Software License Agreement
IMPORTANT – PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS:
BY ACCEPTING THIS MOBILE PHYSICIAN TECHNOLOGIES, LLC (“MPT”) LICENSE, YOU ARE AGREEING TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD IMMEDIATELY DECLINE ACCEPTANCE BY CLICKING “DISAGREE/DECLINE”, AND CANCEL THE INSTALLATION PROCESS AND WITHIN 10 DAYS FROM PURCHASE, REQUEST A FULL REFUND OF YOUR LICENSE OR SUBSCRIPTION FEE FROM MPT.
1. Grant of License. This MPT License Agreement (the “Agreement”) is a legal agreement between the Client, or the company Client is authorized to represent (“Client”) and Mobile Physician Technologies, LLC. (“MPT”). Subject to Client’s acknowledgment, acceptance and compliance with all terms of this Agreement, MPT grants Client a limited, non-transferable, non-exclusive license to use, in object code form, the “PAR 3 EMR” Electronic Medical Record (“Software”). The grant of rights hereunder to the Software is not a sale of the Software or any portion thereof and does not convey any rights of ownership in the Software. Collectively “MPT Software” includes all accompanying fonts and related documentation manuals, printed or electronic, guides, bulletins, online help, updates, modifications, revisions and enhancements, whether on disk, ‘read only’ memory or any media in any form received by the Client from MPT replacing, supplementing or enhancing the original MPT Software product. Client may own the media on which the MPT Software is recorded but MPT and/or MPT‘s licensor(s) retain ownership of the MPT Software itself. The rights granted to the Client by MPT under the terms of this License do not include any other patents or intellectual property rights and MPT reserves all rights not expressly granted to Client.
2. Permitted License Uses and Restrictions. This License permits Client to a site license to install and use up to 50 installations of MPT Software on systems controlled by the Client at the Client’s site. Client shall only use the Software for Client’s administrative purposes. Client may make copies of the Software in machine-readable form to support site license installations and for backup and archive purposes, provided that all copies include all copyright or other proprietary notices contained on the original software. Client is responsible for all installation and on going maintenance costs associated with installation of Client’s systems and network.
3. Term. The term of this License is perpetual from the date of the execution hereof or until terminated as provided below. This License will automatically renew, annually, as a License Agreement, unless either party provides notification in writing to the other party of its intent not to renew with at least ninety (90) days’ notice. This License and the rights granted hereunder shall automatically terminate with a thirty (30) day written notice by MPT in the event Client neglects or fails to perform or observe any material term or payment obligation set forth in the Agreement after Client has been given a thirty (30) day period to cure. Your rights under this License will terminate automatically without notice from MPT if Client fails to comply with any term(s) of this License. Upon the termination of this License, Client shall cease all use of the MPT Software and destroy all copies, full or partial, of the MPT Software. Client’s obligations hereunder shall survive termination.
6. CPT ® codes – CPT copyright 2016 American Medical Association. All rights reserved. Fee schedules, relative value units, conversion factors and/or related components are not assigned by the AMA, are not part of CPT, and the AMA is not recommending their use. The AMA does not directly or indirectly practice medicine or dispense medical services. The AMA assumes no liability for data contained or not contained herein. CPT is a registered trademark of the American Medical Association.
7. U.S. Government Rights -This product includes CPT which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable, which was developed exclusively at private expense by the American Medical Association, AMA Plaza, 330 N. Wabash Ave., Suite 39300, Chicago, IL 60611-5885. U.S. government rights to use, modify, reproduce,release, perform, display,or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (February 2014) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable, for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (May 2014) and/or subject to the Limited Rights Notice or the Restricted Rights Notice of FAR 52.227-14 (May 2014) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non- Department of Defense Federal procurements.
8. Hardware Specifications. Client will supply at its own expense all supplies and expendables associated or required for use of the Software. Hardware, supplies and other expendables used in conjunction with MPT Software must meet any MPT specifications provided to Client.
9. Limited Warranty.
a. MPT does not represent or warrant that your use of the Software will be uninterrupted or error free. MPT warrants that the Software substantially conforms to the specifications contained in the User’s Guide that was included in the original documentation for a period of sixty (60) days from Client’s purchase, as evidenced by Client’s receipt (the “Limited Warranty Period”). All warranties stated in this Agreement apply only when the Software is used within the United States of America and its territories.
b. During the term of the warranty, Client must notify MPT in writing of any unresolved defect or substantial non-conformity between the Documentation and the Software. Provided MPT is able to replicate and verify that such substantial non-conformity exists, MPT will resolve or correct the Software problem to substantially conform to the specifications. Your sole and exclusive remedy under this Section shall be, at MPT’s sole discretion, a 100% refund of the License purchase price or if purchased through a subscription, a pro-rated refund of the subscription price.
c. There are no warranties that extend beyond the descriptions set forth in agreement and only such warranties are given as expressly set out herein. MPT makes no warranty of merchantability or warranty of suitability for a particular purpose to the client, expressed or implied, by operation of law, statute or otherwise, regarding the services, software and or documentation subject to this agreement, and such warranties are hereby expressly excluded. MPT is not responsible for network, software or hardware integration installed by third parties. No MPT employee, agent or representative, nor any reseller or any other third party is authorized to make any warranty with respect to the Software, except those expressly stated in this License and Client may not rely on any such unauthorized warranty.
