This is a binding legal contract. CAREFULLY READ THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BETWEEN YOU AND MED AM INTERNATIONAL, LLC (“MED USA”) BEFORE ACCESSING OR USING THE LICENSED PROGRAM. BY ACCESSING OR USING THE LICENSED PROGRAM OR CLICKING BELOW TO ACKNOWLEDGE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU, AS THE USER OF THE LICENSED PROGRAM (“END USER”), AGREE TO THE TERMS OF THIS AGREEMENT. If you do not agree to ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS or use THE LICENSED PROGRAM, OR CLICK BELOW TO ACKNOWLEDGE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
In exchange for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Med USA and End User agree as follows:
1. Grant of License. Subject to the terms and conditions of this Agreement, Med USA hereby grants to End User a revocable, personal, non-exclusive, non-transferable license and right to access, by a means provided by Med USA, in its sole discretion, and use (a) Med USA’s Med Prime software program, and the specific modules included in the software program, and made available by Med USA to End User (“Licensed Program”), (b) written or electronic materials, such as installation, operating or service manuals, provided by Med USA in connection with the Licensed Program (“Documentation”), and (c) the database hosted by Med USA and used on connection with the Licensed Program (“Database”), all solely for the purposes set forth in this Agreement. The Licensed Program and Database shall be used solely for medical practice management, and if applicable, electronic medical and health care records management, all for the physician or medical practice that employs End User (“Provider”) and that has entered into a master services agreement with Med USA (“MSA”). The Documentation shall be used solely in connection with the use of the Licensed Program and Database. Notwithstanding anything to the contrary in this Agreement, all of End User’s rights under this Agreement are expressly subject to and limited by the terms of the MSA. End User represents and warrants to Med USA that he/she is an approved end user, and an employee of Provider or a person with whom Provider has a contractual relationship for the provision of services by such person to Provider, and acknowledges that if this representation is not true, End User may not use the Licensed Program, Documentation, or Database. An approved end user is an end user that Provider has identified in writing to Med USA by requesting for each such End User a user identification and password.
2. Limitations on Use of Licensed Program. No rights are granted to End User to do any of the following: (a) use, copy, display, access, distribute, transfer, alter, or modify the Licensed Program, Documentation, or Database, or otherwise create any derivative works, including, but not limited to, translations) of the Licensed Program, Documentation, or the Database; (b) attempt to or succeed in downloading, distributing, exporting, delivering, or transmitting the Licensed Program, Documentation, or the Database, including to any computer or other electronic device; or (c) sell, lease, grant access to, sublicense or otherwise make available the Licensed Program, or any portion of the Licensed Program, Documentation, or the Database to any third party. End User agrees to take all reasonable steps necessary to protect the Licensed Program, Documentation, and Database from unauthorized access, distribution, copying or use.
3. Hosting; Location of and Access to Licensed Program and Database. The Licensed Program and Database shall at all times remain on a computer server or servers maintained by or under the direction of Med USA. End User shall have access to the Licensed Program and Database solely through the Internet at a website determined by Med USA, or by another means designated by Licensor. Med USA may change the means of access from time to time. End User shall not receive a copy of the Licensed Program or the Database, but shall only have the right to access and use the Licensed Program and Database under this Agreement.
4. Interruptions in Service. Med USA agrees to use reasonable efforts to maintain access to the Licensed Program and Database but does not provide any assurance of a specific level or time of access to or availability of the Licensed Program or the Database. Provider acknowledges that access to the Database and Licensed Program may from time-to-time be unavailable to Provider, whether because of technical failures or interruptions, intentional downtime for service and maintenance, changes to the Database, Med USA’s server, the Licensed Program, or otherwise, or because of communications or other equipment failures, including lack of performance of Internet access or connections. Provider agrees that any modification to the Database, Med USA’s server, or the Licensed Program, and any interruption or unavailability of access to the Database, or access to or use of the Licensed Program, shall not constitute a default by Med USA under this Agreement, and that Med USA shall have no liability of any nature to Provider for any such modifications, interruptions, unavailability, or failure of access.
