MEDILOGIX
END CUSTOMER AGREEMENT
[Last Updated: August 10, 2017]
PLEASE READ THIS
AGREEMENT CAREFULLY BEFORE USING THE PRODUCTS
This End Customer Agreement (“Agreement”) forms a legally binding agreement between you or the entity that you represent (“Customer” or “you”) and MediLogix, LLC, located at 1512 Larimer Street, Suite 400, Denver, CO 80202 (“MediLogix,” “us” or “we”) for the use of our proprietary products (“Products”) at one or more venues.
By clicking on “I AGREE” when logging in to the Customer Portal for the first time, you represent that you have read, understood, and agree to be bound by this Agreement and to use the Products in compliance with this Agreement. The effective date of this Agreement is the date that you click on “I AGREE.”
If you do not agree to this Agreement, please do not click “I AGREE” but “I REJECT,” in which case you will not be permitted to access or use the Products.
1. DEFINITIONS
For purposes of this Agreement, the following terms have the corresponding definitions listed below:
1.1 “Business Intelligence and Analytics”
means the information collected from you which allows you to analyze and
visualize complex data about your business through the MediLogix Customer Portal.
1.2 “Customer” means the entity that rents equipment from MediLogix and wishes
to make use of the Products through the MediLogix Customer Portal.
1.3 “Customer Content” means content prepared by the Customer for use
with the Products.
1.4
“Customer Portal” means a private, secure electronic gateway to a collection
of digital files, services, and information, accessible over the Internet
through a web browser that enables MediLogix to share account-specific
information with a Customer.
1.5 “Documentation” means any user instructions, manuals,
specifications, or other documentation provided by MediLogix at medilogixllc.com
that relates to the use of the Products, including any Modifications.
1.6 “Intellectual Property Rights” means all (a) rights associated with
works of authorship throughout the world, including but not limited to
copyrights and moral rights, (b) trademarks, service marks, trade name and logo
rights, and similar rights, (c) trade secret rights and other rights in
inventions, know-how and confidential or proprietary information, (d) patent
rights, (e) domain names and Internet keywords, (f) other intellectual property
or other proprietary rights, whether arising by operation of law, contract,
license, or otherwise, and (g) registrations, initial applications, renewals,
extensions, provisional, continuations, divisions or reissues thereof now or
hereafter in force (including any rights in any of the foregoing).
1.7 “License” means the license that has been issued to MediLogix to
facilitate the provision of the Business Intelligence and Analytics.
1.8 “Licensor”
means the entity that issued a License to MediLogix to facilitate the provision
of the Business Intelligence and Analytics to Customer.
1.9 “Modification” or “Modifications” means all changes
incorporated into or used with the Products or Documentation, including
enhancements, standard releases, and patches.
1.10 “Privacy Policy” means MediLogix’s policy relating to privacy that
applies when using the Products (as modified from time to time).
1.11 “Products” means, collectively, the MediLogix proprietary Business
Intelligence and Analytics tools that customer accesses through the MediLogix Customer
Portal, together with the Documentation, and the Support Services.
1.12 “Support Services” means the
customer support services described at medilogixllc.com.
1.13 “Term” means the period during which a Customer is entitled to
access and use the Products pursuant to an End Customer Agreement.
1.14 “Terms of Use” means the terms and conditions that govern the use
of the Products through the MediLogix Customer Portal, which must be accepted
prior to accessing the Products.
2. SERVICES
2.1 Commencement date will be when you
first use the Products through the expiration of the Term, subject to the terms
of this Agreement. We also provide you with the Support Services and warranty
services as described in detail below.
