IMPORTANT: READ THIS END-USER APP AGREEMENT (“AGREEMENT“) CAREFULLY BEFORE DOWNLOADING OR USING THE PHOTON APP (“APP”). THE APP IS PROPRIETARY TO PHOTON MEDICAL COMMUNICATIONS (“PMC”), AND INSTALLATION AND USE OF THE APP IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY CLICKING ON THE “I ACCEPT” BUTTON DISPLAYED UPON YOUR ACCESS TO ANY VERSION OF THE APP ON ANY GIVEN DEVICE OR PROCEEDING TO USE ANY PART OF THE APP, YOU, AS AN INDIVIDUAL, CONSENT TO BE BOUND BY, AND AGREE TO BECOME A PARTY TO, THIS AGREEMENT.
IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE APP AND MUST "DECLINE" AND DISCONTINUE INSTALLATION OF THE APP AND PROMPTLY DELETE THE APP FROM ALL DEVICES YOU INSTALLED IT ON.
ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. You Represent That You Are An Authorized User. This App may be used only by individuals that are duly authorized by a PMC Customer and/or by PMC. The terms of this Agreement are individual to you, even if you are an employee of a PMC Customer or contracted by that PMC Customer. Accordingly, you represent and warrant that:
(A) each time you access or use the App that you (as an individual) are (i) either a currently Authorized User by PMC or by a PMC Customer whereby in your capacity as a healthcare professional, you are duly authorized to be involved in supporting a PMC Customer's business with the use of Photon; and have been “invited” by that Customer to use the App); and (ii) not employed or contracted by a competitor of PMC; and
(B) prior to viewing patient data, you have been duly authorized and invited by a PMC Customer to access patient data in such PMC Customer’s information network, for your use of any version of the App.
(C) If all of the foregoing in (A) and (B) are satisfied, you are deemed an Authorized User. If you cease to be an Authorized User, then, notwithstanding anything else, your rights to access and use the App will immediately cease.
For the purposes of this Agreement, "App" means the computer program included in the download associated with this Agreement and all documentation, content, and other materials that originate with PMC or its licensors and that are contained in that download or are otherwise downloaded or accessed from use of that computer program. "Customer" means a duly licensed customer of PMC Software.
2. Pursuant to use of the App within PMC’s information network of Authorized Users, or to any PMC Customer License Agreement, this App is licensed, not sold, to you by PMC, and in no event, is the App licensed to you by Customer. As an Authorized User, you authorize PMC to (a) provide a PMC Customer, that has authorized your use of the App in conjunction with accessing such Customer’s patient’s information (invited to participate in their information network),with any information as to your use of the App as it relates to that Customer’s network, that Customer and PMC agree to, with or without notice to you, including, without limitation, information concerning you and your account; and (b) take any action as to your use of the App, including assisting or facilitating remote deletion or disabling of the use of the App in conjunction with that Customer’s information network, as Customer may request or require.
3. Supplemental Restrictions and Limitations. Without limiting the restrictions and limitations in any Customer License Agreement, you, as an Authorized User, shall not (and shall not authorize any third party to): (a) install or use the App on any device, other than the version(s) of the device(s) that you own or control and that are specified as required for the App; (b) sell, rent, lease, lend, or transfer to any third party the App, or ownership of any Device without first deleting the App from the Device; (c) use the App for any purposes other than the purpose for which it was designed; (d) use the App in any way that is not in accordance with any PMC user documentation made available for viewing through use of the App; (e) delegate any rights or obligations under this Agreement to any third party; (f) modify or create derivative works of any portion of the App; (g) attempt to decompile, extract, translate, decrypt, disassemble, or otherwise reverse engineer any object or source code, underlying ideas, or algorithms contained in any portion of the App; (h) permit any third party to access or use the App, otherwise share or distribute any copies of the App to any third party, or otherwise grant or purport to grant any third party any license or other right, title, security or other interest, lien or option in or to the App; (i) remove, alter, add, or obscure any intellectual property or other notice included in the App; (j) use any portion of the App to provide, or to assist in or further the provision of, any data processing, outsourcing, time sharing, or service bureau services, or any other services for the benefit of any third party; or (k) use the App for any unlawful or illegal activity. You shall ensure that each copy of any portion of the App made by or on behalf of you, contains all notices included in the associated original. You shall cooperate with PMC in connection with its efforts to protect its intellectual property and other rights in and to the App.
