END USER LICENSE AGREEMENT

IMPORTANT NOTICE

READ BEFORE USING THIS APPLICATION

 

THIS APPLICATION CONTAINS COMPUTER PROGRAMS, DOCUMENTATION, OR OTHER PROPRIETARY MATERIALS THAT ARE OWNED BY OR LICENSED TO ACUSTREAM, LLC ("ACUSTREAM"). IN ORDER FOR YOU TO USE THIS APPLICATION OR THE APPLICATION SERVICES, EITHER YOU, YOUR EMPLOYER, OR THE PERSON OR ENTITY PROVIDING YOU THIS ACCESS (THE "CUSTOMER") MUST HAVE EXECUTED A WRITTEN AGREEMENT WITH ACUSTREAM REGARDING THE USE OF THIS APPLICATION (A "SERVICES AGREEMENT"). YOUR USE OF THIS APPLICATION OR THE APPLICATION SERVICES IS SUBJECT TO THE SERVICES AGREEMENT, AND THE TERMS OF USE SET FORTH HEREIN ("TERMS OF USE"). IN THE EVENT OF AY CONFLICT BETWEEN THESE TERMS OF USE AND THE SERVICES AGREEMENT, THE SERVICES AGREEMENT GOVERNS.

 

1.1     The term "Application" means AcuStream’s proprietary technology used to provide the Application Services. "Application Services" shall mean the services, content and information provided by AcuStream pursuant to and as described in the Master Services Agreement by means of access to the features and functionality of the Application available and accessible through AcuStream’s designated website(s).

 

1.2     Your limited use of the Application Services is subject to and permitted only under the terms and conditions of the Services Agreement, including, without limitation, the confidentiality obligations set forth therein. Only users who have been assigned unique user identification may access the Application Services, and you shall not share or disclose your user identification or password.

 

1.3     You will not use the Application or the Application Services except in compliance with all applicable laws and rules, statutes, and restrictions applicable to the Data and use of the Application and/or Application Services. "Data" shall mean any data, information, medical billing records and/or content, provided by you or CUSTOMER, for use with the Application Services.

 

1.4     Subject to the rights granted in the Services Agreement, AcuStream retains all right, title and interest in and to the Application, and you acknowledges that no additional rights in and to the foregoing are granted.

 

1.5     You acknowledge and agree that (a) AcuStream assumes no responsibility or liability for the accuracy, completeness, propriety, necessity or advisability of the medical information that is provided to AcuStream, or of the medical services to which such information may relate; (b) neither AcuStream nor any AcuStream employee, affiliate, subsidiary, contractor, representative or consulting physician shall have any responsibility of any kind to you, Customer, or any other person, firm, corporation or entity, for verification of any individual's entitlement to medical/health plan coverage or insurance reimbursement or diagnosis, treatment, medical procedures or prescriptions for or with respect to any patient or other provision of direct health care services.

 

1.6     You represent that you shall use the Application Services for internal business purposes of the Customer only, and that neither your use of the Application Services, nor any Data that you provide or otherwise use in conjunction with the Application Services will violate applicable laws or the rights of any third party, including, without limitation, any privacy rights. As between you and AcuStream, you shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all content and data (including, without limitation, Data) associated with its use of the Application Services and AcuStream shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any such content or data.

 

1.7     Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ALL APPLICATION SERVICES PERFORMED BY ACUSTREAM ARE PROVIDED "AS IS," AND ACUSTREAM DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR DATA ACCURACY. ACUSTREAM DOES NOT WARRANT THAT THE APPLICATION OR ANY OTHER APPLICATION SERVICES PROVIDED BY ACUSTREAM WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NOTWITHSTANDING THE PROVISION OF THE SERVICES HEREUNDER, ACUSTREAM MAKES NO DETERMINATION REGARDING MEDICAL CARE OR OTHERWISE ASSUMES ANY RESPONSIBILITY FOR THE SCOPE OR QUALITY OF MEDICAL CARE AFFORDED TO INDIVIDUALS UNDERGOING PROCEDURES. ACUSTREAM EXPRESSLY DISCLAIMS ALL LIABILITY RELATED THERETO.

 

1.8     Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL ACUSTREAM BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ACUSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS OF USE OR THE SERVICES AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF ACUSTREAM FOR ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OF USE OR THE SERVICES AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO ACUSTREAM BY CUSTOMER UNDER SECTION 6.1 OF THE SERVICES AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT, OMISSION, OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS OF USE OR THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

 

1.9     Your use of the Application or Application Services is limited to the term of the Services Agreement ("Term"). These Terms of Use shall immediately terminate upon your or Customer’s breach of these Terms of Use, expiration of the Term or upon termination of the Services Agreement for any reason. All provisions of these Terms of Use shall survive termination. Upon termination, you shall immediately cease all use of the Application and Application Services and all portions thereof.

 

1.10   THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.

 

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