MEDICAL OFFICE INFORMATION SYSTEM™ END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or single entity) and APPLIED INFORMATICS FOR HEALTH SOCIETY (“AIHS”) for the Licensed Software (as defined below). BY ACCEPTING INSTALLATION OF, COPYING, OR OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCEPT DELIVERY OR INSTALLATION OF THE LICENSED SOFTWARE AND DO NOT OPEN, COPY OR OTHERWISE USE THE LICENSED SOFTWARE AND RETURN IT TO YOUR PLACE OF PURCHASE. AIHS RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS EULA AT ANY TIME WITHOUT NOTICE TO YOU; CONTINUED USE OF THE LICENSED SOFTWARE THEREAFTER INDICATES YOUR AGREEMENT TO ANY SUCH MODIFICATIONS.
1.1 “Licensed Software” means the specified software components comprising the practice management and electronic medical records software program called “Medical Office Information System” (also known as “MOIS”™ or “MedOffIS”™), and any version thereof, including but not limited to any subsequent modifications, corrections, revisions, or upgrades to the software components. “Licensed Software” includes Related Documentation, but excludes source code of any kind.
1.2 “Related Documentation” means any printed or on-line documentation and training materials for the Licensed Software, including but not limited to any configuration documentation, technical systems, operating documentation or user documentation provided to you by AIHS in connection with the Licensed Software.
1.3 “Primary Services” means the installation and maintenance of the Licensed Software, and any support services related to the Licensed Software, excluding the Secondary Services.
1.4 “Secondary Services” means (a) installation of the Licensed Software other than the initial installation; (b) training provided to persons using the Licensed Software; (c) trouble shooting services requested by you; (d) support services not related to performance of the Licensed Software; (e) conversion, import or export of data from or to other systems; (f) custom changes to Licensed Software; and (g) support for outdated versions of the Licensed Software.
1.5 “Read-Only Mode” means, with respect to functionality of the Licensed Software, the ability to read previously entered data on the hardware screen on which the Licensed Software is installed. When the Licensed Software is in Read-Only Mode, users cannot enter new data, schedule appointments, print patient files or otherwise utilize other functional components of the Licensed Software.
2. USER ACCOUNT
2.1 Prior to your first use of the Licensed Software, you will be asked to create a User Account and choose a user ID and password. The information you provide in your User Account will be relied upon for delivery of any notices or invoices from AIHS to you, and you are responsible for keeping your account information accurate and up-to-date. You are solely responsible and liable for all activities through your User Account. To prevent unauthorized use, you shall keep your password confidential and shall not share it with any third party. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your User Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for credit card details, passwords or other data. AIHS takes no responsibility for any damages or loss caused by your failure to comply with the obligations in this paragraph 2.1.
3.1 AIHS owns all right, title and interest in and to the Licensed Software, including intellectual property rights therein. The License Software is licensed, not sold. Nothing herein is to be construed as any transfer of any rights, title or interest whatsoever in and to the Licensed Software.
4.1 Subject to compliance with this EULA and payment of fees pursuant to section 6 hereof, AIHS grants to you a limited, non-exclusive, non-transferable license to use one (1) copy of the Licensed Software per User Account for the purpose (the “Purpose”) of: (i) providing health care services to your patients, or (ii) if you are employed or engaged to perform administrative services for one or more health professionals, for the purpose of performing such administrative services, provided that you may not use the Licensed Software to provide administrative services to any health professional not licensed by AIHS to use the Licensed Software. You are also permitted to make one (1) additional copy of the Licensed Software strictly for backup and disaster recovery purposes.
4.2 Subject to the payment of fees pursuant to section 6 hereof, you may authorize your employees and/or independent contractors (“Staff”) to use the Licensed Software, provided that (a) you cause any authorized Staff to use the Licensed Software to comply with the terms of this EULA; (b) such use is limited to the extent necessary to perform the Purpose; (c) other health care professionals may not direct your Staff to use the Licensed Software for services not provided by you; and (d) to the extent that any Staff are independent contractors, such independent contractors are not competitors or employees of competitors of AIHS.
4.3 You may not: (i) modify, adapt, translate, decompile, create derivate works based on or reverse engineer the Licensed Software, or attempt to do any of the foregoing; or (ii) sell, assign, distribute, disclose or otherwise transfer or make available the Licensed Software, in whole or in part, to any third party.
5.1 Subject to the terms and conditions of this EULA, including payment of fees under section 6 and upgrades to the Licensed Software under section 7, AIHS shall be responsible for providing you with the Primary Services.
5.2 If requested from you, AIHS shall identify and refer to you any training and/or other professional services available in relation to the Licensed Software.
