HealthPulse Clinical Portal End-User License Agreement
Please read this agreement in its entirety. This End-User License Agreement (the “Agreement”) sets forth the terms and conditions upon which you may download and use the HealthPulse Clinical Portal software application, related services and all updates, enhancements and upgrades thereto (collectively, the “App”). Any reference to the App in this Agreement includes a reference to any component of the App and any content on or accompanying the App. The terms “you” and “your” refer to you, the user of the App, and the organization on behalf of whom you use the App (“Your Organization”).
The App is provided to you by Audere solely for use in connection with programs for which Your Organization has identified and for which the app is intended to be used and for no other purpose. Audere shall be referred to as the “Solution Provider”.
PLEASE READ THIS AGREEMENT CAREFULLY IN ITS ENTIRETY BEFORE USING THE APP. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE APP. THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT SOLUTION PROVIDER’S LIABILITY TO YOU. BY USING THE APP, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THE PROVISIONS, DISCLOSURES, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE FAIR AND REASONABLE, AND YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THIS AGREEMENT IS VOLUNTARY AND IS NOT THE RESULT OF FRAUD, DURESS, OR UNDUE INFLUENCE EXERCISED UPON YOU BY ANY PERSON OR ENTITY.
1. Definitions
Whenever used in this Agreement, the following terms shall have the meaning set out below:
“Applicable Law” means all applicable laws, statutes, rules and regulations having the effect of law of any international, federal, national, state, provincial, county, city or other political subdivision, agency or other body, domestic or foreign, including any applicable rules, regulations, or other requirements of governmental or regulatory authorities that may be in effect from time to time.
“Confidential Information” means any and all scientific and technical information which is in the possession of, or belonging to, Solution Provider and relating to the App , including without limitation, all trade secrets, know-how, processes, methodologies, samples, components, analyses, compilations, guides and other information or documents prepared by Solution Provider, its respective subsidiaries and affiliates and/or their officers, agents, representatives, employees or advisers which contain or are otherwise generated from or reflect any Solution Provider proprietary information, whether or not covered by intellectual property rights or explicitly designated as confidential or proprietary, which is disclosed by any means in written, oral, electronic, or any other form.
2. License
Subject to the terms of this Agreement, Solution Provider grants you a limited, non-exclusive, revocable, non-transferable license to install and use the App.
a. Your use of the App is subject to the terms outlined in this Agreement as well as any additional terms and policies outlined in the HealthPulse Clinical Portal Privacy Policy.
b. Except for the license granted herein, Solution Provider grants no express or implied right to you under any patent, copyright, mask work right, trademark, know-how or other intellectual property rights. You shall not obtain any rights to Solution Provider’s property, or any part thereof, by implication, estoppel or otherwise, other than in terms of the rights contained in this agreement. Title to and full ownership of any trade secrets and other intellectual property rights related to the App shall remain with Solution Provider and, if applicable, its suppliers. For clarification, you agree that the source code for the App is a trade secret of Solution Provider and only Solution Provider shall have the right to alter, maintain, enhance or otherwise modify the App.
c. Without limiting the foregoing or any other terms in this Agreement, You shall:
i. only use the App in compliance with all Applicable Law;
ii. only use the App if your organization has authorized you to use the App and stop using the App as soon as your organization no longer authorizes you to use the App or if you are no longer employed by or otherwise associated with such organization;
iii. not copy, export or produce any derivative works from the App, or any part thereof;
iv. not sell, attempt to sell or transfer, sublicense, or encumber the App or any aspect or part of the App;
v. not modify the App in any way, combine it with other programs, reverse engineer, screen scrape, decompile or disassemble the App, or otherwise attempt to create or derive the source code related thereto;
vi. not infringe on any patent, trademark, trade secret, copyright or other proprietary rights of the Solution Provider or in connection with your use of the App;
vii. not deface or remove any copyright or proprietary notices in the App;
viii. not use the App without the access code, if provided with the App, or attempt to develop or develop any means or technology which would enable you to bypass the use of the access code to operate the App;
ix. prevent anyone other than you or another user whom your organization has authorized to use the App from accessing or using the App;
d. Notwithstanding anything else contained in this Agreement, in no event shall you use the App and/or Confidential Information to enable, support, or otherwise aid you or a third party in developing any product, software or service competitive with any of Solution Provider’s products.
e. Solution Provider reserves the right to embed a software security mechanism within the App to monitor usage of the App to verify your compliance with this Agreement, as well as to control access to the App through use of license administration software.
