Provider Signup - License Agreement
In order to register as a licensed MedKaz Provider, and to be paid for uploading patient encounter records for distribution to the patient's MedKaz, you must accept the terms of this agreement by clicking "I Agree" and entering your PIN using the controls shown here:
If you choose not to become a licensed MedKaz provider, click "No thank you". You will not be able to register, login or access the MedKaz Server, and will not be able to upload patient encounter records or be paid.
Click one of the buttons to continue with the signup or exit.
The text of the License Agreement follows:
PROVIDER SOFTWARE LICENSE AGREEMENT
MEDKAZ® SYSTEM SOFTWARE
BY DOWNLOADING, INSTALLING OR USING MEDKAZ™ SYSTEM SOFTWARE OR ITS RELATED WRITTEN OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE "PROGRAMS"), YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. WE RECOMMEND THAT YOU PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE PROGRAMS.
YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ORGANIZATION NAMED IN YOUR REGISTRATION FORM, IF ANY, AND IF SUCH AN ORGANIZATION IS NAMED, SUCH ORGANIZATION SHALL BE DEEMED TO BE THE "PROVIDER" REFERRED TO IN THIS AGREEMENT. IF NO SUCH ORGANIZATION IS NAMED, THEN YOU INDIVIDUALLY SHALL BE DEEMED TO BE THE "PROVIDER".
PROVIDER HEREBY REPRESENTS AND WARRANTS THAT PROVIDER HAS OBTAINED ALL CONSENTS AND WAIVERS NECESSARY TO STORE AND TRANSMIT ANY INFORMATION, DATA OR OTHER CONTENT (COLLECTIVELY, "CONTENT") UPLOADED THROUGH THE PROGRAMS, INCLUDING, WITHOUT LIMITATION, ALL CONSENTS AND WAIVERS REQUIRED BY THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT, AS AMENDED ("HIPAA"). PROVIDER COVENANTS THAT IT WILL ONLY TRANSMIT AND/OR ACCESS CONTENT THROUGH THE PROGRAMS THAT IT IS DULY AUTHORIZED TO TRANSMIT AND/OR ACCESS.
PROVIDER UNDERSTANDS AND AGREES WITH THE LIMITATIONS ON LIABILITY PROVIDED IN SECTION 12 BELOW. PROVIDER AGREES THAT HRC (AS DEFINED BELOW) WILL NOT BE RESPONSIBLE IN ANY WAY FOR PROVIDER'S USE OF OR RELIANCE UPON ANY INFORMATION ACCESSED USING THE PROGRAMS. PROVIDER UNDERSTANDS THAT HRC MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE ACCURACY OR COMPLETENESS OF ANY SUCH INFORMATION.
This License Agreement (the "Agreement") is a binding, legal contract between Provider and HEALTH RECORD CORPORATION ("HRC").
1. LICENSE GRANT.
- (a) License. HRC grants Provider a non-exclusive and non-transferable license to install, display and use one copy of the executable object code version of the Programs which are accessed or downloaded following the acceptance of this Agreement for its internal business purposes and only as provided in the documentation, written or electronic, provided with the Programs (the "Documentation"). HRC reserves the right to make corrections, improvements or enhancements to the Programs without notice to the Provider and without obligation to furnish the said corrections, improvements or enhancements to the Provider.
- (b) Exclusivity. HRC reserves the right to market, distribute, supply or sell HRC's MedKaz device and applications, including, without limitation, the Programs and the Documentation, each as made available by HRC from time to time, either itself or through any number of third parties, including sales representatives, distributors, OEMs and joint marketers. During the term of this Agreement, Provider shall not (a) develop, promote, offer, sell, deliver, tender, adopt, use or support, itself or through any other party, any patient-focused portable personal health record system (a "Competitive Product"), or (b) upload patient information to a Competitive Product, or (c) enter into an agreement or joint venture with a third party to develop, market, co-market, sell or co-sell Competitive Products.
2. RESTRICTIONS.
- (a) Certain Restrictions. Provider may not: (i) reproduce or copy the Programs; (ii) use, or cause or permit the use of, the Programs n whole or in part for any purpose other than as permitted under this Agreement; (iii) distribute, sell, lease, sublicense or otherwise transfer rights to the Programs to any third party; (iv) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Programs (except to the extent applicable laws specifically prohibit such restriction); (v) modify or create any derivative works of the Programs, including translation or localization; or (vi) remove or alter any patent, trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Programs.
