FOR YOUR CONVENIENCE, A COPY OF THIS DISCLAIMER AND END USER LICENSE AGREEMENT ARE AVAILABLE AT http://cmsicd.com/eula.html

 

DISCLAIMER:  

 

YOU ACKNOWLEDGE THAT BY PROVIDING THE CMS ICD APPLICATION (“SOFTWARE”), WE ARE NOT PROVIDING MEDICAL ADVICE, BILLING ADVICE, OR ANY OTHER ADVICE OF ANY KIND.  YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED TO BE A SUBSTITUTE FOR GENERALLY ACCEPTED MEDICAL PRACTICES PERFORMED BY PHYSICIANS OR OTHER QUALIFIED MEDICAL PROFESSIONALS OF ANY KIND.  YOU AGREE THAT YOU WILL USE THE SOFTWARE ONLY AS A SUPPLEMENT TO YOUR PRACTICE, THAT YOU WILL DO SO ONLY IN ACCORDANCE WITH GENERALLY ACCEPTED MEDICAL AND BILLING PRACTICES, AND THAT YOU WILL BE RESPONSIBLE FOR COMPLIANCE WITH THE APPLICABLE STANDARDS OF CARE WITH RESPECT TO YOUR PATIENTS AND WITH APPLICABLE LAW.  BY PROVIDING THE SOFTWARE, WE DO NOT UNDERTAKE ANY RELATIONSHIP WITH ANY PATIENTS, INCLUDING WITHOUT LIMITATION, A DOCTOR-PATIENT RELATIONSHIP, NOR DO WE UNDERTAKE ANY DUTY OF CARE WITH RESPECT TO ANY PATIENTS AS A RESULT OF YOUR USE OF THE SOFTWARE.


YOU ACNOWLEDGE THAT IT REMAINS YOUR RESPONSIBILITY TO ENSURE THAT ALL CLAIMS SUBMITTED FOR HEALTH CARE SERVICES COMPLY WITH ALL APPLICABLE LAWS.


YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN COMPUTER SOFTWARE, HARDWARE AND INTERNET CONNECTIVITY THAT MAY RESULT IN INTERRUPTIONS OR ERRORS IN THE SOFTWARE, LOSS OF PRIVACY, CONFIDENTIALITY, INFORMATION OR PROPERTY, AS WELL AS OTHER LOSSES, DAMAGES OR ADVERSE OCCURRENCES REGARDLESS OF THE MEASURES TAKEN TO AVOID SUCH OCCURRENCES.  

 

END USER LICENSE AGREEMENT

 

End Use License Agreement (the “Agreement”) between Think Tank Medical, LLC (“we” or “Think Tank Medical, LLC”) and the end user who accepts the terms in this agreement (“you” or the “User”).  

 

PLEASE READ THIS AGREEMENT CAREFULLY.  THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND THINK TANK MEDICAL AND THIS AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE THROUGH OUR INSTALLATION OF THE EXECUTABLE SOFTWARE PROVIDED BY THINK TANK MEDICAL (THE “SOFTWARE”) ON YOUR AUTHORIZED MOBILE DEVICE OR TABLET AND YOUR USE IN CONNECTION WITH THE SERVERS AND OTHER HARDWARE, IF ANY, PROVIDED BY THINK TANK MEDICAL, AS WELL AS ANY MANUALS, INSTRUCTIONS, DESCRIPTIONS, SEPCIFICATIONS, OR OTHER MATERIALS, IN HARD COPY OR ELECTRONIC FORM, PROVIDED BY THINK TANK MEDICAL DESCRIBING OR RELATING TO THE USE OF THE SOFTWARE (THE “DOCUMENTATION”), ABSENT ANOTHER SIGNED LICENSE AGREEMENT EFFECTIVE BETWEEN YOU AND THINK TANK MEDICAL.  TO THE EXTENT THIS AGREEMENT IS CONSIDERED TO BE AN AGREEMENT BETWEEN YOU AND THINK TANK MEDICAL, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH HEREIN.  BY CLICKING THE “I ACCEPT” BUTTON OR BY INSTALLING THE SOFTWARE, YOU AFFIRM THAT YOU UNDERSTAND THE TERMS SET FORTH HEREIN AND ACCEPT THIS AGREEMENT.  IF YOU DO NOT ACCEPT ALL TERMS OF THIS AGREEMENT, CLICK THE “REJECT” BUTTON AND DO NOT INSTALL THE SOFTWARE.


