This Agreement (“Agreement”) sets forth the terms and conditions upon which you may download and use the Digital Intern Insulin Educator application, related services, and all updates, enhancements and upgrades (collectively, “App”). The App is created and maintained by Integrated Vital Medical Dynamics, LLC, a Wisconsin limited liability company (“iVMD”).
PLEASE READ THIS AGREEMENT CAREFULLY IN ITS ENTIRETY BEFORE USING THE APP. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT DO NOT USE THE APP. THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT iVMD’s LIABILITY TO YOU. YOU MUST ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT PRIOR TO USE OF THE APP. ADDITIONALLY, 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 ENTINITY.
The terms of this Agreement will govern the App and any software updates, enhancements, and upgrades that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. You agree to comply with all terms, conditions, and restrictions set forth in this Agreement. You acknowledge that any use of the App not in compliance with this Agreement invalidates this license and may be prosecuted to the full extent of the law. By downloading and using this App, you represent and warrant that you are at least 18 years old.
- Grant of License and Reservations. Subject to the terms of this Agreement, iVMD grants you a limited, non-exclusive, revocable, non-transferable license to install and use the App and any future fixes, updates, and upgrades provided to you solely for use for your education and training. This App is licensed, not sold, to you by iVMD for use only under the terms of this Agreement. iVMD reserves all rights not expressly granted to you. The rights granted in this Agreement are limited to iVMD’s intellectual property rights in the App and do not include any other patnets or intellectual property rights. You may own the media on which the App is stored, but iVMD retains ownership of the App itself.
- iVMD may provide updates (including automatic updates) for this application as and when we see fit. This may include upgrades, modifications, bug fixes, patches, changes to the algorithm or user interface, other error corrections, new features, and/ or removal of features (collectively “Updates”). Updates may be required in order for the application to function. You acknowledge and agree that the application may not work properly if you do not allow Updates and you expressly consent to automatic Updates. Further, you agree that these terms and any additional modifications of the same will apply to any and all Updates to the application. We may change, suspend, or discontinue any or all of the application’s features
- Reverse Engineering. Except as expressly set forth in this Agreement, you agree not to reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies, create derivative works from, distribute or provide others with the App, in whole or in part, or transmit or communicate the app over a network to any third party. You agree not to lease, loan, sublicense, distribute, or otherwise provide others access to or with any aspect of the App, except as expressly permitted in this Agreement. Further, you agree not to develop, sell, or distribute applications that are capable of launching, being launched from, or are otherwise integrated with, the App or content accessed through the App without iVMD’s express written permission.
- Educational Purpose. This App is for educational and training purposes only. You agree not to enter, use, transmit, access, or communicate any information or data that is protected under the Health Insurance Portability and Accountability Act of 1996 as modified by the Health Information Technology for Economic and Clinical Health Act and all rules, regulations, and related laws and acts promulgated under and in connection therewith (collectively “HIPAA”), under similar more stringent state laws, or under a contractual or fiduciary relationship. You agree not to use the App in connection with your provision of medical care to patients, yourself, or anyone else.
- Further Restrictions. You further agree to not use the App to do the following:
- Infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
- Transmit or communicate any data that contains software viruses or any other computer code, files, web addresses, or programs designed, intended, or likely to interrupt, destroy, or limit the functionality of any computer software or hardware or any telecommunications equipment;
- Interfere with, disrupt, or circumvent the App;
- Intentionally or unintentionally violate any applicable local, state, national, or international law;
- Transmit or communicate any data that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- Use the App while driving;
- Endanger yourself or others;
- If you are a practicing medical professional, impair your ability to provide medical treatment at the standard of care (without using the App which, as stated elsewhere in the Agreement, is not intended for use in provision of medical treatment).
- Medical Advice and Treatment. The App does not provide medical advice, diagnosis, or treatment. Recommendations displayed in the App are based on iVMD’s Knowledge Base which you may access and evaluate through the “(i)” link in the Application or at this web address:ivmedicaldynamics.com/knowledge-baseYou agree you will not use this app in conjunction with the practice of medicine including medical practice that is illegal, unauthorized, or unlicensed. If you are a medical professional, you acknowledge that you will continue to rely on your own training, experience, and judgment when treating patients.
- Patient Data. The App is not intended to store data related to patients or patient care. As the App is not to be used in conjunction with the practice of medicine, only data pertaining to training scenarios should be entered, not data pertaining to any real patients or humans. You acknowledge and agree that the App is not designed to secure patient data and you will not enter any such data.
- Authorized Use. Except as expressly set forth in this Agreement, you will protect the confidentiality of the App, and will not distribute or otherwise make available the App, or any portion of the App, in any form including screenshots, to any third party. Any rights you may possess in the App expire upon expiration or termination of this Agreement. You will employ the security measures necessary to prevent unauthorized users from accessing the App including your user ID(s) and password(s) for the App and any devices on which you have installed the App. You are solely responsible for the maintenance and protection of your mobile device and access to the App on any device on which you have installed the App. You accept responsibility for, and will be liable for all access to the App in connection with your user information. Without the prior written consent of iVMD, you will not utilize the services of any third party to assist you in using the App. Further, you will be responsible for all activities that occur under or in connection with your user information and your use of the App.
