End User License Agreement

IMPORTANT - PLEASE READ CAREFULLY
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND J&H MEDSOFT, LLC, d/b/a DocbookMD (“DocbookMD”) STATING THE TERMS THAT GOVERN YOUR USE OF CERTAIN SMART PHONE and Tablet APPLICATIONS OWNED BY DocbookMD, SPECIFICALLY, THE DocbookMD® APPLICATION. PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE PRESSING THE “AGREE” BUTTON AND CHECKING THE BOX AT THE BOTTOM OF THIS PAGE. BY PRESSING “AGREE” OR DOWNLOADING THE DocbookMD® APPLICATION YOU REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PRESS “CANCEL” AND DO NOT DOWNLOAD ANY DocbookMD® APPLICATION.

THE TERMS OF THIS EULA ARE INTENDED TO SUPPLEMENT THE TERMS OF THE BUSINESS ASSOCIATE AGREEMENT. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS EULA AND ANY PROVISION OF THE BUSINESS ASSOCIATE AGREEMENT, THE BUSINESS ASSOCIATE AGREEMENT SHALL GOVERN.

DocbookMD RESERVES THE RIGHT TO UPDATE THIS AGREEMENT AT ANY TIME BY PUBLISHING THE REVISED AGREEMENT ON THE DocbookMD WEBSITE OR BY PROVIDING NOTICE TO YOU TO BY THE EMAIL ADDRESS YOU HAVE PROVIDED. THE REVISED AGREEMENT SHALL BECOME EFFECTIVE AFTER THIRTY (30) DAYS OF SUCH PUBLICATION OR NOTICE, UNLESS YOU EXPRESSLY ACCEPT THE REVISED AGREEMENT EARLIER BY CLICKING ON THE ACCEPT BUTTON. YOUR EXPRESS ACCEPTANCE OR YOUR CONTINUED USE OF THE DocbookMD® SOFTWARE AFTER THE EXPIRATION OF THE PUBLICATION OR NOTICE PERIOD OF THIRTY (30) DAYS SHALL CONSTITUTE YOUR ACCEPTANCE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE REVISED AGREEMENT.

1.0 Definitions

1.1 The following terms and expressions shall have the following meanings:

Affiliate means any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, DocbookMD. For the purpose of this definition, the word “control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.

Agreement refers to this End User License Agreement, as may be renewed and/or amended from time to time.

Database Content means any and all data licensed to DocbookMD by a Medical Society or other organization in connection with use of the DocbookMD® Software.

Documentation refers to any online or otherwise enclosed documentation provided by DocbookMD.

Effective Date means the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above or upon installation or use of the DocbookMD® Software by You, whichever occurs earlier.

IP Rights means (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, know-how, trade secrets and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights.

Organization refers to the Medical Society or other organization of which You or your sponsoring physician are a member and that has licensed the Database Content to DocbookMD. By agreements between DocbookMD and the Organization and between DocbookMD and other organizations, members of such other organizations may be authorized users in the Database Content and You may be an authorized user of such other organizations’ database content in connection with the DocbookMD® Software.

Password refers to a code You select, which, in combination with the User ID, gives You access to Your User Account.

DocbookMD refers to J&H MedSoft, LLC, d/b/a DocbookMD, a Texas limited liability company, the owner of the DocbookMD® Software and licensor of certain limited rights under this Agreement.

DocbookMD® Software refers the DocbookMD® applications for smart phones and tablet devices (collectively “mobile devices”) owned, developed, and distributed under license agreement by DocbookMD for paging and communication purposes. The DocbookMD® Software contains IP Rights of DocbookMD.

User Account refers to the account with User ID and any Password that You create for Your use of the DocbookMD® Software.

User ID refers to the e-mail address you have chosen to be connected to Your account, which in combination with the Password, gives access to Your User Account.

You means You, the end user of the DocbookMD® Software, also used in the form “Your” where applicable.