BY CLICKING THE “I ACCEPT” BUTTON OR BY INSTALLING, USING OR OTHERWISE ACCESSING THE SOFTWARE, YOU INDICATE THAT YOU INTEND YOUR ACT TO SERVE AS YOUR SIGNATURE TO THIS AGREEMENT AND TO HAVE THE SAME FORCE AND EFFECT AS THE MANUAL SIGNATURE, AND IF YOU ARE INSTALLING, USING, OR OTHERWISE ACCESSING THE SOFTWARE IN YOUR CAPACITY AS AN EMPLOYEE OR AGENT OF A BUSINESS ENTITY, YOU HAVE ACTUAL AUTHORITY TO LEGALY BIND SUCH ENTITY TO THIS AGREEMENT.

 

1.                  Grant of License

You are hereby granted a nonexclusive, nontransferable, nonsublicensable, limited, personal license to install, access and use the Software.   The License permits you to use only one copy of the software, only for your personal, internal business benefit and only in accordance with the terms and conditions of this Agreement.  Upon installing the Software, you may retain the media (if any) on which the Software was provided to you solely for backup purposes in accordance with this Agreement.  In addition, you may make one copy of the Software and the Documentation to be used by you solely for backup purposes in the event the original copy thereof is destroyed or damaged;  provided, however, that you must reproduce and include the copyright notice and any other notices that appear on the original copy on any additional copies thereof.  You have no right to receive, use or examine any source code or design documentation relating to the Software.  The License granted herein does not constitute a sale of the Software or the Documentation, or any portion or copy thereof. 

RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY THINK TANK MEDICAL.

 

2.                  Ownership

Think Tank Medical owns all right, title and interest in and to the Software, including without limitation all patent, trademark, copyright, trade secret, moral rights, and other intellectual property (collectively “Intellectual Property”) rights and reserves all rights not expressly granted hereunder.  This License does not convey to you an interest in or to the Software, but only a limited, revocable right to use the Software in accordance with the terms of this License Agreement.

You agree that any modifications or enhancement to the Software, or derivative works based upon the Software, developed by or on behalf of you without advice or support by Think Tank Medical, by Think Tank Medical for you, or by or on behalf of any other party shall be the exclusive property of Think Tank Medical.  In the event that, by operation of law or otherwise, any right, title or interest in or to the Software or any such enhancements, modifications, or derivative works of the Software vests in you or any employees, officers, directors, agents or other representatives (collectively, “Representatives”) of yours, you hereby irrevocably, unconditionally, and without encumbrance of any kind assign to Think Tank Medical, and forever waive and agree never to assert, and shall cause all such Representatives of yours to irrevocably, unconditionally, and without encumbrance of any kind assign to Think Tank Medical and forever waive and agree never to assert, all such right, title and interest.  In addition, you shall, and shall cause all such Representatives, to execute all documents, and undertake all other activities, reasonably required by Think Tank Medical in order to vest all such right, title and interest in Think Tank Medical.

You acknowledge and agree that each and every such Representative who accesses and uses the Software, or to whom any Think Tank Medical Software is disclosed or provides, as required in the performance of your duties and obligations or the exercise of your rights hereunder, shall, prior to such access, use, disclosure, or provision, execute a written agreement with you that imposes on such Representative obligations and use restrictions with respect to Think Tank Medical Software that are substantially similar to those imposed on you hereunder and wherein each such Representative irrevocably and unconditionally assigns to you and forever waives and agrees never to assert any and all right, title, and interest, including but not limited to, Intellectual Property rights, in and all subject matter conceived, created, or developed by such Representatives and arising out of or related to such Representative’s use of, access to or knowledge of the Think Thnak Medical software, as the case may be.

 

3.                  Restrictions; Acceptable Use Policy

You shall not (and shall not allow any third party to: (a) copy the Software or Documentation except for backup purposes as provided above;  (b) decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, data structures or other aspects of the Software or the Service; (c) remove, modify or obscure any product or service identifier, copyright, trademark, or other proprietary rights, notice or other notices, instructions, disclaimers or legends from any part of the Software, the Documentation, or the Service; (d) provide, lease, lend, host, use for timesharing, service bureau, ASP, SaaS or similar purposes or otherwise use or allow others to use any part of the Service, the Software or the Documentation to, or for the benefit of third parties; or (e) except as expressly specified in the Documentation, use or incorporate any hardware or software with any part of the Software.  Except as expressly allowed by this Agreement, you shall not use or disclose any aspect of the Software or the Documentation, or any related technology, ideas, algorithms, data or other information.