5. Passwords. End User shall have access to the Licensed Program and Database only with a user identification and password. User identifications and passwords will be user-specific and may not be disclosed, transferred or assigned to any other individual.
6. Intellectual Property Rights.
(a) End User expressly agrees and acknowledges that the Licensed Program, Database, and Documentation consist of proprietary, unpublished works of Med USA, or its licensors, protected under United States copyright, patent, trademark, and trade secret laws of general applicability. End User further acknowledges and agrees that all right, title, and interest in and to the Licensed Program, Database, and Documentation, together with all modifications, enhancements, copies, and derivative works, including all copyright rights, and all other intellectual property rights, are and shall remain with Med USA, or its licensors. End User further agrees that, by this Agreement, End User is only authorized to use and access the Database, Licensed Program, and Documentation in the manner provided in this Agreement and, except for such limited authorization to use the Database, Licensed Program, and Documentation, no right, title or interest in or to the Licensed Program, Documentation, or Database, or any copyright, patent trademark, or other intellectual property proprietary right relating thereto, is in any manner assigned, transferred or conveyed to End User. This Agreement does not convey to End User an interest in or to the Licensed Program, Database, or Documentation, but only a limited right of access and use revocable in accordance with the terms of this Agreement.
(b) The Licensed Program includes the Current Procedural Terminology (CPT®) Data File, which means Content from the print publication Current Procedural Terminology, Fourth Edition and CPT® Standard data file published by the AMA (“CPT® Content”), which is copyrighted by the American Medical Association (“AMA”), and CPT® is a registered trademark of the AMA.
(i) Med USA, as a party to a license agreement with the AMA, is authorized to grant End User a limited, non-exclusive, non-transferable, non-sublicensable license for End User to use CPT® Content in the Licensed Program, for the sole purpose of internal use by End User as provided in this Agreement. A license to the Licensed Program shall include the right to use CPT® content subject to and in accordance with this Agreement. The license granted to use the CPT® content shall automatically terminate upon termination of the Agreement between Med USA and AMA, unless prior written consent of AMA is obtained by Med USA or a direct license between End User and AMA is entered.
(ii) The provision of updated CPT® Content in the Licensed Program is dependent on a continuing contractual relationship between Med USA and the AMA.
(iii) End User is prohibited from making CPT® Content publicly available; creating derivative works (including translating); or transferring, selling leasing, licensing, or otherwise making available to any unauthorized party the CPT® Content, or any copy or portion thereof.
(iv) End User expressly acknowledges and agrees to the extent permitted by applicable law, use of CPT® Content is at End User’s sole risk and is provided “as is” without warranty of any kind. The AMA does not directly or indirectly practice medicine or dispense medical services. Fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT®, and the AMA is not recommending their use. CPT® Content does not replace the AMA’s Current Procedural Terminology book or other appropriate coding authority. The coding information contained in the CPT® Content should be used only as a guide.
(v) CPT® is commercial technical data, which was developed exclusively at private expense by the AMA, 330 North Wabash Avenue, Chicago, Illinois, 60611. This Agreement does not grant the Federal Government or any Federal Government End User a direct license to use CPT® Content and any such license granted shall be subject to FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items).