6.1 AIHS shall deliver to you monthly or yearly invoices (as agreed between you and AIHS) for any applicable implementation fees, licensing fees, Primary Services fees, upgrade fees or other miscellaneous fees and all applicable taxes. You shall pay such fees and applicable taxes to AIHS in accordance with any instructions and pursuant to any terms or conditions included in such invoices. You will be responsible for any interest accruing due to missed or late payments at the interest rate specified in the invoice for such missed or late payment(s).
6.2 AIHS reserves the right to charge additional fees for any Secondary Services provided to you at the standard services rate, unless otherwise agreed in writing.
6.3 If fees payable hereunder are not paid accordingly, AIHS reserves the right, in its sole discretion, to limit the functionality of the Licensed Software or your use of the Licensed Software. AIHS further reserves the right, in its sole discretion, to cease providing Services with respect to your account. AIHS bears no responsibility whatsoever for any defects, reduced functionality, or any other problem caused by its cessation of Services pursuant to this Section, or any damages related thereto.
7. PATIENT DATA
7.1 You are the owner of all data entered into the Licensed Software (the “Patient Data”).
7.2 You hereby grant AIHS a non-exclusive, perpetual and fully-paid up worldwide license to access, copy or otherwise utilize the Patient Data for the purposes of providing Primary Services or Secondary Services hereunder.
8. SOFTWARE UPDATES, HARDWARE
8.1 AIHS may from time to time upgrade or create new versions of the Licensed Software and provide you with notifications that such updates are available for download. Further, AIHS may, in its sole discretion, discontinue outdated versions of the Licensed Software, cause outdated software to function exclusively in Read-Only Mode, or cease to provide Services and/or charge additional fees when providing Services for any outdated versions of the Licensed Software. You are responsible for downloading any updates as they become available and you acknowledge that failure to do so may increase the risk of computer viruses, bugs, software failures or other such defects, and may limit the functionality of the Licensed Software or access to new features. AIHS bears no responsibility whatsoever for any defects, reduced functionality or access to new features caused by your failure to download updates, or for any damages related thereto.
8.2 You are solely responsible for the proper use and maintenance of any hardware [including the operating software or other related 3rd party software (the “Hardware”)] on/with which you choose to use the Licensed Software. AIHS bears no responsibility whatsoever for any defects in such Hardware, or any reduced functionality or access to new features caused by outdated Hardware, defects in such Hardware or your failure to properly maintain such Hardware, or for any loss or damages related thereto.
8.3 You are solely responsible for maintaining back-up copies of all Patient Data. You hereby acknowledge that, notwithstanding AIHS’ capability to access, copy and otherwise use Patient Data for the purposes of providing Primary Services and Secondary Services hereunder, AIHS does not retain or store any Patient Data in any permanent form, and AIHS is not able to replace, retrieve or otherwise recover any lost Patient Data, and AIHS is not in any way responsible for any loss of Patient Data.
9.1 AIHS represents and warrants that it has the right to grant the license granted herein for use of the Licensed Software.
9.2 Limited Warranty – AIHS warrants that the Licensed Software supplied hereunder will perform in accordance with the functional specifications as set out in the Related Documentation for 90 days following installation of the Licensed Software or update. AIHS’ sole obligation and liability hereunder will be to use commercially reasonable efforts to remedy any such functional non-conformance which is reported to AIHS in writing by you within the warranty period.
9.3 THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO ANY AND ALL PRODUCTS OR SERVICES (OR PORTIONS THEREOF) PROVIDED HEREUNDER.
10. LIMITATION OF LIABILITY
10.1 IN NO CASE SHALL AIHS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES BASED UPON BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL THEORY. SUCH EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF DATA, LOSS OF REVENUE, LOSS OF USE OF COMPUTER EQUIPMENT OR OTHER HARDWARE, SUBLICENSED SOFTWARE, LICENSED SOFTWARE, OR THE SYSTEM OF WHICH THEY ARE PART, OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME.
10.2 In any event, AIHS’ aggregate liability for damages to you shall not exceed the total fees paid pursuant to this EULA from you to AIHS in the 12 months immediately preceding the first identifiable action or non-action by AIHS that led to such damages.
11. PRIVACY LAWS and INDEMNITY
11.1 You shall only use the License Software in a manner which complies with all applicable privacy laws including the Personal Information Protection Act (British Columbia), the Freedom of Information and Protection of Privacy Act (British Columbia) [FOIPPA], the Personal Information Protection and Electronic Documents Act (Canada), and any similar legislation of any province or territory pertaining to the collection, use, retention, security or disposal of Personal Information, and all rules, regulations, judgments, executive orders and similar mandates of any federal, provincial or local governmental authority arising thereunder, and having jurisdiction over, or application to, the person or situation in question.