- (b) Authorized Users. The Programs may be accessed and used only by employees of Provider or its third party consultants acting on its behalf who have a need to use the Programs to accomplish Provider's internal business purposes and who are bound in writing to comply with all restrictions of this Agreement. Provider shall be fully liable for all actions of its employees and consultants and their failure to comply with any applicable provision of this Agreement.
- (c) Software Dependencies. Provider understands that certain third party databases, operating systems, network applications, Servers, peripherals, hand-held units, and other software and hardware described in the Documentation ("Third Party Products") may be required for proper use of the Programs. HRC is not responsible for supplying, maintaining, supporting or configuring such Third Party Products, and it is Provider's sole responsibility to ensure that all Third Party Products are properly installed, configured and maintained.
- (d) Security. Provider shall take all reasonable steps to ensure that no unauthorized persons have access to the Programs or any Content used with the Programs (including, without limitation, patient medical records), and to ensure that no persons authorized to have such access shall take any action which would be in violation of this Agreement. Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Programs, securing the Provider's network on which such Programs and any data used therewith (including, without limitation, patient medical records) resides from outside intrusion, preventing the making of unauthorized copies of the Programs, and administering and monitoring use of the Programs. HRC is not responsible for losses or damage caused by Provider's failure to safeguard the Programs.
- (e) Reporting. Provider shall promptly report to HRC any actual or suspected violation of this Section 2, and shall take such further steps as may reasonably be requested by HRC to prevent or remedy any such violation.
3. FEES. In the event that a fee is required for the use of the Programs, payment of such fee shall be made in full by Provider, together with all applicable taxes and duties, to HRC in the manner specified by HRC. In the event a patient is required to pay any fees to HRC in connection with the use of the Programs by Provider and Provider and HRC have agreed in writing that HRC and Provider will share any such fees, HRC shall send to Provider the portion of such fees owed to Provider promptly following HRC's receipt of payment from the applicable patient.
4. TRANSMISSION OF CONTENT.
- (a) Right to Transmit Content. Provider represents and warrants that all Content transmitted through the Programs are accurate and complete and that Provider has all rights necessary to transmit such Content through the Programs. Provider covenants that it will transmit and/or access through the Programs only Content that Provider is duly authorized to transmit and/or access.
- (b) License to HRC. By transmitting Content through the Programs in connection with any service or feature provided by HRC or the Programs, Provider grants HRC a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to use display, transmit, modify and prepare derivative works of such Content in any media solely for the purpose of providing such service or feature.
- (c) Third Party Data. HRC shall have no responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of Content provided by third parties that is provided to or accessed by Provider through the Programs, and HRC shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any such Content provided by third parties. Provider acknowledges that use of any such Content provided by a third party that is generated, obtained or acquired through the use of the Programs is at Provider's sole risk and discretion.
5. COMPLIANCE WITH LAWS. Provider agrees to comply with all applicable laws and regulations of all jurisdictions with respect to the Programs, including, without limitation, all applicable data and patient privacy laws, including, without limitation, HIPAA, and all applicable export laws. Provider shall obtain, at Provider's own expense, any consents, permits or waivers required to use the Programs.
6. NOT MEDICAL ADVICE. Neither HRC or the Programs offer medical advice. Any Content accessed through the use of the Programs is for informational purposes only, and is not intended to cover all possible uses, directions, precautions, drug interactions, or adverse effects.
7. TERMINATION. Without prejudice to any other rights, HRC may terminate this Agreement at any time upon written or electronic notification to Provider if Provider has breached any provision of this Agreement. Upon termination, Provider shall delete all copies of the Programs in its possession and control and cease all use of the Programs. HRC shall have the right to disable electronically Provider's unauthorized use of the Programs and resort to other "self help" measures deemed appropriate by HRC.
8. PROPRIETARY RIGHTS. Title to the Programs, and patents, copyrights, trademarks and all other intellectual property rights applicable thereto, shall at all times remain solely and exclusively with HRC and its suppliers, and Provider shall not take any action inconsistent with such ownership. Any rights not expressly granted herein are reserved to HRC and its suppliers. Provider will not use or display any trademark, trade name, insignia, or symbols of HRC for any purpose whatsoever without HRC's prior written consent. Notwithstanding the foregoing, HRC does not claim any ownership of any medical records or other information uploaded onto the MedKaz device by Provider or any healthcare provider.