3. Collected Data and Feedback
a. No Patient Information. If not prompted, you shall not input, upload or furnish any personally identifiable information about any individual other than yourself to or through the App or otherwise disclose any such personally identifiable information to Solution Provider. For example, you must not disclose the name, address, contact information, birthdate, or government-issued identification number of any individual on whom you leverage the App.
b. App Usage Data. You agree that the Solution Provider may collect and use technical data regarding your device and usage of the App, including but not limited to technical information about the App that is gathered periodically to facilitate the provision of software updates, App support and other services related to the App such as feature usage and run times (“App Usage Data”).
c. App Feedback. If you have comments regarding the App or ideas on how to improve it (“Feedback”), please note that by providing Feedback to Solution Provider, you also assign, and hereby assign, all right, title, and interest worldwide in Feedback to Solution Provider and agree to assist Solution Provider, at Solution Provider’s expense, in perfecting and enforcing Solution Providers’ rights thereto and ownership thereof. You acknowledge and agree that the Solution Provider may use and incorporate Feedback into the App or for other business purposes without compensation and without restriction.
d. Use of App Usage Data and Feedback. You acknowledge and agree that Solution Provider may freely use Feedback and App Usage Data, at its sole discretion, for the design, development, improvement, marketing and commercialization of its products and services, without any restrictions based on confidentiality or intellectual property rights.
4. Medical Advice and Treatment
The App does not provide medical advice, diagnosis, or treatment. You acknowledge and agree that, as between you and Solution Provider, you are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of all medical services, advice, instructions, treatment decisions, and other professional health care services performed. You agree that all diagnoses, treatments, procedures, and other professional health care services will be provided and performed exclusively by or under the supervision of healthcare professionals as they, in their sole discretion, deem appropriate. You further acknowledge and agree that Solution Provider does not provide or endorse nor does it purport to provide or endorse any medical advice or services on or through the App and no information obtained through the App can be so construed or used as such.
5. Proprietary Rights
The App and the content made available to you on or through the App, including, without limitation, all content, text, graphics, icons and images, and all intellectual property rights therein and any suggestions, ideas or other feedback provided by you are the sole and exclusive property of Solution Provider or its service or content providers and are protected by U.S. and foreign intellectual property laws. The App and related content contain proprietary and confidential information that is protected under U.S. and international intellectual property laws, including copyright, trademarks, service marks, patents or other proprietary rights and laws. The compilation of all of the content on the App is also the exclusive property of Solution Provider and is protected by U.S. and foreign intellectual property laws. Except as expressly authorized by Service Provider, you may not use, sell, modify, reproduce, redistribute, decompile, reverse engineer, create derivative works, or otherwise exploit information provided to you through the App, in whole or in part. Certain names, logos, brand or other materials displayed in and through the App may constitute trademarks, trade names, service marks or logos (“Trademarks”) of Solution Provider, its affiliates or partners. You may not use such Trademarks without the prior written permission of Solution Provider or its affiliates or partners, as applicable.
6. Representations and Warranties
In addition to the other representations and warranties contained in this Agreement, you further represent, warrant, and covenant to Solution Provider the following:
a. All information you provide to Solution Provider will be truthful, accurate and complete, irrespective of any independent verification or other determination made by Solution Provider;
b. You, your practice, and all goods and services provided in connection with your use of the App will comply with all Applicable Laws;
c. You are legally authorized in accordance with Applicable Law to provide any and all information that you provide to the App for all uses contemplated under this Agreement;
d. This Agreement has been duly and validly authorized, accepted, agreed to, and delivered by you or your authorized representative and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with this Agreement;
e. You have full power, capacity and authority and have obtained the necessary consents where applicable to enter into this Agreement;
f. The performance by you of this Agreement and your use of the App does not and will not conflict with or violate (i) any Applicable Law, or (ii) if you are an entity, any provision of your organizational or governing documents; and
g. You will not knowingly prevent the normal functioning of the App.