4. Confidentiality and Security. The App (apart from any information that is or becomes part of the public domain through no improper action by you) constitute Confidential Information (“CI”) of PMC and its licensors, collectively "CI". You acknowledge and agree that the CI contains valuable trade secrets and proprietary information belonging to PMC and its licensors. You shall use the CI only during the term of this Agreement and only as reasonably necessary in using the App for its designed use and otherwise in full compliance with this Agreement. You shall maintain the CI in the strictest confidence. As between you and PMC, you are solely responsible for all use of the App on each Device. You may disclose CI only during the term of this Agreement and only to PMC and other Authorized Users of the same Customer with which you are currently affiliated or employed who have a legitimate "need to know" and only for use as contemplated hereunder. You shall not disclose any CI to any other person or entity. You shall comply with all set up and authentication instructions and procedures contained in the App. You accept responsibility for monitoring all activities using the APP and/or under your account(s) and assume full responsibility for such activities. If you become aware of or suspect any unauthorized use of the App or your associated password(s), device(s), or account, you agree to immediately notify the appropriate PMC or Customer representative. PMC may, at any time, with or without notice, monitor and audit your usage of the App for the purposes of determining compliance with the Agreement and/or providing any support or other services for any Customer.
5. Ownership. As between the parties, subject only to the limited license to the App expressly granted under the Customer License Agreement, PMC shall exclusively own all right, title and interest in and to the App and all copies, portions, improvements, and derivative works thereof, and all copyright rights, patent rights, trademark rights, trade secret rights and all other intellectual property and proprietary rights therein anywhere in the world related thereto.
6. New Versions. From time to time, PMC may advise you to download and install a new version of the App that PMC, in its sole discretion, chooses to make available. Unless otherwise specified by PMC, such new versions will be available for download and installation through various “device related” on-line stores, and, unless otherwise instructed by PMC, you shall promptly download and install and use only the most currently version of the App made available to you. All versions of the App provided to you are subject to the terms and conditions of this Agreement. For clarification, nothing herein obligates PMC to provide you with any such new versions of the App.
7. Support and Training. You shall direct all support and training questions or concerns related to the App to an applicable Customer's designated representative for such support as it relates to your use of the App to access to their information network, and not to PMC directly.
8. Disclaimers of All Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED TO YOU "AS IS" AND ON AN "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION, WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT. PMC DOES NOT WARRANT OR MAKE ANY REPRESENTATION THAT THE FOREGOING ARE ERROR-FREE, THAT THEY WILL FUNCTION WITH AND NOT DAMAGE ANY OTHER SOFTWARE OR HARDWARE OR OPERATE WITHOUT INTERRUPTION, OR REGARDING THE USE OR THE RESULTS OF THE USE OF THE FOREGOING. TO THE EXTENT THAT ANY IMPLIED REPRESENTATION, WARRANTY OR CONDITION CANNOT BE DISCLAIMED UNDER APPLICABLE LAW, THE DURATION OF SUCH REPRESENTATION, WARRANTY OR CONDITION SHALL BE LIMITED TO THIRTY (30) DAYS FROM THE DATE OF RECEIPT OF THE APP BY YOU AND SHALL BE SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT.
No information provided by any representative of PMC shall create any representation, warranty or condition of any kind by PMC or otherwise modify this Agreement. You agree that your access and/or use of the App (and PMC Software) is at your sole risk and that you will be solely responsible for any damage to your computer system or loss of data that results therefrom.
9. Disclaimers of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PMC WILL NOT BE LIABLE TO YOU WITH RESPECT TO THE APP AND/OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY LOST OR CORRUPTED DATA, ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY CHARACTER, OR ANY LOSS OF REVENUE OR PROFITS OR LOST BUSINESS, EVEN IF PMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OF ANY KIND; (III) PERSONAL INJURY OR DEATH CAUSED BY YOUR OR ANY THIRD PARTY'S USE OR MISUSE OF THE APP, PMC SOFTWARE, OR ANYTHING ELSE; AND/OR (IV) AGGREGATE LIABILITY IN EXCESS OF $1 U.S. DOLLAR. ALL OF THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Term and Termination.
(a) Term. This Agreement will become effective on the date you click on the "I Accept" button below or otherwise
use the App for any purpose, and will remain in force until you are no longer an Authorized User by PMC or until
your sole use of the App as an Authorized User in conjunction with a Customer or Customers is otherwise
terminated hereunder.
(b) Termination By PMC.
At any time, PMC may terminate this Agreement or suspend access to or use of the App, with or without notice
to you, (i) if you fail to comply with any provision of this Agreement or are no longer authorized under this
Agreement to use the App, (ii) if PMC becomes aware of or suspects an unauthorized use of the App or your
associated password(s), device(s), or account, (iii) upon termination of a Customer License Agreement and/or the
applicable license(s) thereunder in which your use of the App is in conjunction with, if any of the foregoing occur,
you understand and acknowledge that PMC may, with or without notice to you, advise the applicable Customer of such
occurrence and related information (including, without limitation, information concerning you and your account)
and the Customer, in turn, may, in its sole discretion, decide to remotely deactivate your access to its network.
