY OF ANY PRODUCTS OR SERVICES AVAILABLE THROUGH THE SERVICES. FURTHER, COMD DOES NOT WARRANT THAT THE SERVICES, OR THE CONTENT AVAILABLE THROUGH THE SERVICES, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMD OR SUBSCRIBER SHALL CREATE A COMD WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
9. NO LIABILITY FOR CONSEQUENTIAL, ETC. DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMD OR ITS SUPPLIERS BE LIABLE FOR SPECIAL, EXEMPLARY, INCIDENTAL, RELIANCE, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF COMD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, COMD.S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE INITIAL FEE PAID BY YOU FOR THE SERVICE.
You agree to indemnify, defend and hold harmless COMD and its officers, directors, shareholders, agents and affiliates harmless from and against any and all third party claims of any kind (along with attorney's fees and litigation costs) arising out of, resulting from, or in connection with your breach of this Agreement or your use or misuse of the Services, including but not limited to, any allegation that the Customer Data used in any the Service (i) in any way violates any local, state or federal law; is libelous or defamatory; (ii) violates the right of privacy of persons or other state or federal rights; (iii) constitutes a trade secret; or (iv) infringes any copyright, trademark, patent rights, or other intellectual property rights of a third party.
11. GOVERNING LAW
The parties hereby agree and consent that (i) the law of the State of Florida shall govern this Agreement, excluding its conflicts of law decisions, (ii) the sole and exclusive venue for any legal action authorized or brought hereunder, or brought by either party against the other, whether based in contract, tort, breach of warrant or promise, or other theory under law or equity, shall be in a court of competent jurisdiction in Orange County, Florida, and (iii) personal jurisdiction of the parties shall be vested in the Federal District Court, Middle District of Florida, or the State Courts of Florida situated in Orlando, Orange County, Florida.
12. FORCE MAJEURE
COMD shall not be responsible for any delays, errors, failures to perform, interruptions or disruptions in the Services for the time and to the extent such failure or delay is due to causes beyond its reasonable control, including, but not limited to, any act of God, labor dispute, fire, storm, tornado, tidal wave, vandalism, riot, explosion, power outage, earthquake, flood, civil disturbance, sabotage, act of war, act of terrorism, governmental action or regulation, communication or utility failure, or casualty, caused by any acts of God, strikes, lockouts, riots, acts of war, changes in law or regulations, fire, flood, earthquake, or storm (collectively "Force Majeure Items").
This Agreement constitutes the entire understanding and agreement between COMD and you with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement may be modified, amended, or altered by an instrument in writing signed (Accepted) by both of the parties. Alternatively, COMD may unilaterally modify this Agreement and present the modification, which might be in the form of a new Agreement. If any such modification or new Agreement is unacceptable to you, you may terminate this Agreement under Section 1.4(b); otherwise, the modification or new Agreement shall become effective and govern the parties on the 16th day following notice to you, electronic or otherwise, of the modification or new Agreement. In the event that any nonmaterial provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by COMD to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
13.1 Customer Data. You shall have all responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all data you enter into the Software Service system and COMD shall not be responsible or liable for the deletion, correction, destruction, damage, loss of use, or failure to store any such data.
13.3 Customer Agreement. If this Agreement is Accepted by a Subscriber, the Subscriber and all of its employees are bound by the Customer Agreement between COMD and the customer. Acceptance of this Agreement by a customer or its employees shall not be deemed to override the Customer Agreement. In such case, the Customer Agreement shall always take precedence.
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