You expressly acknowledge and agree that there is no adequate remedy at law for a breach of this Section, that such a breach would irreparably harm Think Tank Medical and that Think Tank Medical is entitled, without limiting any of Think Tank Medical's other remedies at law or equity, to obtain injunctive relief (temporary or permanent) from any court of a competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach in addition to other remedies.

 

4.                  Term and Termination

You may terminate the Agreement at any time by returning or destroying the Software and any Documentation (and all copies thereof).  Think Tank Medical may terminate this Agreement, without prejudice to any other rights we have, if you fail to comply with any of the terms or conditions of this Agreement.   Upon any termination of this Agreement, the License and all of Think Tank Medical's performance obligations terminate and you must return or destroy the Software and any Documentation.  All provisions of the Agreement which reasonably should survive termination will do so; by way of example but not of limitation, all obligations regarding confidentiality survive.  Termination is not Think Tank Medical's exclusive remedy and all other remedies will be available to Think Tank Medical's whether or not the License is terminated.

 

5.                  Responsibility For Use

YOU UNDERSTAND THAT YOU ARE PERSONALLY RESPONSIBLE FOR THE USE OF THE SOFTWARE AND THE DOCUMENTATION BY YOU, ANY EMPLOYEE OR AGENT OF YOURS, ANY PERSON TO WHOM YOU HAVE GIVEN ACCESS TO THE ANY DATA, THE SOFTWARE, OR THE DOCUMENTATION, AND ANY PERSON WHO GAINS ACCESS TO ANY DATA, THE SOFTWARE OR THE DOCUMENTATION AS A RESULT OF YOUR FAILURE TO USE REASONABLE SECUIRTY PRECAUTIONS, EVEN IF SUCH USE OR ACCESS WAS NOT AUTHORIZED BY YOU, AS WELL AS ANY AND ALL RESULTS OF ANY SUCH USE OR ACCESS, AND YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THINK TANK MEDICAL, AND EACH OF ITS REPRESENTATIVES FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES (INCLUDING ANY SPECIAL, INDIRECT, INCIDENTIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES), CAUSES OF ACTION, CLAIMS, SETTLEMENT PAYMENTS, INTEREST, ACTIONS, SUITS, AWARDS, JUDGMENTS, DIMINUTION IN VALUE, FINES, FEES OR PENALTIES, AS WELL AS ANY OTHER CHARGES, COSTS OR EXPENSES (INCLUDING BUT NOT LIMITED TO, ANY COURT FILING FEE, COURT COST, ARBITRATION FEE, ARBITRATION COST, WITNESS FEE, AS WELL AS ANY OTHER FEE OR COST OF INVESTIGATING, DEFENDING OR OTHERWISE ASSERTING ANY CLAIM FOR INDEMNIFICATION UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, IN EACH CASE, ANY ATTORNEY’S FEES, OTHER PROFESSIONALS’ FEES OR DISBURSEMENTS) (COLLECTIVELY, “LOSS”), IN ANY WAY ARISING FROM OR RELATED TO ANY SUCH USE OR ACCESS.  IN NO EVENT SHALL THINK TANK MEDICAL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY IN ANY WAY ARISING FROM OR RELATED TO ANY USE OF OR ACCESS TO ANY DATA, THE SOFTWARE OR DOCUMENTATION.  

 

6.                   No Other Services

This Agreement does not obligate Think Tank Medical to provide you with any updates, upgrades, support or other services, whether in connection with the Software, the Documentation, or otherwise.  Think Tank Medical may provide you with various services, which may include professional, advisory or support services, subject to Think Tank Medical Media’s receipt of full payment for such services from you (or on your behalf).   The scope and use of such services (including the use of any updates or upgrades to the Software or the Documentation made available to you pursuant to such services) will be governed by Think Tank Medical then current policies and this Agreement.  

 

7.               User Information and Compliance With HIPAA

You agree that Think Tank Medical may collect and utilize performance data, usage data and other technical information gathered as part of your use of the Software or any such other services in order to better serve its customers, facilitate problems, trouble shooting and improve and enhance Think Tank Medical's various product and service offerings. Such information may be disclosed in a form that specifically identifies you or any other person.

