End User License Agreement
This End User Licensing Agreement (“EULA”) applies to software licensed from Medicity, Inc. (“Medicity”) as well as from Other Software Vendors by the Hawai‘i Health Information Exchange (“Hawai‘i HIE”). The term “Other Software Vendor” refers to any other vendor that provides software which is added to increase functionality of and efficiency of the Hawai‘i HIE’s system for electronic health information exchange (“HIE System”), and used by you, the End User, pursuant to the Data Sharing Agreement or Participation Agreement between Hawai‘i HIE and the Hawai‘i HIE Participant on whose behalf you utilize the HIE System. From time to time, Hawai‘i HIE will provide notice either at its website or through another method of communication to the Participant as to the identities of the Other Software Vendors.
IF YOU DOWNLOAD OR INSTALL THE SOFTWARE YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT DOWNLOAD OR INSTALL THE SOFTWARE.
1. GRANT OF LICENSE: Medicity (Hawai‘i HIE’s HIE Vendor) and any Other Software Vendors, hereby grant you a non-exclusive and non-transferable license, only the software, to install and use for your own internal business purposes, including any updates to the software provided from time to time and any interfaces for the software (collectively, the “Software”). You may not reverse-engineer, disassemble or de-compile the Software. Medicity reserves all rights in and to the Software not expressly granted to you. Without limiting the foregoing, you may not use, copy, modify, transfer, create derivative works of, publicly display or distribute the Software, or any component thereof, except as expressly set forth in this Agreement.
2. RESTRICTIONS. You acknowledge that the Software is the valuable proprietary and trade secret information of Medicity and other software vendor. You agree not to cause or permit the reverse engineering, disassembly, or de-compilation of the Software, or to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Software.
3. MEDICAL JUDGEMENT. You are responsible for all decisions, acts and omissions of any persons in connection with the delivery of medical care or other services to any patients. It is your responsibility to review and test all Software and associated workflows and other content, as implemented, make independent decisions about system settings and configuration based upon your needs, practices, standards and environment, and reach your own independent determination that they are appropriate for use. You shall ensure that all of your employees using the Software are appropriately trained in the use of the Software.
4. DISCLAIMER OF WARRANTY. THE SOFTWARE AND ANY SERVICES RELATED TO THE SOFTWARE PROVIDED BY MEDICITY AND/OR ITS RESELLERS AND OTHER SOFTWARE VENDORS ARE PROVIDED UNDER THIS LICENSE ON AN “AN IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE SOFTWARE OR SERVICES ARE FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNITERRUPTED, TIMELY OR ERROR-FREE; OR THAT THE INFORMATION Page 1 of 3 PROVIDED BY A PARTICIPANT REGARDING THE PARTICIPANT’S MEDICAL SPECIALTY ACCESSED VIA THE SOFTWARE IS ACCURATE. ANY QUESTION ABOUT A PARTICIPATING PRACTICE’S OR PROVIDER’S SPECIALTY SHOULD BE DIRECTLY ADDRESSED WITH THE PRACTICE OR PROVIDER IN QUESTION. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND SERVICES ARE WITH YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY SOFTWARE OR SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. THIS AGREEMENT DOES NOT OBLIGATE MEDICITY OR ITS RESELLERS AND OTHER SOFTWARE VENDOR TO PROVIDE ANY SERVICES RELATED TO THE SOFTWARE OR ANY UPDATES TO YOU AND ANY SUCH SERVICES OR UPDATES, IF PROVIDED, TO YOU AND WILL BE AT THE SOLE DISCRETION OF MEDICITY AND/OR ITS RESELLERS.
5. THIRD PARTY COMPONENTS. The Software contains third party and open source software components subject to additional terms and conditions provided by their licensors with are included as part of the Software, including the following:
A. Software developed by the Apache Software Foundation (http://www.apache.org/) including the Apache Web Servers and the Tomcat application server.
B. Java TM 2 Runtime Environment version 1.4 from Sun Microsystems (http://www.sun.com).
C. The HAPI Java based HL7 2.x parser ((http://hl7api.sourceforge.net)
D. Java Uuid Generator (http://www.doomdar.org/dooomdar/proj/jug).
E. The iText library that allows you to generate PDF files on the fly (http://www.lowagie.com/iText).
F. Apache Jakarta Commons Libraries (http://jakarta.apache.org/commons).
G. XML Im-/Exporter library (http://xml-im-exporter.sourceforge.net).
H. The Bouncy Castle Crypto APIs (http://www.bouncycastle.org/index/html).
I. Such other third party components as may be added or used from time to time by Other Software Vendors.
6. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL MEDICITY OR ITS RESELLERS AND OTHER SOFTWARE VENDORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITIY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY OF MEDICITY AND ITS RESELLERS AND OTHER SOFTWARE VENDORS TO YOU UNDER THIS AGREEMENT EXCEED THE AMOUNT OF $50 U.S. DOLLARS. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY’S NEGLIGENCE, FAULT, OR GROSS NEGLIGENCE OR GROSS FAULT, TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. Page 2 of 3
7. EXPORT ADMINISTRATION. The Software, including technical data, are subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated Regulations, and may be subject to export or import regulations in other countries. User shall not directly or indirectly export or re-export the Software, or the direct product thereof, without first obtaining Medicity and Other Software Vendor’s written approval. User agrees to comply strictly with all regulations and acknowledges that it has the responsibility to obtain licenses to export, re-exported, or import the Software. The Software may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of Iraq, Iran, North Korea, Libya, Sudan, Syria, or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s List of Specially Designated Nations or the U.S. Commerce Department’s Table of Denial Orders.
8. TERMINATION. This License and the rights granted hereunder will terminate automatically if you fail to comply with the terms herein or Medicity or any of its resellers or Other Software Vendor provides you with notice of termination. Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive.
9. MISCELLANEOUS. THIS AGREEMENT IS THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SOFTWARE AND SERVICES AND SUPERCEDES ANY OTHER COMMUNICATION OR ADVERTISING WITH RESPECT TO THE SOFTWARE AND SERVICES. Except as otherwise expressly set forth herein, this Agreement is governed by the laws of the State of Utah or the state in which Other Software Vendors are incorporated, excluding conflict of law’s provisions.
10. SEVERABILITY. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions of this Agreement shall not in any way be affected or impaired.
11. THIRD PARTY BENEFICIARY. The resellers of Medicity and Other Software Vendors are third party beneficiaries of this Agreement and are entitled to enforce all of its provisions.