11.2 You hereby agree to indemnify and hold AIHS and its officers, directors and contractors harmless from any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys’ fees) arising out of or relating to any use of, or reliance on, the Licensed Software contrary to the terms of this Agreement. In particular, you agree to indemnify and hold AIHS and its officers, directors and contractors harmless from any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys’ fees) arising out of any claim for damages for the unlawful use or disclosure of personal information.
12.1 You acknowledge and agree that the information contained in the Licensed Software is the proprietary and confidential information of AIHS (or another party who has licensed to AIHS), and that the proprietary information is being made available to you by AIHS in confidence.
12.2 Except as expressly permitted by this EULA, you shall not, and you shall cause your employees, agents, attorneys, independent contractors or any other person to whom you disclose such confidential information, whether or not such disclosure is authorized under this EULA, to not disclose, use, copy, distribute, sell, license, publish, reproduce or otherwise make available confidential information of AIHS. You agree that this EULA does not confer any interest in any proprietary or confidential information of AIHS (or another party who has licensed to AIHS). You shall (i) secure and protect AIHS’ confidential information by using the same or greater level of care that you use to protect your own confidential and proprietary information of like kind, but in no event less than a reasonable degree of care, and (ii) advise each of your employees, agents, attorneys, independent contractors or any other person to whom you disclose such confidential information, whether or not such disclosure is authorized under this EULA, of the terms of this Section.
12.3 Notwithstanding the foregoing, you may disclose AIHS confidential information provided under this EULA to the extent required by applicable law or regulation, including without limitation FOIPPA and any other applicable Freedom of Information Act or sunshine law, or by order of a court or other governmental entity, in which case you shall so notify AIHS as soon as practicable and in any event at least thirty (30) days prior to you making such required disclosure.
13.1 This EULA is effective upon any use of the Licensed Software and may be terminated:
(a) immediately, by AIHS, upon the breach of any of terms and conditions of this EULA by you or any of the persons to whom you have authorized to use the Licensed Software under section 4.2; or
(b) upon 120 days prior written notice by either party to the other.
13.2 Upon termination of this EULA, the license granted under section 2 shall immediately be revoked and you will have no further rights to use the Licensed Software or Related Documentation. Upon request by AIHS, you shall immediately destroy or return to AIHS all copies of the Licensed Software and Related Documentation. AIHS has the right to retrieve the Licensed Software from you upon termination of the EULA.
13.3 Upon termination of this EULA, AIHS may, in its sole discretion, permit you to use the Licensed Software in Read-Only Mode solely for the purposes of reading Patient Data. If requested, AIHS shall assist in exporting the Patient Data to another program for a fee.
13.4 If requested by AIHS, you shall provide AIHS with a signed declaration certifying that all copies of the Licensed Software and Related Documentation has been destroyed or returned. Upon termination, you agree that AIHS has no further obligations to you with respect to the Licensed Software, Patient Data or any other data recorded in the Licensed Software, and agree to assume all risk related thereto. Your obligations under section 11 and 12 (Privacy Laws and Indemnity and Confidentiality) survive the termination of this EULA.
14.1 Force Majeure. Neither party hereto shall be responsible for any failure or delay in the performance of any obligation hereunder if such failure or delay is due to a cause beyond the party’s control, including, but not limited to acts of God, flood, fire, volcano, war, third-party suppliers, labour disputes or governmental acts.
14.2 Assignment. You may not assign or transfer the Licensed Software or any rights under this EULA, directly or indirectly, without the prior written consent of the AIHS. [AIHS may upon written notice assign its rights under this EULA to another party.]
14.3 Governing Law. This EULA and performance hereunder shall be governed by and construed in accordance with the laws of British Columbia and Canada applicable therein without reference to choice of law principles.
14.4 Enforceability. If any provision of this EULA is determined to be invalid, void or unenforceable by a court of competent jurisdiction, then such provision shall be deemed severed from this EULA and the remainder of the EULA shall remain in full force and effect and shall be construed without such provision.
14.5 Notices. Any notices or invoices to be sent to you by AIHS shall be delivered by email, fax, Canada Post, courier or other certified mail to the destination listed in your user account, and shall be deemed to be delivered on the date sent. Any Notice given by you in accordance with this EULA shall be delivered by hand or sent by certified mail, return receipt requested to the address first noted above.
14.6 Entire Agreement. This EULA represents the entire agreement with respect to the subject matter herein, and replaces any other agreements, verbal or written, including any previous End User License Agreements between the parties with respect to the Licensed Software.
14.7 This EULA shall be binding upon and enure to the benefit of the parties and their respective successors and permitted assigns.