Usage data may also be used in aggregate to establish usage trends across multiple users for marketing purposes.

Think Tank Medical may share User data that does not disclose Protected Health Information (“PHI”) with our partners, customers and affiliates.

You hereby consent to the collection and use of such information and data as described herein.

You also agree that Think Tank Medical's may publicly disclose that we are providing services to you and may include your name in promotional materials including press releases and on Think Tank Medical's website.  Neither of us may publicly use the other party’s logo or trademark without permission.
 

User and Think Tank Medical each acknowledge that certain parts of the Administrative simplification subtitle of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as codified at 42 U.S.C. §1320d through d-9 and the implementing federal privacy, security, and breach notification regulations contained in 45 CFR Parts 160 and 164 (“HIPAA Regulations”) may apply to your use of the Software.

User agrees that it shall not disclose Protected Health Information (“PHI”) to Think Tank Medical, or arrange for Think Tank Medical to create or receive PHI on User’s behalf without Think Tank Medical's prior written consent and, accordingly, absent such prior written consent, Think Tank Medical will not qualify as a business associate under HIPAA and the HIPAA Regulations.

YOU ARE RESPONSIBLE FOR GIVING ANY NOTICES AND OBTAINING ANY AUTHORIZATIONS REQUIRED UNDER STATE OR FEDERAL LAW OR REGULATION, INCLUDING ANY NOTICES OR AUTHORIZATIONS REQUIRED UNDER HIPAA. YOU ARE ALSO RESPONSIBLE FOR ENSURING COMPLIANCE WITH ALL REQUIREMENTS IMPOSED BY HIPAA OR ANY OTHER LAW OR REGULATION WITH RESPECT TO ANY DATA CREATED OR TRANSMITTED THROUGH THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, IMPLEMENTING REASONABLE AND APPROPRIATE ADMINISTRATIVE, PHYSICIAL, AND TECHNICAL SAFEGUARDS WITH RESPECT TO ANY INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION THAT IS CREATED BY THE SOFTWARE.

WE MAKE NO REPRESENATIONS AS TO WHAT STEPS YOU MUST FOLLOW TO COMPLY WITH HIPAA OR ANY OTHER LAW OR REGULATION.  

 

8.                  Confidential Information

“Confidential Information” means any and all of Think Tank Medical's confidential or proprietary technical or business information, in any tangible or non-tangible form.

User acknowledges that the Software and the Documentation constitute valuable trade secrets of Think Tank Medical and the Software and the Documentation are the Confidential Information of Think Tank Medical.

User agrees that it shall (i) not use any of the Confidential Information except to achieve the purposes of this Agreement; (ii) not provide access to or disclose any Confidential Information to any third party; and (iii) take actions to protect the confidentiality of all Confidential Information which are at least as stringent as the precautions it takes to protect its own confidential information and which in all cases are at least reasonable precautions.

Confidential Information received by Think Tank Medical from a third party will be deemed the property of Think Tank Medical.

The obligations under this Section shall not apply to information which you can demonstrate by clear and convincing evidence through written records: (i) was already known to you at the time of disclosure or becomes known to you from a third party without breach of this Agreement or any legal, contractual or fiduciary obligation on the part of you or any third party; (ii) is or becomes publicly known through no wrongful act and without breach of this Agreement or any legal, contractual or fiduciary obligation on the part of you or any third party; (iii) is rightfully received from a third party without restriction on disclosure and without breach of this Agreement or any legal, contractual, or fiduciary obligation on the part of you or any third party; or (iv) is independently developed by you without reference to any Confidential Information and without breach of this Agreement or any legal, contractual, or fiduciary obligation on the part of you or any third party.

You may make disclosures of Confidential Information when required by subpoena, court order or other applicable law but only if you (i) limit disclosure to the information specifically required; (ii) to the extent practicable and permitted by applicable law, promptly provide Think Tank Medical with prior written notice of the requirement for such disclosure and allow Think Tank Medical to participate in any proceeding regarding such disclosure; and (iii) use diligent efforts to obtain a protective order or other confidential treatment for such Confidential Information. You expressly acknowledge and agree that any misuse or disclosure of Confidential Information would cause irreparable harm and, without limiting any of Think Tank Medical's other remedies at law or equity, in the event of any actual or threatened breach or violation of the provisions of this Agreement concerning Confidential Information, Think Tank Medical is entitled, without limiting any of Think Tank Medical's other remedies at law or in equity, to obtain injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach in addition to other remedies.