9. NO OBLIGATION TO SUPPORT. HRC shall provide no maintenance or installation services of any kind, error corrections, bug fixes, patches, updates or other modifications hereunder. In the event that HRC, at its sole option, provides updates, error corrections, bug fixes, patches or other modifications to the Programs to Provider ("Program Updates"), the Program Updates will be considered part of the Programs, and subject to the terms and conditions of this Agreement.
10. INTERNET DISCLAIMER. Provider may be required to access or use the Internet in connection with the use of the Programs. Provider understands and agrees that the Internet is an unregulated, public network over which HRC exerts no control. HRC makes no representations or warranties whatsoever, and shall have no liability whatsoever, with respect to the accuracy, dependability, privacy, security, authenticity or completeness of data transmitted over or obtained using the Internet, or any intrusion, virus, disruption, loss of communication, loss or corruption of data, or other error or event caused or permitted by or introduced through Provider's use of the Internet. Provider is solely responsible for implementing adequate firewall, password and other security measures to protect its systems, data and applications from unwanted intrusion, whether over the Internet or by other means.
11. DISCLAIMER OF WARRANTY. THE PROGRAMS ARE PROVIDED ON AN "AS IS" BASIS, AND, EXCEPT AS EXPRESSLY PROVIDED IN THE DOCUMENTATION, WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES THAT THE PROGRAMS ARE FREE FROM DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. SPECIFICALLY, BUT WITHOUT LIMITATION, EXCEPT AS EXPRESSLY PROVIDED IN THE DOCUMENTATION, LICENSOR NOT WARRANT THAT: (i) THE CONTENT AVAILABLE ON THE PROGRAMS IS ACCURATE, COMPLETE OR FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) PROVIDED BY THIS PROGRAM WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE CONTENT, OR THE SERVER(S) THAT MAKES THE CONTENT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS BORNE BY PROVIDER. SHOULD THE PROGRAMS PROVE DEFECTIVE IN ANY RESPECT, PROVIDER AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PROGRAMS IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
12. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PROGRAMS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT SHALL HRC OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR (A) THE USE OF OR RELIANCE UPON ANY INFORMATION ACCESSED THROUGH THE PROGRAMS BY PROVIDER OR ANY THIRD PARTY, OR (B) ANY ACTUAL OR ALLEGED ACTS OF MEDICAL MALPRACTICE COMMITTED BY PROVIDER OR ANY THIRD PARTY.
13. INDEMNIFICATION. Provider agrees to indemnify, hold harmless and defend HRC and its employees, agents and consultants from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, reasonable attorneys' fees, resulting directly or indirectly from a claim by a third party that arises in connection with Provider's use of the Programs other than as expressly authorized by this Agreement, including, without limitation, any claim based on Provider's actual or alleged medical malpractice.
14. U.S. GOVERNMENT END USERS. If Provider is an agency of the United States Government, the Programs constitutes "commercial computer software" or "commercial computer software documentation." Absent a written agreement to the contrary, the Government's rights with respect to the Programs are limited by the terms of this Agreement, pursuant to FAR 12.212(a) and/or DFARS 227.7202-4, as applicable.
15. GOVERNING LAW. This Agreement shall be subject to and shall be construed in accordance with the laws of the State of Vermont, U.S.A., without regard to its choice of law provisions. EXCEPT AS PROVIDED BELOW, THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THIS AGREEMENT IS THE STATE OF VERMONT. PROVIDER AND HRC CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS. The parties expressly exclude any application of the United Nations Convention on Contracts for the International Sale of Goods.
16. DISPUTES. All disputes arising out of or relating to this Agreement shall be finally resolved by arbitration conducted in the English language in the State of Vermont, under the commercial arbitration rules of the American Arbitration Association. The parties shall appoint as sole arbitrator a retired judge who presided in the State of Vermont. The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys' fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, HRC shall be entitled to seek injunctive relief, security, or other equitable remedies from any court of competent jurisdiction. Under no circumstances shall the arbitrator be authorized to award punitive damages, including but not limited to federal or state statutes permitting multiple or punitive damage awards. Any purported award of punitive or multiple damages shall be beyond the arbitrator's authority, void, and unenforceable.
17. GENERAL. (a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. (b) This Agreement may be amended only by a writing signed by both parties. (c) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (d) The language of this Agreement is English. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (f) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (g) Neither this Agreement nor any rights, obligations or licenses granted hereunder may be assigned or delegated by Provider without the prior written consent of HRC.