10. Limitations of Liability. In no event shall the liability of MPT hereunder, if any, exceed the price paid by Client for the software and/or documentation. MPT shall not be liable to Client for any indirect, special or consequential damages, business interruption or any other commercial damages or losses, arising out of or related to Client’s use or inability to use the Software, however caused, regardless of the theory of liability or lost profits arising out of or related to this License or Client’s use of the Software and/or documentation, even if MPT has been advised of the possibility of such damages. In no event shall MPT, its officers, directors, employees, partners or suppliers be liable to you or any special, punitive, incidental, indirect or consequential damages or losses of any kind, or any damages or losses whatsoever, including those resulting from loss of use, data or profits, whether or not foreseeable, or if MPT has been advised of the possibility of such damages or losses, and on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or any other claim arising out of or in connection with: (1) the access or use of or the inability to access or use the Software or services; (2) the statements or actions of any third party on or via the Software or services; (3) any dealings with vendors or other third parties; (4) any unauthorized access to or alteration of Client Software outputs, user materials or other data; (5) any information that is sent or received or not sent or received; (6) any failure to store or loss of data, files, materials or other content; (7) any services available that are delayed or interrupted; (8) any web site referenced or linked to from this site; or (9) Client access to or use of or inability to access or use any linked site.
11. Disclaimer of Warranties. Client shall assume all risks associated with the use of User Materials including any reliance on the accuracy, completeness or usefulness of User Materials. Client expressly acknowledges and agrees that use of the Software is at Client’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with Client. All CPT billing codes resulting from Software use are ‘suggested’, not ‘guaranteed’; the sole and final decision for accurate CPT code submission, with all its inherent legal, financial, and regulatory agency risks, rests solely with the Client. Except for the limited Warranty on media set forth above and to the maximum extent permitted by applicable law, the Software is provided “as is”, with all faults and without warranty of any kind, and MPT or MPT’s Licensors (collectively referred to as “MPT” for the purposes of sections 7 and 8) hereby disclaim all warranties and conditions with respect to the Software, either express, implied or statutory, including but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose and of accuracy. MPT does not warrant that the functions contained in the Software will meet Client requirements or that the operation of the Software will be compatible with third party software. MPT makes no guarantees as to such third party sites and information, including: the accuracy, currency, content, or quality of any such sites and information, or MPT, its officers, affiliates and subsidiaries shall not, directly or indirectly, be liable, in any way, to you or any other person for the content you receive using the Software or for any inaccuracies, errors in or omissions from the content.
12. Rights of MPT. Client acknowledges and agrees that the Software and/or Documentation are a valuable proprietary right of MPT and agrees that MPT may obtain injunctive relief against Client to enforce the terms and conditions of this License and protect MPT proprietary rights in the Software and/or Documentation. Any unauthorized use, copying or distribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible.
13. Software Maintenance and Customer Support. Replicable Software bugs not related to the Client’s use will be fixed at no charge to the Client for the term of the License. MPT at its sole discretion will periodically provide corrections, upgrades and enhancements to Software in response to regulatory or technological changes, or general improvements to increase the marketability of the Software. MPT will provide telephone support during normal local business hours from its customer support center. Client is responsible for all shipping and handling charges related to Software transactions. The Client shall be responsible for the acquisition costs of maintaining hardware compatible with the Software as it is revised, updated or modified. If the update completely replaces (full install) a previously licensed version of the Software, you may not use both versions of the Software at the same time nor may you transfer them separately.
14. Privacy Notice.
a. The Software, upon registration, securely transmits system identifying information along with user specific registration information to MPT’s servers. This information is used to associate and track system installations along with new user registration information. MPT does not and will not share client personal or system identifying information with any party, unless specifically required by law.
b. In order to meet ONC certification criteria for supporting patient specific educational information, various non-identifying patient information such as age, need to be supplied to the third-party service providing functionality for patient specific educational information.
c. The Software makes use of proprietary sync functionality which securely transmits and receives patient specific health information with MPT servers. The sync process is required to support full ONC certification with various systems. All patient information is securely stored on MPT’s HIPAA compliant servers. Apart from supporting necessary services to meet ONC certification, MPT does not and will not sell or share any patient identification information.
15. Complete Agreement. This License constitutes the entire agreement between the Client and MPT and supersedes all prior agreements or contemporaneous understandings, either oral or written relating to the Software, services or documentation. No amendment to or modification of this License will be binding unless in writing and signed by MPT.
16. Controlling Law and Severability. This Agreement is governed by the laws of the State of Colorado. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License.