 

9.                  U.S. Government End-User Rights

You acknowledge and agree that the Software and the Documentation is a commercial product, which was developed at private expense.  Accordingly, the rights acquired by any and all U.S. government customers or end-users who acquire the Software and the Documentation, including its rights to use, modify, reproduce, release, perform, display or disclose the Software and the Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.  To the extent any of the Software and the Documentation is found to be non-commercial by the U.S. government under applicable federal law and regulations, any provision thereof to any agency, department or entity of the U.S. government is on a “restricted rights” or “limited rights” basis to the greatest extent permitted by applicable federal law and regulations.  As necessary, you agree to maintain a legend, in addition to other applicable notices of intellectual property rights, in the form provided under applicable federal law and regulations.  Notwithstanding anything to the contrary, all rights in unpublished materials are hereby expressly reserved by Think Tank Medical or its third party licensors (as applicable) under the copyright and other intellectual property laws of the United States.

 

10.              Export Compliance

User will comply with all applicable export laws and regulations of any United States or foreign agency or authority.  User agrees that it will not export or re-export, or allow the export or re-export of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws or regulations. User agrees to indemnify, defend and hold harmless Think Tank Medical and each Think Tank Medical's Affiliate from and against any and all Loss in any way arising out of or related to User’s breach of this Section.

 

11.              Disclaimer of Warranty

THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED TO USER ON AN “AS IS, WHERE-IS, AND AS-AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND OR NATURE WHATSOEVER.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN OR OTHER STATEMENT MADE BY THINK TANK MEDICAL OR ANY THINK TANK MEDICAL AFFILIATE IS EFFECTIVE TO CREATE ANY WARRANTY OR OTHER LIABILITY OR OBLIGATION CONTRARY TO THIS DISCLAIMER.  USER EXPRESSLY AGREES THAT USE OF THE SOFTWARE AND THE DOCUMENTATION IS AT USER’S SOLE RISK.  TO THE EXTENT ALLOWED BY APPLICABLE LAW, THINK TANK MEDICAL HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY ASPECT OF THE SOFTWARE AND THE DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, AS TO THE CONDITION, VALUE, QUALITIES, PROVISION, OPERATION, USE, RESULTS OR WORKMANSHIP THEREOF, OR THE ABSENCE OR CORRECTION OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.

THINK TANK MEDICAL SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY REPRESENTATIONS OR WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE.  THINK TANK MEDICAL  MAKES NO WARRANTY OR REPRESENTATION THAT THE SOFTWARE AND THE DOCUMENTATION, OR ANY ASPECT OF THE CONDITION, VALUE, QUALITIES, PROVISION, OPERATION, USE, RESULTS OR WORKMANSHIP THEREOF, WILL MEET USER’S REQUIREMENTS, WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR FREE, WILL BE ACCURATE OR COMPLETE, WILL BE COMPLETELY SECURE, OR WILL NOT BE SUSCEPTIBLE TO UNAUTHORIZED ACCESS, INTRUSION OR ATTACK BY THIRD PARTIES OR TO INFECTION BY COMPUTER VIRUS OR OTHER MALICIOUS OR INJURIOUS CODE.  IN NO EVENT SHALL THINK TANK MEDICAL OR AN THINK TANK MEDICAL  AFFILIATE BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS, ERRORS, INACCURACIES, INCOMPLETENESS OR UNAUTHORIZED ACCESS, INTRUSION, ATTACK OR INFECTION, OR OF ANY FAILURE TO MEET USER’S REQUIREMENTS, WHETHER OR NOT THE PARTY IN WAS NOTIFIED, ADVISED, OR WARNED, OR OTHERWISE KNEW OR SHOULD HAVE KNOWN, OF ANY SUCH REQUIREMENTS OR THE POSSIBILITY OF ANY SUCH CONSEQUENCES.  