7. Non-disclosure
a. You agree to keep this Agreement and all Confidential Information obtained hereunder in strict confidence, and shall only disclose same (i) to other users whom your organization has authorized to use the App as necessary to provide medical care to patients, provided that such access to the App conforms, at all times, to this Agreement, or (ii) if required to be disclosed by law, and only to the extent of such disclosure and limited to the purpose requested, with prior notice to the Solution Provider to permit it to seek an appropriate remedy to prevent the disclosure, or alternatively to agree to the terms of such disclosure.
b. The obligations of confidentiality, use and non-disclosure referred to in this Section 6 shall not apply to information which: (i) is or becomes publicly available through no fault of yours; (ii) was already in your rightful possession prior to its receipt from Solution Provider; (iii) is independently developed by you, provided it is not, in whole or in part, related to the App; and (iv) is obtained by you in good faith and on a non-confidential basis and without a use restriction from a third party who lawfully obtained and disclosed such information. However, Confidential Information does not come within the foregoing exceptions merely because features of it may be found separately or within a general disclosure in the public domain.
c. You agree to be responsible for enforcing the terms of this Section 6 and to take such action, legal or otherwise, to the extent necessary to cause anyone having access to the Confidential Information to comply with the terms and conditions set forth herein (including all actions that you would take to protect your own trade secrets and confidential information but with not less than reasonable care). You shall be responsible and indemnify, defend and hold harmless Solution Provider fully for any default caused by any such persons.
8. Third-Party Software
The App may come bundled or otherwise be distributed with open source or other third-party software, which is subject to the terms and conditions of the specific license under which it is distributed. Portions of such open source or other third-party software are copyrighted and licensed by their respective owners. If any such open source or other third-party software requires that end users be provided with any copyright notices or copies of licenses or other legal notices, such notices and licenses are provided in the Legal Notices addendum that follows this document or that appears in a Legal Notices menu item in the App or both. OPEN SOURCE SOFTWARE IS PROVIDED BY SOLUTION PROVIDER "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE SOFTWARE, SOLUTION PROVIDER SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Third-Party Websites
This App may contain links to other independent third-party websites (“Linked Websites”). These Linked Websites are provided solely as a convenience. Such Linked Websites are not under the control of Solution Provider, and Solution Provider is not responsible for and does not endorse the content of such Linked Websites, including any information or materials contained on such Linked Websites. Solution Provider does not have any responsibility or liability for any information, data, communications or materials available on such third-party sites. You therefore access these Linked Websites at your own risk.
10. Warranties
THE APP, AND ANY THIRD-PARTY TECHNOLOGY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COURSE OF DEALING, USAGE, OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SOLUTION PROVIDER, ITS LICENSORS, AND SUPPLIERS MAKE NO WARRANTY, REPRESENTATION, OR GUARANTY: (a) AS TO THE SEQUENCE, ACCURACY, TIMELINESS, RELEVANCE, OR COMPLETENESS OF THE APP; (b) AS TO ANY INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE APP REGARDING TREATMENT OF MEDICAL CONDITIONS, ACTIONS, DIAGNOSES, PROCEDURES, APPLICATION OF MEDICATION, OR OTHER PROVISION OF HEALTHCARE SERVICES; (c) THAT THE APP MAY BE RELIED UPON FOR ANY REASON, (d) THAT THE USE OF THE APP WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, YOUR USE OF THE APP, AND ANY THIRD-PARTY TECHNOLOGY IS AT YOUR OWN RISK.
SOLUTION PROVIDER DOES NOT WARRANT THAT THE APP OR THIRD-PARTY TECHNOLOGY WILL MEET YOUR SPECIFIC REQUIREMENTS. TO THE EXTENT THAT SOLUTION PROVIDER MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
11. Limitation of Liability
IN NO EVENT WILL SOLUTION PROVIDER BE LIABLE FOR ANY LOSS OF USE, LOSS OF PROFIT, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SOLUTION PROVIDER HAS BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SOLUTION PROVIDER’S LIABILITY TO YOU FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF THE PURCHASE PRICE OF THE APP YOU HAVE PURCHASED FROM SOLUTION PROVIDER WITHIN THE PAST 30 DAYS.
12. Indemnification
YOU WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS SOLUTION PROVIDER, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES ARISING FROM OR ATTRIBUTABLE TO (a) YOUR PROVISION OF MEDICAL SERVICES AND TREATMENT OF PATIENTS IN CONNECTION WITH YOUR USE OF THE APP OR OTHERWISE; (b) YOUR BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THIS AGREEMENT; (c) ANY CLAIMS BY OR DISPUTES RELATED TO YOUR USE OF THE APP ; (d) ANY CONTENT YOU PROVIDE TO THE APP OR OTHERWISE TRANSMIT USING THE APP; AND (e) BREACH OF CONFIDENTIALITY RELATED TO YOUR USE OF THE APP.