7. Confidential Information. End User agrees and acknowledges that it may have access to confidential information of Med USA. The Licensed Program, including source code, although the parties acknowledge that End User has no rights to access or use any source code, the Licensed Program, Database, Documentation, any non-public information delivered by or under the direction of Med USA, or used by End User in connection with the use of and access to the Licensed Program, Database, procedures, business methods, and concepts proprietary to Med USA, trade secrets, and any other non-public intellectual or proprietary rights (collectively “Confidential Information”) shall be maintained by End User as confidential and available exclusively for use by End User, as provided in this Agreement, and for no other purposes. End User shall not use or disclose any Confidential Information or any passwords to anyone, except as ordered by a court of competent jurisdiction or as otherwise required by law. Unless otherwise prohibited by law or the applicable court, End User shall not disclose any Confidential Information pursuant to a court order or as required by law until End User has given Med USA ten (10) days prior written notice and an opportunity to oppose such disclosure. End User agrees to take all reasonable steps necessary to protect Confidential Information from unauthorized access, distribution, copying or use. End User acknowledges that Med USA is and shall remain the sole and exclusive owner of all Confidential Information, as well as all memoranda, notes, papers, and documents containing any Confidential Information, and all copies thereof and objects associated therewith. End User agrees to immediately deliver all Confidential Information, in whatever form, that may be in End User’s possession or control to Med USA on termination of this Agreement, or at any other time on Med USA’s request, together with written certification of compliance.
8. Limitation of Liability. TO THE FULLEST EXTENT AVAILABLE UNDER APPLICABLE LAW, MED USA’S ENTIRE AND CUMULATIVE LIABILITY TO END USER, OR ANY THIRD PARTY, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE USE OF THE DATABASE, DOCUMENTATION, OR LICENSED PROGRAM, OR PERFORMANCE OF PREMIUM SERVICES OR ADDITIONAL SERVICES, OR ANY OTHER SERVICES, INCLUDING ANY TORT, SUCH AS NEGLIGENCE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID TO MED USA BY PROVIDER WHICH ARE ALLOCABLE TO END USER’S USE OF THE LICENSED PROGRAM UNDER THE MSA DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. WITHOUT WAIVER OF THE LIMITATIONS SET FORTH IN THIS SECTION OF THIS AGREEMENT, IN NO EVENT SHALL MED USA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF MED USA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MED USA AND END USER AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REPRESENT BARGAINED FOR ALLOCATIONS OF RISK, AND THAT THE FEES, CHARGES, AND COSTS OWING UNDER THIS AGREEMENT, REPRESENT THE ALLOCATIONS OF SUCH RISK.
9. Indemnification. End User hereby agrees to indemnify and hold harmless Med USA, and its officers, directors, managers, members, employees, agents and subcontractors, from and against any and all claims, actions, demands, and related liabilities, expenses, including staffing and administrative costs, penalties, and losses, including the payment of all legal expenses, including reasonable attorneys’ fees and costs, arising out of or connected with any default by End User under this Agreement. Med USA shall have the right to control its own defense and engage legal counsel acceptable to Med USA.
10. No Warranties. THE LICENSED PROGRAM, DOCUMENTATION, AND DATABASE ARE LICENSED TO END USER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MED USA DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE DATABASE AND LICENSED PROGRAM, AND ANY OTHER SERVICES PROVIDED BY MED USA UNDER THIS AGREEMENT, OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
11. Third Party Applications. The Licensed Program may include content, features, and information of and provided by third parties, and Med USA may offer or otherwise make available third-party software, products, or platforms that integrate with or may be used in connection with the Licensed Program, including but not limited to, CPT® Content (“Third Party Applications”). Third Party Applications may include linking End User, or providing End User, with certain functionality and access to third party content, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. End User acknowledges that Med USA is not responsible for such content or services provided by Third Party Applications. End User agrees to comply with and perform all of its obligations under all terms and conditions of third-party providers for such Third-Party Applications. Some Third-Party Applications may require the payment of additional fees, including to a third-party provider, and End User agrees to pay all such fees.
12. Term and Termination; Suspension.
(a) Med USA may terminate this Agreement at any time, with or without notice to End User.
(b) End User may terminate this Agreement at any time by terminating use of the Licensed Program, Documentation, and Database, and giving notice of termination to Med USA.