 

12.              Limitation of Liability

TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL THINK TANK MEDICAL OR ANY THINK TANK MEDICAL AFFILIATE BE LIABLE TO THE USER OR ANY THIRD PARTY, UNDER ANY THEORY OF LAW OR EQUITY, REGARDLESS OF THE FORM OF THE CLAIM OR WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF ANY VIOLATION OF LAW (INCLUDING, WITHOUT LIMITATION, THE FALSE CLAIMS ACT), INFRINGEMENT, BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE, WHETHER SOLE, JOINT OR CONCURRENT, GROSS NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OR SIMILAR OR RELATED CLAIMS ARISING FROM THE ACTS OR OMISSIONS OF ANY PERSON), INDEMNITY, CONTRIBUTION, STATUTE, COMMON LAW OR OTHERWISE, FOR ANY LOSS THAT COULD HAVE BEEN AVOIDED BY THE DAMAGED PARTY’S USE OF REASONABLE DILIGENCE OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOSS ASSOCIATED WITH BUSINESS INTERRUPTION, BODILY INJURY OR DEATH, LOSS OF PRODUCTION, LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF OPPORTUNITIES OR LOSS OF GOODWILL, IN ANY WAY ARISING IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, EVEN IF THE PARTY IN QUESTION WAS NOTIFIED, ADVISED OR WARNED OR OTHERWISE KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

 

13.              Governing Law and Dispute Resolution

This Agreement shall be deemed to have been entered into in the State of Florida, and any matters regarding the interpretation or enforcement hereof shall be governed exclusively by the law of the State of Florida, without regard to its conflicts of law principles, except in so far as the federal law of the United States of America may control any aspect of this Agreement, in which case federal law shall govern such aspect.  The United Nations Convention on International Sale of Goods Act shall not apply to this Agreement.

You hereby irrevocably and unconditionally (i) agree to accept service of process by mail and submit to the exclusive jurisdiction of state and federal courts in Palm Beach County, Florida, for purposes of any action, suit or proceeding arising out of the transactions contemplated by this Agreement (a “Proceeding”), (ii) waive any objection you may have to the venue of any Proceeding in such courts, and (iii) waive, and agree not to plead or to make, any claim that any Proceeding brought in any state and federal courts located in Palm Beach County, Florida has been brought in an inconvenient or otherwise improper forum.   You also agree that you will not bring or participate in any class action lawsuit against Think Tank Medical or any of its directors, officers, employees, agents, representatives, resellers, licensors, suppliers, investors, owners, affiliates or assigns.  

 

14.              Force Majeure

Neither party shall have any liability for any failure to perform its obligations under this Agreement if such failure is caused by fire, flood, natural disaster, epidemic, act of God, strike, civil unrest, riot, insurrection, revolution, war, terrorism, lack or failure of suppliers or transportation facilities, failure of utilities or telecommunications, law or governmental regulation or other cause or event which is of a magnitude or a type beyond the reasonable control of such party.  

 

 15.              General

Think Tank Medical may, at its sole discretion, freely assign, sell, delegate or transfer this Agreement and any of its rights or obligations hereunder, in whole or in part, to any third party, including, but not limited to, any third party who succeeds to substantially all its business or assets.

Users may not assign, sell, delegate, sublicense or transfer this Agreement or any of its rights, obligations, liabilities, or duties hereunder, in whole or in part, to any third party (including any affiliated party) without Think Tank Medical prior written consent.  Any purported attempts by User to do so in violation of the immediately preceding sentence are void.  There are no third-party beneficiaries to the Agreement, meaning that this Agreement shall not be for the benefit of or enforceable by any person or entity not a party hereto and shall not confer any rights or remedies upon any person or entity other than the parties and their respective successors and permitted assigns.

This Agreement constitutes the entire, final, complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, representations, negotiations, conversations and discussions, between the parties, whether written or oral, as well as all industry customs or trade practices, relating to the subject matter hereof except in the event the parties have a signed purchase order, master agreement, or other contact that governs the subject matter hereof.

This Agreement may not be modified except by User’s acceptance of a more recent End User License Agreement applicable to the Software subsequently provided by Think Tank Medical or by a written instrument dated subsequent to the effective date of this Agreement and accepted by the signature of the duly authorized representatives of the parties.  No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.

Section headings and titles are only provided for convenience and shall not be used in interpreting this Agreement.  Except as otherwise expressly provided herein, all remedies available to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.  If any provision of this Agreement is prohibited by law or held to be void or unenforceable, the remaining provisions hereof will not be affected, this Agreement will continue in full force and effect as if such void or unenforceable provision had never constituted a part hereof, and the void or unenforceable provision will be automatically amended so as best to accomplish the original objectives of such provision within the limits of applicable law.  

 

YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, UNDERSTAND ALL SUCH TERMS AND CONDITIONS AND AGREE TO BE BOUND THEREBY.

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