13. Term and Termination
This Agreement shall become effective as of the date of your first use of the App and shall remain in effect until terminated as provided hereafter:
a. This Agreement terminates immediately upon termination of the agreement between the Solution Provider and your organization.
b. This Agreement terminates immediately once your organization no longer authorizes you to use the App or you are no longer employed by or associated with such organization.
c. The Solution Provider may terminate this Agreement immediately, upon written notice, should you (i) attempt to, directly or indirectly, assign or transfer any of the rights granted to you pursuant to this Agreement without Solution Provider’s prior written authorization, (ii) disclose, in whole or in part, any Confidential Information in contravention of this Agreement, (iii) use the App otherwise than as authorized herein, or (iv) are otherwise in breach of your obligations under this Agreement.
d. Upon termination of this Agreement, you agree to immediately discontinue use of the Confidential Information and the App, and to return the same to the Solution Provider as well as any copies in your possession.
e. The following shall survive and continue in full force and effect notwithstanding any termination of this Agreement: your obligations under Sections 2 (License), 5 (Representations and Warranties), 6 (Non-Disclosure), 10 (Limitation of Liability), 11 (Indemnification); as well as any other clauses which by their nature and context are intended to survive.
14. Miscellaneous
a. Entire Agreement. This Agreement and any other terms of use or other guidelines provided by Solution Provider through or in connection with the App contain the entire understanding of the parties with respect to the subject matter of this Agreement and supersede all previous verbal and written agreements between the parties concerning the subject matter of this Agreement. To the extent that any other terms conflict with any provision of this Agreement, this Agreement will control. The App is the property of Solution Provider. Solution Provider reserves the right to change, add or remove portions of this Agreement or the App at any time and at its sole discretion. Your continued use of the App following the posting or delivery to you of any changes means that you accept and agree to such changes.
b. Governing Law. The terms of this Agreement will be governed by and construed in accordance with the laws of the State of Washington without regard to such state’s conflict of law provisions.
c. Injunctive Relief. Each party agrees that a violation of the licenses granted by such party, or intellectual property rights, may cause irreparable harm to such party for which monetary damages alone would be inadequate, and that in the event of any such violation such party will be entitled to seek injunctive and equitable relief in addition to any other remedies.
d. Government Users. If you are a U.S. Government agency, you agree that the App constitutes a commercial item that has been developed at private expense and not under a Government contract. Government rights relating to the App are limited to those rights applicable to you under this Agreement, which is binding on government users in accordance with Federal Acquisition Regulation 48 C.F.R. Section 12.212 for non-defense agencies and/or Defense FAR Supplement 48 C.F.R. Section 227.7202-1 for defense agencies.
e. Notices. All notices will be delivered in writing to the Solution Provider at the respective address designated below. Delivery will be by hand; by certified or registered mail postage prepaid/return receipt requested; by overnight courier; or by email. All notices will be deemed delivered on the date of actual receipt.
Audere
1191 2nd Ave, Suite 450
Seattle, WA 98101
f. Export Laws. The App and other deliverables provided or licensed under this Agreement are subject to U.S. export jurisdiction. You will comply with all applicable domestic and international export laws and regulations as well as Applicable Law. Without limiting the generality of the foregoing, neither the App nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U. S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the App, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you agree to comply with all Applicable Law that may impact your right to import, export or use the App, and represent that you have complied with any regulations or registration procedures required by Applicable Law to make this license enforceable.
g. No Waiver. No omission or delay by either party at any time to enforce a right or remedy reserved to it or to require performance of any of the terms of this Agreement at the times designated, shall be a waiver of such right or remedy to which the party is entitled, nor shall it in any way affect the right of the party to subsequently enforce such provisions.
h. Modification. No provision of this Agreement shall be deemed waived, amended or modified by either party unless the waiver, amendment or modification is in writing and signed by each of the parties to this Agreement.
i. Severability. If any one or more of the provisions of this Agreement is for any reason held invalid, illegal or unenforceable, the remaining provisions of this Agreement will be unimpaired.
j. Interpretation. Words denoting the singular include the plural and vice-versa. Headings are for convenience only and do not affect interpretation. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
15. General
When translated into other languages, the English version of the Terms of Use and Privacy Policy will hold precedent.
16. Legal notices
All legal notices can be found at www.healthpulsenow.org/healthpulse/legal-notices
Effective Date: January 2025