(c) Notwithstanding anything to the contrary, this Agreement shall terminate no later than the date on which the MSA is terminated. Further, this Agreement shall terminate immediately and without notice if End User ceases to be an employee of Provider.
(d) Upon termination of this Agreement for any reason, the license granted to End User under this Agreement, including without limitation the license to access and use the Licensed Program, Documentation, and Database, shall terminate automatically.
13. Injunction. End User agrees and acknowledges that a breach or violation of this Agreement by End User will result in immediate and irreparable injury and harm to Med USA. In such event, Med USA shall have, in addition to any and all remedies of law and other consequences under this Agreement, the right to an injunction, specific performance or other equitable relief to prevent the violation of the obligation under this Agreement. However, this shall in no way limit any other remedies which Med USA may have, including, without limitation, the right to seek monetary damages as provided under this Agreement.
(a) Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any conflicts or choice of laws provisions. End User acknowledges that by obtaining the rights to access and use the Licensed Program, Documentation, and Database, End User has transacted business in the State of Utah. End User hereby voluntarily submits to, consents to, and waives any defense to the jurisdiction of courts located in the State of Utah as to all matters relating to or arising from this Agreement.
(b) Electronic Transaction. Each of the parties to this Agreement expressly agrees that they may, but are not obligated to, conduct this transaction electronically, including by scan, email, fax, or other electronic means, pursuant to the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 and following, and the applicable Uniform Electronic Transactions Act, as amended or substituted. An electronic signature shall have the same effect as an ink signature, and the enforceability of this Agreement shall not be affected because it has been signed electronically or digitally. The person signing this Agreement by electronic means is the person represented as the signer of this Agreement, and he or she has full power and authority to electronically sign this Agreement.
(c) Attorney’s Fees. If any action is brought by any party to this Agreement against the other party regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees, costs, and expenses of litigation.
(d) Time is of the Essence. Time is of the essence with respect to the performance of all covenants and conditions in this Agreement for which time is a factor.
(e) Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, unless it is reasonably assumed that the parties would not have entered into this Agreement without the invalid provisions.
(f) Assignment/Delegation. End User may not assign its rights or delegate any of its duties under this Agreement, including the engagement of and delegation of any obligations and duties to any agents or third parties. Any attempt to assign, transfer, or delegate any of End User’s rights, duties, or obligations under this Agreement or enter into any sublicenses is void.
(g) Waiver. The waiver by any party of, or the failure of any party to take action with respect to, any breach of any term, covenant or condition contained in this Agreement shall not be deemed to be a waiver of such term, covenant or condition, or subsequent breach of the same, or any other term, covenant or condition contained in this Agreement.
(h) Entire Agreement; Inconsistency Between Agreements. This Agreement and to the extent applicable, the MSA, constitute the entire agreement between End User and Med USA concerning the subject matter of this Agreement. This Agreement supersedes and replaces any contemporaneous or prior proposal, representation, agreement, or understanding between the parties regarding the subject matter of this Agreement.
(i) Amendment. This Agreement may be amended by Med USA at any time in its sole discretion (“Amended Terms”), and End User agrees to and accept all such Amended Terms. However, no Amended Terms shall become effective until thirty days after notice of the Amended Terms has been posted on the website where access to the Licensed Program is granted.
(j) Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of Med USA and End User and is not intended to benefit any other third party, except the American Medical Association (AMA) as provided in the AMA Distribution License Agreement. No third party other than the AMA may claim any right or benefit under or seek to enforce any of the terms and conditions of this Agreement.
(k) Relationship of the Parties. Nothing in this Agreement shall be construed to create a partnership, or joint venture, or any other form of association, for tax purposes or otherwise, between Med USA and End User
(l) Survival. The provisions of Sections 5, 6 7, 8, 9, and 12 of this Agreement shall survive the termination of this Agreement.
(m) Defined Terms. All capitalized terms used in this Agreement which are not defined in this Agreement shall have the meanings given them in the applicable MSA.