1.2 References to the singular include the plural and vice versa, and references to one gender include the other gender.

1.3 Any phrase introduced by the expressions “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2.0 License and Restrictions

2.1 License. Subject to the provisions of this Agreement and payment of all applicable license fees, if any, DocbookMD hereby grants You a limited, personal, non-commercial, nontransferable, nonexclusive, non-sublicensable, non-assignable, license to download, install and use the DocbookMD® Software on Your mobile device during the Term of this Agreement for the sole purpose of personally using the paging and communication applications provided by DocbookMD and any other applications that may be explicitly provided by DocbookMD for communications relating to Your profession as long as You or Your sponsoring physician are a Member of a participating organization.

2.2 No Granting of Rights to Third Parties. You may not sell, assign, transfer, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the DocbookMD® Software or any part thereof.

2.3 No Modifications. You may not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the DocbookMD® Software or any part thereof. You may not remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the DocbookMD® Software.

2.4 Third Parties: The DocbookMD® Software may not be incorporated into software and other technology owned and controlled by third parties. You acknowledge and agree that DocbookMD is not responsible to You for any such third party software or technology and that You will look solely to the applicable third party and not to DocbookMD or its Affiliates to enforce any of your rights.

2.5 Exclusive Ownership. This is a license and not a sale of DocbookMD® Software to You. The DocbookMD® Software and the IP Rights contained therein are owned by DocbookMD and shall remain the exclusive property of DocbookMD. The Database Content is owned by the participating Organization and shall remain the exclusive property of that Organization. Nothing in this Agreement intends to transfer ownership of any IP Rights to You. You are only entitled to the limited use of the DocbookMD® Software in accordance with the rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with DocbookMD’s IP Rights. Any unauthorized use of the DocbookMD® Software or DocbookMD’s IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. All title and IP Rights in and to any third party content that is not contained in the DocbookMD® Software, but may be accessed through use of the DocbookMD® Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws.

2.6 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or DocbookMD’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.

2.7 Collection and Use of Your Information. You acknowledge that when you download, install or use the DocbookMD® Software, DocbookMD may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the DocbookMD® Software. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the DocbookMD® Software or certain of its features or functionality, and the DocbookMD® Software may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with the DocbookMD® Software is subject to our Privacy Policy. By downloading, installing, using and providing information to or through the DocbookMD® Software, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

2.8 Updates to DocbookMD® Software. DocbookMD may from time to time in its sole discretion develop and provide DocbookMD® Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that DocbookMD has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:(a) the DocbookMD® Software will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the DocbookMD® Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the DocbookMD® Software and be subject to all terms and conditions of this Agreement.

2.9 Password Security. When setting up your account, you will be asked to set-up a username and password. It is your responsibility to maintain the confidentiality of your username and password, and you are fully responsible for all activities that occur under your account. If you suspect unauthorized activity or breach of security please notify DocbookMD immediately. DocbookMD cannot and will not be held liable for any loss, damage or other liability arising from your failure to comply with this Section or any other form of unauthorized access to our account.

3.0 DocbookMD Obligations/Disclaimers

3.1 Disclaimer of Warranties. THE DocbookMD® SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. DocbookMD, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE DocbookMD® SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, DocbookMD PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE DocbookMD® SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

3.2 Accuracy of Database Content. The Database Content was created by and is maintained solely by the participating Organization. Although DocbookMD will work with your Organization to strive for the most current and accurate data, it has not verified and will not verify the accuracy or completeness of the Database Content. The accuracy and completeness of the Database Content is entirely the responsibility of the Organization. You understand, therefore, that DocbookMD® Software shall not be liable to You for any errors, omissions or inaccuracies contained in the Database Content.