BY ENTERING THIS AGREEMENT, YOU (I) EXPRESSLY AUTHORIZE PMC TO PROVIDE THE INFORMATION REFERENCED ABOVE TO any
APPLICABLE CUSTOMER AND EXPRESSLY AUTHORIZE PMC DEACTIVATE YOUR USE OF THE APP; AND (II) ACKNOWLEDGE THAT THIS REMEDY
IS A REASONABLE MEASURE TO PROTECT PMC CONFIDENTIAL AND PROPRIETARY SOFTWARE AND INFORMATION FROM UNAUTHORIZED ACCESS,
USE, MODIFICATION OR DISTRIBUTION. Deactivation of the App may result in unanticipated damage to, alteration of or
deletion of viewable data and other content on the associated device(s), AND THAT PMC WILL HAVE NO RESPONSIBILITY
TO YOU OR OTHERS OR ANY LIABILITY WHATSOEVER FOR ANY SUCH DAMAGE, ALTERATION OR DELETION. Immediately upon any
termination of this Agreement, you agree to delete from all of your devices and otherwise cease using and destroy
the original and all copies of the App. This Section 10(b) and Sections 4, 5, 8, 9, and 13, shall survive any
termination of this Agreement.
11. Export and Other Laws. You acknowledge that the App may be subject to United States and any applicable foreign export and import control laws, restrictions, and regulations, including, but not limited to, the U.S. Export Administration Regulations administered by the U.S. Bureau of Industry and Security ("BIS"), and you hereby agree to comply with all such laws. The App complies with data breach laws and industry standards in the United States of America, including but not limited to HIPAA and HITECH.
12. Your Responsibility for Medical Care. As between the parties, you are responsible for all decisions, acts, and omissions of any persons in connection with the delivery of medical care or other services to any patients that you authorize or are otherwise involved with. Before the App is used in connection with the foregoing, it is your responsibility to review and test the App and associated workflows and other content, as implemented, make independent decisions about system settings and configuration based upon your needs, practices, standards and environment, and reach your own independent determination that they are appropriate for such use. Any such use by you will constitute your representation that you have complied with the foregoing. The App is a tool to assist you in the delivery of medical care, but should not be viewed as prescriptive or authoritative, or that these materials alone provide a “diagnostic level quality of information” for diagnoses or substantive clinical decisions. The App is not a substitute for, and you shall apply in conjunction with the use thereof, independent professional medical judgment. The App is not designed for use, and you shall not use them, in any system that provides medical care without the participation of properly trained personnel. Any live production use of the App by you will constitute your acceptance of clinical responsibility for the use of such materials.
13. General Provisions.
(a) Interpretation. You represent that you have read and fully understand this Agreement. No provision shall be construed against a party by reason of the fact that such party or its legal counsel drafted that provision, notwithstanding any rule of law or any legal decision to the contrary. For purposes of interpreting this Agreement, headings contained herein are for convenience of reference only and shall not affect the interpretation of this Agreement and, whenever the context requires, the singular number will include the plural, and vice versa. Nothing in this Agreement shall restrict the right of PMC to engage in any business or provide any software, services, or other products to any third parties on any terms.
(b) Government Use. The App includes "commercial computer software" and related documentation, and is highly proprietary to PMC and its vendors. You shall not receive any ownership, license, or other rights other than those expressly set forth herein, irrespective of (a) whether you represent or are an agency, agent, or other instrumentality of the U.S. Government or any other government body, (b) whether you are entering into or performing under this Agreement in support of a U.S. Government or any other government agreement or utilizing any U.S. Government or any other government funding of any nature, or (c) anything else.
(c) Assignment. You shall not assign or transfer this Agreement to any person or entity and any purported assignment or transfer by you shall be null and void. This Agreement is freely assignable by PMC, in whole or in part. This Agreement shall be binding on the parties and PMC's successors and assigns.
(d) Governing Law and Jurisdiction. This Agreement is to be interpreted under the laws of the United States and the State of Delaware without regard to the conflicts of law rules of Delaware or any other jurisdiction that direct the application of the laws of another jurisdiction. THE PARTIES AGREE THAT NEITHER THE UNIFORM COMPUTER TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM, NOR THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, SHALL APPLY TO THIS AGREEMENT. The sole jurisdiction and venue for any actions related to this Agreement shall be: (i) for actions commenced by you, the state and federal courts located in the State of Delaware; and (ii) for actions commenced by PMC, at the sole option of PMC, either the state and federal courts located in the State of Delaware or any court of competent jurisdiction for the geographic area of your primary residence. The parties waive all objections and defenses to the jurisdiction and venue of such courts, consent to the jurisdiction of such courts, and agree they shall not bring any such action in any other court. The prevailing party in any action brought under this Agreement will be entitled to recover its costs and expenses, including attorneys' fees, incurred in connection with the claim(s) as to which it prevailed.