- Export Law Assurances. You will not use or otherwise export or re-export this App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App will not be exported or re-exported (1) into (or to a national or resident of) any U.S. embargoed countries, or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons’ List or Entity List. By using the App, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
- Presently, the App is available to residents of the United States only. You understand and acknowledge that you may not sign up for, access or attempt to access or use the App from countries outside the United States. iVMD may use technology to verify compliance. You agree to abide by United States and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.
- Trademarks, service marks, graphics and logos used in connection with the App are the trademarks of their owners. iVMDTM, Digital InternTM,and the trademarks related to the App are trademarks of iVMD and/ or its owners. You are not granted any right or license with respect to any of the trademarks mentioned above and any use of such trademarks.
- Copyright Infringement. iVMD respects copyright and other laws. iVMD requires all App users to comply with copyright and other laws. iVMD does not, by the supply of the App, authorize you to infringe the copyright or other rights of iVMD or third parties. As a condition to use the App, you agree that you must not use the App to infringe upon the intellectual property or other rights of iVMD or others in any way. The unauthorized reproduction, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of copyright. You are entirely responsible for your conduct and for ensuring that it complies with all applicable copyright and data-protection laws. In the event you fail to comply with laws regarding copyrights or other intellectual property rights, data protection and privacy, you may be exposed to civil and criminal liability, including possible fines and jail time.
- Ownership and Title. All title to and the rights in the App, including ownership or licensing rights to patents (registrations, renewals, and pending applications), copyrights, trademarks, service marks, domain names, trade dress, trade secrets, iVMD’s or third party other technology, and derivatives of and all goodwill associated with the foregoing is the exclusive property of iVMD and/ or third parties.
- Representations and Warranties. In addition to the other representations and warranties contained in this Agreement, you further represent, warrant, and covenant to iVMD the following:
- 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. You represent that you have full power, capacity and authority to enter into this Agreement. If you are accepting on behalf of your employer or an entity, you represent that you have full legal authority to bind your employer or such entity to this Agreement; and
- The performance by you of this Agreement and your use of the App does not and will not conflict with or violate (1) any law, rule, regulation, order, judgement, decree, agreement, instrument, ethical standard, or obligation applicable to you, and (2) if you are an entity, any provision of your organizational or governing documents.
- Disclaimer of Warranties. THE APP AND ANY THIRD PARTY TECHNOLOGY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO 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. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, iVMD, ITS LICENSORS, AND SUPPLIERS MAKE NO WARRANTY, REPRESENTATION, OR GUARANTY:
- AS TO THE SEQUENCE, ACCURACY, TIMELINESS, RELEVANCE, OR COMPLETENESS OF THE APP;
- 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
- THAT THE APP MAY BE RELIED UPON FOR ANY REASON, 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. iVMD DOES NOT WARRANT THAT APP OR THIRD PARTY TECHNOLOGY WILL MEET YOUR SPECIFC REQUIREMENTS. TO THE EXTENT THAT iVMD 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.
- Limitation of Liability. EXCEPT WHERE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL iVMD BE LIABLE TO YOU OR ANY OTHER PERSON FOR DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, COSTS, EXPENSES OR LOSSES OR LOST PROFITS IN CONNECTION WITH THE APP OR OTHERWISE RELATED TO THIS AGREEMENT. THE PROVISIONS OF THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. iVMD WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT BECAUSE OF CIRCUMSTANCES BEYOND ITS CONTROL, WHICH CIRCUMSTANCES INCLUDE NATURAL DISASTER, TERRORISM, THIRD PARTY LABOR DISPUTES, WAR DECLARATIONS OF GOVERNMENTS, TRANSPORTATION DELAYS, FAILURE OF HARDWARE, EQUIPMENT, OR TELECOMMUNICATIONS FAILURE. iVMD WILL NOT BE LIABLE FOR ANY FAILURE TO PERFORMS ITS OBLIGATIONS UNDER THIS AGREEMENT BECAUSE OF MISUSE OF THE APP BY YOU OR ANY OTHER PERSON. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IN THE EVENT THAT ANY EXCLUSIVE REMEDY PROVIDED HAS FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, IN NO EVENT WILL iVMD BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF ANY USE OR MISUSE OF ANY THIRD PARTY TECHNOLOGY. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. IN NO EVEN SHALL THE LIABILITY OF iVMD FOR ANY LOSS RELATED TO USE OR INABILITY TO USE THE APP EXCEED $2.00 U.S.
- Indemnification. YOU WILL INDEMNIFY, DEFEND, AND HOLD INDEMNITEES (AS DEFINED BELOW) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES ARISING FROM OR ATTRIBUTABLE TO (1) YOUR BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER AGREEMENTS MADE UNDER THIS AGREEMENT; (2) ANY CLAIMS BY OR DISPUTES RELATED TO YOUR USE OF THE APP; (3) ANY CONTENT YOU PROVIDE TO THE APP OR OTHERWISE TRANSMIT USING THE APP; AND (4) BREACH OF CONFIDENTIALITY RELATED TO YOUR USE OF THE APP.
