IMPORTANT - PLEASE READ CAREFULLY
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND J&H MEDSOFT, LLC ("J&H MEDSOFT") STATING THE TERMS THAT GOVERN YOUR USE OF CERTAIN APPLE IPHONE(r) AND SMART PHONE PDA APPLICATIONS OWNED BY J&H MEDSOFT, SPECIFICALLY, DOCBOOKMD(tm) 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(tm) APPLICATION YOU ARE AGREEING 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(tm) APPLICATION.
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, J&H MedSoft. 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 J&H MedSoft by Medical Society in connection with use of the J&H MedSoft Software.
Documentation refers to any online or otherwise enclosed documentation provided by J&H MedSoft.
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 J&H MedSoft 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.
Medical Society refers to the Medical Society of which You are a member and that has licensed the Database Content to J&H MedSoft. By agreements between J&H MedSoft and Medical Society and between J&H MedSoft and other medical societies, members of such other medical societies may be authorized users in the Database Content and You may be an authorized user of such other medical societies' database content in connection with the J&H MedSoft Software.
Password refers to a code You select, which, in combination with the User ID, gives You access to Your User Account.
J&H MedSoft refers to J&H MedSoft, LLC, a Texas limited liability company, the owner of the J&H MedSoft Software and licensor of certain limited rights under this Agreement.
J&H MedSoft Software refers the DocBookMD(tm) applications for Apple iPhone(r) or other smart phones and personal digital assistants (collectively "PDAs") owned, developed, and distributed under license agreement by J&H MedSoft for paging and communication purposes. The J&H MedSoft Software contains IP Rights of J&H MedSoft.
User Account refers to the account with User ID and any Password that You create for Your use of the J&H MedSoft Software.
User ID refers to an identification code You are assigned by J&H MedSoft, which in combination with the Password, gives access to Your User Account.
You means You, the end user of the J&H MedSoft 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 license fees, J&H MedSoft hereby grants You a limited, personal, non-commercial, nontransferable, nonexclusive, non-sublicensable, non-assignable, license during the Term to download, install and use the J&H MedSoft Software on Your PDA during the Term of this Agreement for the sole purpose of personally using the paging and communication applications provided by J&H MedSoft and any other applications that may be explicitly provided by J&H MedSoft for communications relating to Your profession as long as you are a Member in good standing with the Medical Society.
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 J&H MedSoft 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 J&H MedSoft Software or any part thereof.
2.4 Third Parties: The J&H MedSoft Software may not be incorporated into software and other technology owned and controlled by third parties. You acknowledge and agree that J&H MedSoft 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 J&H MedSoft or its Affiliates to enforce any of your rights.
2.5 Exclusive Ownership. This is a license and not a sale of J&H MedSoft Software to You. The J&H MedSoft Software and the IP Rights contained therein are owned by J&H MedSoft and shall remain the exclusive property of J&H MedSoft. The Database Content is owned by Medical Society and shall remain the exclusive property of Medical Society. Nothing in this Agreement intends to transfer ownership of any IP Rights to You. You are only entitled to the limited use of the J&H MedSoft Software in accordance with the rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with J&H MedSoft's IP Rights. Any unauthorized use of the J&H MedSoft Software or J&H'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 J&H MedSoft Software, but may be accessed through use of the J&H MedSoft 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 J&H MedSoft's rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
3.0 J&H Obligations
3.1 No Warranties. Installing J&H MedSoft Software enables You to communicate with other people. J&H MedSoft cannot guarantee that You will always be able to communicate with other people, nor can J&H MedSoft guarantee that You can communicate without disruptions, delays or communication-related flaws or that all Your communications will be secure and always will be delivered to the people for whom the communication is intended.
3.2 Accuracy of Database Content. The Database Content was created by and is maintained by solely by Medical Society. J&H MedSoft 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 Medical Society. You understand, therefore, that J&H MedSoft Software shall not be liable to You for any errors, omissions or inaccuracies contained in the Database Content or the J&H MedSoft Software. You use the J&H MedSoft Software at Your own risk.
3.3 Suspension. J&H MedSoft may, in its sole discretion and to the maximum extent permitted, modify, or discontinue or suspend Your ability to use any version of the J&H MedSoft Software, and/or disable any J&H MedSoft 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 J&H MedSoft's discretion, are in breach of this Agreement or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
4.0 Your Obligations
4.1 Lawful purposes. You will use the J&H MedSoft 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 J&H MedSoft 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 J&H MedSoft 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 J&H MedSoft 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 J&H MEDSOFT AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES INCURRED BY SUCH 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, OR (III) USE OR MISUSE OF THE J&H MEDSOFT SOFTWARE; OR (IV) IMPROPER USE OF THE J&H MEDSOFT SOFTWARE.