(e) Entire Agreement. This Agreement, and the Customer License Agreement, constitutes the complete and entire agreement of the parties with respect to its subject matter and supersedes any and all previous communications. No amendment or modification of this Agreement will be binding unless in writing and signed by a duly authorized officer of PMC. The parties' rights to amend or modify this Agreement may be exercised without the consent of any person or entity who is not a party to this Agreement. No failure or delay by PMC in exercising any right, power, or remedy hereunder shall operate as a waiver of any such right, power, or remedy. For the avoidance of doubt, nothing herein terminates or modifies the Customer License Agreement.
(f) Notices. Any notices to PMC under this Agreement shall be sent to PMC’s company contact email address on the PMC web site. PMC may send you notices via the App or to any email address you may have registered with PMC in connection with the App. Each notice shall be deemed given and effective one (1) day after it is sent, or earlier if actually received earlier by the recipient, unless the sending party is notified that the email address is invalid or the transmission was not successful.
(g) Acknowledgment. The parties acknowledge that this Agreement is concluded between PMC and you only.
(h) Other. PMC’s rights and remedies set forth herein are not exclusive, the exercise thereof shall not constitute an election of remedies, and PMC shall in all events be entitled to seek whatever additional remedies may be available in law or in equity. Each party is acting as an independent contractor. In the event that any of the provisions of this Agreement are held to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Subject to the other provisions of this Agreement, if you have separately entered into any agreement with any third party that governs your utilization of any third party wireless and/or other services that are required for the use of the App as authorized herein, you must comply with the terms of each such third party agreement. For clarification, PMC is not responsible for any aspect of any such third party agreement or any of the associated third party services.
(i) User Generated Content. Any material, information, or idea you transmit to or post on any property of Photon, by any means, will be treated as non-confidential and non-proprietary, and may be disseminated or used by Photon or its affiliates for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing its products. Notwithstanding the foregoing, all personal data provided to Photon will be handled in accordance with Photon’s Privacy Policy. You are prohibited from posting or transmitting to or from any Photon property, any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or any other material that could give rise to any civil or criminal liability under the law.
(j) End User Communications. Photon, at any time now or in the future, may allow you and other end users to use any Photon property to express opinions and communicate through comments on products, or other communication facilities that may be offered on or through any Photon property from time to time (collectively “Communities”). In the event of the existence of such Communities, Photon shall have the right, but not the obligation, to monitor the content within the Communities at any time, for any reason, including to determine compliance with this Agreement and any operating rules established by Photon, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, Photon shall also have the right, but not the obligation, to remove any material from the Communities that Photon, in its sole discretion, finds to be in violation of this Agreement or otherwise objectionable. Any opinions, advice, ratings, discussions, comments, or other messages or postings of any kind made by you or any other end user to the Communities are those of the respective author(s) or distributor(s) and not of Photon. By way of example, you shall not take any action or upload, download, post, or submit any communication through any Photon property, which: (i) infringes on the intellectual property rights of any third party; (ii) you know is false, misleading, untruthful, or inaccurate; (iii) is unlawful, threatening, abusive, harassment, defamatory, obscene, vulgar, offensive, profane, or otherwise inappropriate as determined by Photon in its sole discretion; (iv) constitutes unauthorized advertising or spamming, or otherwise involves commercial activities without the consent of Photon; (v) contains software viruses, spamming, manual or automated devices to “crawl” any Photon property, or any other computer files that disrupt any Photon property; (vi) impersonates any person or entity; (vii) violates Photon’s Privacy Policy or otherwise takes any action in violation of Photon’s policies. By posting any materials or other information on or through the Communities, you grant Photon a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display such materials or other information alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights. Any Photon property may contain links maintained by other third parties. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents. We expressly disclaim any representations regarding the content or accuracy of materials or the privacy practices related to such third parties.
(k) Digital Millennium Copyright Act (“DMCA”) Notice. In the event materials are made available to any Photon property by third parties not within our control, we are under no obligation to, and do not, scan such content for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on such Photon property. If you believe any materials on a Photon property infringe a copyright, you should provide us with written notice that at a minimum contains:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a Photon property are covered by a single notification, a representative list of such works at such Photon property;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All DMCA notices should be sent to our designated agent as follows:
Garland Brown
Weiss Brown
6263 North Scottsdale Road, Suite 340
Scottsdale, AZ 85250
It is our policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.