2.2 Other than MediLogix’s responsibilities set forth in Section 2.1 above, you
are responsible for your use of the Products in full compliance with this
Agreement, including without limitation: (i) promptly updating the registration
information of the primary account holder for the Products if it changes or is
no longer current, accurate and complete; (ii) using commercially reasonable
efforts to prevent unauthorized access to, or use of, the Products, and
notifying MediLogix promptly of such unauthorized access or use; (iii) being
responsible for the accuracy, quality, integrity, legality, reliability, and
appropriateness of all activities of your employees; (iv) being responsible for
obtaining and maintaining all hardware and other communications equipment
needed to access the Products through the Customer Portal, and for paying all
third-party access charges incurred while using the Products; (v) being
responsible for, and assuming the risk of, any problems resulting from the
content, completeness, accuracy, and consistency of all Customer Content; (vi)
complying with all applicable local, state, federal, and foreign laws in using
the Products; and (vii) all applicable industry standards governing the subject
matter of this Agreement.
3. USE OF THE PRODUCTS
3.1 Subject to the terms and conditions of
this Agreement, MediLogix permits Customer to use the Products through the
MediLogix Customer Portal, for the duration of the Term, and to access and use
the Products solely for internal business purposes.
3.2 If, during the Term, MediLogix integrates any Modifications into the
Products each such Modification and all related Documentation, will be deemed
to be part of the Products and made available to you only under the terms of this
Agreement.
3.3 Customer acknowledges that MediLogix is the licensee of certain software used to create and develop the Products, and Customer further acknowledges that:
(i) Only a non-exclusive, non-sublicensable, non-transferable, limited license is granted to the Customer to use the Products, in machine-readable, object code form only, for Customer's internal use only by the permitted number of Customer’s authorized users or employees and on the authorized servers, and in accordance with the scope and terms set forth in this Agreement;
(ii) No ownership of, or title to the intellectual property in, the Products is transferred to the Customer. MediLogix’s Licensor owns and shall retain all rights, including intellectual property rights, in and to the software used in the Products;
(iii) The Customer must not reverse compile, reverse engineer, or disassemble any portion of the Products or the underlying software;
(iv) The Customer must not derive, or attempt to derive, the source code of the Products or underlying software;
(v) The Customer must not modify or create derivative works of the Products or underlying software; and
(vi) The Customer must not remove, alter or obscure any proprietary notice or identification, including copyright or trademark notices, contained in or on the Products or underlying software.
4. THIRD PARTY LICENSES
The Products include software licensed to MediLogix for use in the Products and provided by a third party. The terms and conditions of such license under which that software is incorporated in the Products is available upon request.
5. TERM AND TERMINATION
5.1 This Agreement will be effective with
respect to your use of the Products until the expiration of the Terms of Use of
the Products, unless earlier terminated under Section 5.2.
5.2 MediLogix may suspend your use of the Products at any time if MediLogix reasonably
believes that you have breached material terms of this Agreement. If such breach by you remains uncured for
five (5) days following receipt of notice from MediLogix, then MediLogix may
terminate this Agreement effective immediately. You may terminate this
Agreement for cause if we breach any material obligation of ours under this
Agreement and fail to cure such breach within ten (10) business days of our
receipt of written notice from you of such breach.
5.3 Upon the termination of this Agreement for any reason, your access to and
right to use the Products will terminate. Upon termination of this Agreement,
each party will return (or destroy) any Confidential Information of the other
party, including the Products and the underlying software, Documentation and
all archival or other copies of the Products, in its possession. The following provisions of this Agreement
will survive any termination of the Agreement: Section 5, 6, 7, 8, 9, 10, 11,
12, 14, 16, 17, 18, 19, 20, 21 and 22.
6. INTELLECTUAL PROPERTY
6.1 Except as provided in Section 6.2,
below, MediLogix owns all right, title, and interest, including all
Intellectual Property Rights therein, in and to the Products and Documentation.
Nothing in this Agreement will be construed as transferring or changing our
Intellectual Property Rights or interests in the Products in any respect. In
addition, we will own any and all right, title, and interest in and to any
feedback, suggestions, information, or materials you convey to us related to
the Products in connection with your use of the Products.
6.2 Other than the rights expressly granted to you in this Agreement, we
reserve all rights with respect to the Products and any and all related rights,
including any derivative works and any media, mode, or method of distribution
or transmission of the Products, whether available now or developed in the
future.