- The indemnitee will give you written notice of any Claim for which indemnification is sought. However, failure to provide such notice will not relieve you from your liability or obligations under this Agreement, except to the extent you are materially prejudiced as a direct result of such failure. The Indemnitee will cooperate with you at your expense in connection with the defense and settlement of the Claim. You may not settle any indemnified Claim in a manner that adversely affects the Indemnitee without its prior written consent. Further, the Indemnitee may participate in the defense of the Claim through counsel of its own choosing at its own cost and expense. If you fail to promptly assume the defense and employ counsel reasonably satisfactory to Indemnitee, or the Indemnitee has been advised by counsel that there exist actual or potential conflicting interests between you or your counsel and such Indemnitee, the Indemnitee may employ separate counsel, in addition to local counsel, to represent or defend such Indemnitee in such action or proceeding, and you agree to pay the fees and disbursements of such separate counsel as incurred. To the extent indemnification requires the payment of monies owed, such indemnification will occur as soon as reasonably possible after the determination of monies owed, and payment to the Indemnitee will be made within 30 days of a final determination of monies owed. Your obligations under this Section are in addition to any rights that any Indemnitee may have at common law or otherwise.
- Defined Terms. “Claim means each and every claim, request, accusation, allegation, assertion, complaint, petition, demand, suit, action, proceeding, and cause of action of every kind and description. “Indemnitee” means iVMD, its affiliates, and its and their respective officers, directors, shareholders, managers, members, agents, employees, representatives, successors, and assigns. “Loss” means each and every liability, loss, damage, and injury (including injury or damage to any property right, and injury, damage, or death to any Person), wound, wrong, hurt, harm, expense, deficiency, diminution in value, obligation, expenditure and disbursement of any kind or nature (including all fees, costs, and expenses of investigation, travel expenses, and value of time expended by personnel), settlement, fine, fee, cost, cost of court, and all expenses of litigation (including reasonable attorney’s fees) incident to any of the foregoing.
- Term. Unless otherwise terminated by iVMD as provided for in this Agreement, this Agreement will remain in effect for so long as iVMD licenses the use of the App to you.
- Termination. iVMD may, in its sole discretion and without prior notice, terminate your access to the App for violations of this Agreement or other Agreements or guidelines, which may be associated with your use of the App, or if iVMD deems it necessary in its sole discretion. In any such event, you must destroy all copies of the App and all of its component parts. Failure to abide by this Agreement is a material breach of this Agreement for which iVMD may pursue all rights and remedies it has pursuant to this Agreement, and any other rights and remedies it may have at law or in equity. You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice and will cause irreparable harm to iVMD, for which monetary damages would be inadequate, and you consent to iVMD obtaining any injunctive or equitable relief that iVMD deems necessary or appropriate in such circumstances without the need to post a bond or satisfy any similar requirements. These remedies are in addition to any other remedies iVMD may have at law or in equity.
- General Provisions.
- This Agreement and any rights or obligations in this Agreement will not be assigned by you without the prior written consent of iVMD. Any attempt to assign or transfer this Agreement other than in accordance with this provision will be null and void. Subject to the forgoing, this Agreement and its terms and provisions inure to the benefit of and are binding upon the parties and their respective successors, heirs, personal representatives, and assigns.
- Governing Law. You agree that all matters relating to you access to or use of the App, including all disputes, will be governed by the laws of the United States and by the laws of the State of Wisconsin without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Dane County, Wisconsin and waive any objection to such jurisdiction or venue.
- Waiver of Trial by Jury. EXCEPT WHERE PROHIBITED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
- All notices, requests, or consents sent to iVMD that are required or permitted under this Agreement must be in writing (including electronic form) and must be delivered to the address designated below in a notice served in the manner provided for below. Each notice, request, consent, or other communication will be given and will be effective: (1) if delivered by hand when so delivered; (2) if delivered by nationally recognized courier service or sent by United States Express Mail, upon confirmation of delivery; (3) if delivered by certified or registered mail, on the third following day after deposit with the Units States Postal Service; or (4) if delivered by email, upon confirmation of receipt by the other party in writing by return email.iVMD1002 Deming Way Ste 110
Madison, WI 53717
- Captions and Heading. The captions and headings of this Agreement are inserted for reference and convenience and do not define, limit, or describe the scope or intent of this Agreement or any particular section, paragraph, or provision of this Agreement. Unless otherwise expressly provided, the words “includes”, “included” or “including” do not limit the preceding words or terms.
- The failure or delay of iVMD to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision.
- All provisions which must survive in order to give effect to their meaning will survive any expiration or termination of this Agreement, including without limitation, all of your representations, warranties, and indemnification obligations, which will survive any expiration or termination of this Agreement indefinitely.