4.4 Export Restrictions: J&H MedSoft Software may be subject to United States laws that govern the export of software. You shall comply with all applicable U.S. laws that apply to the J&H MedSoft Software. J&H MedSoft is making this software available to You for download only on the condition that You certify that You are not such a person or entity and that the download is not otherwise in violation of U.S. export control and sanctions regulations.
4.5 Government Users. The J&H MedSoft 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. Any use, duplication or disclosure of the J&H MedSoft Software or the documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
5.0 Term, Termination, Updates
5.1 Term. This Agreement will be effective as of the Effective Date and will remain effective for one (1) year following the Effective Date, unless earlier terminated by either J&H MedSoft or You as set out below. The Term may be renewed for one or more additional one-year terms upon payment of the applicable license fee established by J&H MedSoft.
5.2 Termination. You may terminate this Agreement with immediate effect at any time. Without limiting other remedies, J&H MedSoft may terminate this Agreement, including the license rights granted herein and Your use of J&H MedSoft Software, with immediate effect if (i) You are in breach of this Agreement; (ii) Medical Society terminates the license rights of J&H MedSoft in the Database Content; or (iii) You are no longer a Member in good standing with the Medical Society. J&H MedSoft shall effect such termination by preventing Your access to Your User Account and endeavoring to notify You of the termination through the email address You have provided.
5.3 Consequences of Termination. Upon termination of this Agreement (i) all licenses and rights to use the J&H MedSoft Software shall immediately terminate; (ii) You will immediately cease any and all use of the J&H MedSoft Software; and (iii) You will immediately remove the J&H MedSoft Software from all PDAs and destroy all copies of the J&H MedSoft Software in Your possession or under Your control.
5.4 New Versions. J&H MedSoft reserves the right to change this Agreement at any time by publishing the revised Agreement on the J&H MedSoft Website or by providing notice to You to 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 J&H MedSoft 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.
6.0 Disclaimer of Warranties and Limitation of Liability
6.1 No Warranties. THE J&H MEDSOFT SOFTWARE IS PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER. ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, ARE HEREBY DISCLIAMED. J&H MEDSOFT DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORILY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE J&H MEDSOFT SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. J&H MEDSOFT FURTHER DOES NOT REPRESENT OR WARRANT THAT THE J&H MEDSOFT SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT DATA LOSS, NOR DOES J&H MEDSOFT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF COMMUNICATIONS MADE THROUGH THE J&H MEDSOFT SOFTWARE.
6.2 Specific Disclaimer of Liability for Emergency Situations. NEITHER J&H MEDSOFT NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY TO USE THE J&H MEDSOFT SOFTWARE IN EMERGENCY SITUATIONS OR TO CONTACT EMERGENCY SERVICES.
6.3 Your Own Risk. You acknowledge and agree that the entire risk arising out of Your use of the J&H MedSoft Software remains with You, to the maximum extent permitted by law.
6.4 Disclaimer of Damages. IN NO EVENT SHALL J&H MEDSOFT, ITS AFFILIATES AND ITS LICENSORS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR (I) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE J&H MEDSOFT SOFTWARE; (II) ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE THE J&H MEDSOFT SOFTWARE; (III) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING THE J&H MEDSOFT SOFTWARE; (IV) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY J&H MEDSOFT FOR ANY REASON; OR (V) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE J&H MEDSOFT SOFTWARE TO YOU. THESE LIMITATIONS ON J&H MEDSOFT'S LIABILITY TO YOU SHALL APPLY WHETHER OR NOT J&H MEDSOFT, ITS AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
6.5 Damages Limitation. IN NO EVENT SHALL THE LIABILITY J&H MEDSOFT, ITS AFFILIATES AND ITS LICENSORS EXCEED TWICE THE AMOUNT OF LICENSE FEES PAID BY YOU UNDER THIS AGREEMENT.
7.0 General Provisions
7.1 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and J&H MedSoft with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
7.2 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.
7.3 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 J&H MedSoft 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.
7.4 Assignment. You are not allowed to assign this Agreement or any rights hereunder. J&H MedSoft is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
7.5 Applicable Law, Jurisdiction and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas. The state and federal courts in Travis County, Texas shall have exclusive jurisdiction and venue of all actions relating to this Agreement, and the parties consent to the jurisdiction and venue of 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 J&H MEDSOFT SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO J&H MEDSOFT THE RIGHTS SET FORTH HEREIN.
(c) J&H MedSoft, LLC ( November 2011)
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