6.3 Neither party will use the other’s name, trademark, or trade name without
prior written consent, except in the instance of MediLogix using your name and
logo on our website or Customer Portal.
7. INDEMNIFICATION
The Customer will defend, indemnify, and hold MediLogix, its affiliates, and their employees, officers, directors, successors, assigns, agents, and customers harmless from and against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorneys’ fees arising out of or in connection with any and all claims, demands, actions, or proceedings brought by a third party to the extent based upon: (i) any grossly negligent, reckless, or intentionally wrongful act of the Customer or Customer’s assistants, employees, or agents; (ii) Customer’s misuse of the Products, the software licensed to MediLogix or breach of this Agreement; or (iii) Customer’s unauthorized modification or alteration of the Products, including any modification or alteration in violation of Section 3.3, above; (iv) Customer’s combination of the Products with other products, software, or services not supplied or specified by MediLogix; (v) Customer’s continued use of the Products without implementation within a reasonable time period of modifications provided by MediLogix; and (vi) any grossly negligent, reckless, or intentionally wrongful act of the Customer in privacy and data protection.
8. AUTHORITY
Each party hereby represents and warrants to the other that it has all necessary corporate power and authority to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement constitutes legal, valid, and binding obligations of the warranting party enforceable against the non-warranting party in accordance with its terms.
9. DISCLAIMER OF WARRANTIES
MEDILOGIX DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE, AND THE CUSTOMER UNDERSTANDS AND AGREES THAT THE PRODUCTS ARE PROVIDED “AS IS.” MEDILOGIX MAKES NO WARRANTY THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES MEDILOGIX MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED BY MEANS OF THE PRODUCTS, OR THAT ANY DEFECTS IN THE PRODUCTS WILL BE CORRECTED. FURTHER, MEDILOGIX DOES NOT WARRANT THAT THE PRODUCTS OR THE MEDILOGIX SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MEDILOGIX ALSO ASSUMES NO RESPONSIBILITY, AND IS NOT LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, CUSTOMER’S SOFTWARE, OR OTHER MATERIALS. MEDILOGIX’S LICENSOR SHALL NOT HAVE ANY WARRANTY OR DIRECT OR INDIRECT LIABILITY TO THE CUSTOMER.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL MEDILOGIX BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE (INCLUDING LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING FROM OR RELATING TO CUSTOMER’S USE OF THE PRODUCTS, EVEN IF MEDILOGIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER UNDERSTANDS THAT THESE LIMITATIONS OF LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT.
11. CONFIDENTIALITY
Except as described in Section 6.3 , any and all information provided directly or indirectly by one party (the “Disclosing Party”) to the other party (the "Receiving Party"), including, but not limited to, any software, inventions, processes, designs, drawings, specifications, blueprints, technical information, know-how, trade secrets, product, marketing, business, or financial information related to the Disclosing Party (collectively, "Confidential Information"), will be kept confidential by the Receiving Party and may not be used, communicated, disclosed, or divulged, except as necessary in the performance of the Receiving Party’s obligations under this Agreement or otherwise in connection with the deployment, operation, and maintenance of the Products. The Receiving Party agrees to limit access to the Confidential Information to those of its employees or contractors as are reasonably required for the purpose of performing the Receiving Party’s obligations under this Agreement or otherwise in connection with the deployment, operation, and maintenance of the Products. Prior to disclosing any Confidential Information to any of its employees or contractors, the Receiving Party will obtain from each such employee or contractor an agreement substantially as protective of the Disclosing Party’s Confidential Information as the provisions hereof and each employee or contractor agrees not to use such information except in the performance of obligations hereunder. Notwithstanding the foregoing, Confidential Information does not include any information that the Receiving Party can verify based on its written records was (i) already lawfully in the Receiving Party's possession without confidentiality obligations prior to receiving it from the Disclosing Party, (ii) independently received from a third party without an accompanying duty of confidentiality and without breach of such third party’s obligations of confidentiality, (iii) becomes available in the public domain through no action or inaction of the Receiving Party, or (iv) developed independently by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information. If Receiving Party becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Receiving Party will provide Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist Disclosing Party in seeking a protective order or another appropriate remedy.