3.3 Suspension. DocbookMD may, in its sole discretion and to the maximum extent permitted, modify, or discontinue or suspend Your ability to use any version of the DocbookMD® Software, and/or disable any DocbookMD® Software You may already have accessed or installed without any notice to You for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances when You, at DocbookMD’s discretion, are in breach of this Agreement or engaging in fraudulent, immoral or illegal activities, or for other similar reasons. This includes the use of a jailbroken device.

4.0 Your Obligations

4.1 Lawful purposes. You will use the DocbookMD® Software solely for lawful purposes. In this respect You may not, without limitation, (i) intercept, monitor, damage or modify any communication which is not intended for You; (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the DocbookMD® Software or the communication; (iii) send any unsolicited communication not permitted by applicable law; (iv) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way; (v) use the DocbookMD® Software to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; (vi) use any material or content that is subject to any third party proprietary rights, unless you have a license or permission from the owner of such rights; or (vii) violate any applicable law, rule or regulation.

4.2 Representations and Warranties. You represent and warrant that You are authorized to enter into and comply with this Agreement. Furthermore, You represent and warrant that You will at any and all times meet Your obligations under this Agreement, as well as any and all laws, rules, regulations and policies that may apply to the use of the DocbookMD® Software, including but not limited to maintaining the privacy of patient information and other non-public personal information.

4.3 Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS DocbookMD AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OWNERS AND AFFILIATES (“INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITY, LOSSES, DAMAGES, PENALTIES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES. ASSERTED AGAINST OR INCURRED BY THE INDEMNIFIED PARTIES, IN CONNECTION WITH OR ARISING OUT OF YOUR (I) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW, RULE OR REGULATION, WHETHER OR NOT REFERENCED HEREIN; (II) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY; (III) OR UNAUTHORIZED USE OR MISUSE OF THE DocbookMD® SOFTWARE.

4.4 Export Restrictions: DocbookMD® Software may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the software to, or make the software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making DocbookMD® Software available outside the U.S..

4.5 Government Users. The DocbookMD® Software and any documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212 and were created solely at private expense. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the DocbookMD® Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

5.0 Term, Termination, Limitation of Liability

5.1 Term. This Agreement will be effective as of the Effective Date and will remain in effect until terminated by either DocbookMD or You as set out below.

5.2 Termination. You may terminate this Agreement with immediate effect at any time. Without limiting other remedies, DocbookMD may terminate this Agreement, including the license rights granted herein and Your use of DocbookMD® Software, with immediate effect if (i) You are in breach of this Agreement; (ii) the license rights of DocbookMD in the Database Content terminate or expire; or (iii) You or Your sponsoring physician are no longer a Member of the participating Organization. DocbookMD shall effect such termination by preventing Your access to Your User Account.

5.3 Consequences of Termination. Upon termination of this Agreement (i) all licenses and rights to use the DocbookMD® Software shall immediately terminate; (ii) You will immediately cease any and all use of the DocbookMD® Software; and (iii) You will immediately remove the DocbookMD® Software from all mobile devices and destroy all copies of the DocbookMD® Software in Your possession or under Your control.

5.4 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DocbookMD OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE DocbookMD® SOFTWARE OR THE DATABASE CONTENT AND SERVICES FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE DocbookMD® SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR DocbookMD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

6.0 General Provisions

6.1 Partial Invalidity. If any provision of this Agreement, or any part of a provision, is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, and the provision (or part-provision) in question is not of a fundamental nature to this Agreement as a whole, the legality, validity or enforceability of the remainder of this Agreement (including the remainder of the term which contains the relevant provision) shall not be affected.

6.2 No waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If DocbookMD waives a breach of any provision of this Agreement, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.

6.3 Applicable Law, Jurisdiction and Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule of any other State. Any lawsuit, action or proceeding arising out of or related to this Agreement or the DocbookMD® Software shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case located in Austin, Travis County. You consent to, and waive any and all objections to the exercise of personal jurisdiction over you by, such courts and to venue in such courts.

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE DocbookMD® SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO DocbookMD THE RIGHTS SET FORTH HEREIN.