12. PRIVACY AND DATA PROTECTION
12.1 MediLogix will handle all information
in accordance with our Privacy Policy (available at MediLogix.com). Please read
our Privacy Policy carefully.
12.2 When the Customer chooses to use the Products entirely on its own, it is
responsible for maintaining the security and privacy of Personal Information.
13. CONSENT TO ELECTRONIC COMMUNICATIONS; NOTICE.
By using the Products, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the Products. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. Any notice that you provide to us under this Agreement will be effective if it is in writing and sent electronically to it@medilogixllc.com, or by certified or registered mail, or insured courier, return receipt requested, to MediLogix at the address set forth above.
14. AMENDMENTS TO THIS AGREEMENT
We may periodically make changes to this Agreement. It is your responsibility to review the most recent version of this Agreement frequently and remain informed of any changes to it. You agree that your continued use of the Products after such changes have been published to our website at MediLogixllc.com will constitute your acceptance of such revised Agreement. For any material modifications to this Agreement, such modifications will automatically be effective thirty (30) days after they are initially posted on or through our website. In the event that such modifications materially alter your rights or obligations hereunder, such modifications will become effective upon the earlier of (i) your continued use of the Products with actual knowledge of such modifications, or (ii) thirty (30) days from publication of such modifications on or through our website.
15. ASSIGNMENT
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part, without the prior written consent of the other party, except in the event of a change of control. Any attempted assignment in violation of this Section 15 will be void and without effect. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
16. FORCE MAJEURE
Neither the Customer nor MediLogix will be liable under this Agreement by reason of any failure or delay in the performance of its obligations (except for payment obligations) on account of strikes (other than strikes of a party’s own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions (other than with respect to a party’s own employees), earthquakes, material shortages or any other causes that are beyond the reasonable control of such party so long as the parties will use commercially reasonable efforts, including the implementation of business continuity measures, to mitigate the effects of such force majeure.
17. WAIVER
No failure or delay by you or by us to exercise any right under this Agreement will constitute a waiver of that right.
18. SEVERABILITY
If a court of competent jurisdiction holds any portion of this Agreement invalid, then such portion will be deemed to be of no force or effect, and this Agreement will be construed as if such portion had not been included herein. If the deletion of such provision materially impairs the commercial value of this Agreement, then the Customer and MediLogix will attempt to renegotiate such provision in good faith.
19. INDEPENDENT CONTRACTORS
The Customer and MediLogix are independent contractors. Neither you, nor MediLogix, nor any of your or our respective employees, customers or agents, will be deemed to be the representative, agent, or employee of the other for any purpose whatsoever, and none of them have the right or authority to assume or create an obligation of any kind or nature, express or implied, on behalf of the other, or to accept service of any legal claims or notices addressed to or intended for the other.
20. ENTIRE AGREEMENT
This Agreement and any documents referred to in it (collectively, the "Governing Documents") constitute the entire agreement between MediLogix and the Customer with respect to the subject matter of the Governing Documents and supersede all prior agreements, understandings, and arrangements, oral or written, between MediLogix and the Customer. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter of the Governing Documents have been made either by MediLogix or the Customer which is not expressly set forth in the Governing Documents.
21. JURISDICTION AND LAW; LEGAL FEES
This Agreement will be governed by and construed in accordance with the laws of the state of Colorado. The Customer and MediLogix both agree to submit to the exclusive jurisdiction of the state or federal courts located in Denver, Colorado. In any dispute relating to any portion of this Agreement, the prevailing party shall be entitled to collect all attorneys’ fees and any other expenses required to settle such dispute.
22. CONTACTS
If you have any questions or comments about this Agreement, please contact MediLogix using the following contact information: MediLogix, LLC, 1512 Larimer Street, Suite 400, Denver, CO 80202; info@MediLogixllc.com