End-User License Agreement
THE ITRANSPLANT SOFTWARE AND MOBILE APPLICATION (COLLECTIVELY, THE “ITRANSPLANT PRODUCTS”) ARE MADE AVAILABLE BY TRANSPLANT CONNECT, INC. (“TC,” “WE” OR “US”) FOR DOWNLOADING AND/OR USE ONLY BY DULY-AUTHORIZED MEDICAL PROFESSIONALS OR OTHER INDIVIDUALS WHO ARE LAWFULLY EMPLOYED WITHIN THE FIELD OF ORGAN, TISSUE, EYE, AND/OR BIOLOGICS DONATION, TRANSPLANTATION, AND/OR RESEARCH AND WHO ARE AUTHORIZED TO ACCESS AND USE THE ITRANSPLANT PRODUCTS BY THEIR RESPECTIVE EMPLOYER AND IN THEIR RESPECTIVE WORKING CAPACITY. IF THIS DOES NOT DESCRIBE YOU, YOU MAY NOT CLICK THE “I AGREE” BUTTON AND YOU MAY NOT CONTINUE TO INSTALL, DOWNLOAD, ACCESS OR USE THE ITRANSPLANT PRODUCTS.
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE INSTALLING, DOWNLOADING, ACCESSING OR USING THE ITRANSPLANT PRODUCTS. BY INSTALLING, DOWNLOADING, ACCESSING OR USING THE ITRANSPLANT PRODUCTS, OR BY CLICKING TO ACCEPT AND AGREE TO THE EULA, YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO ANY OF THESE TERMS, DO NOT INSTALL, DOWNLOAD, ACCESS OR USE THE ITRANSPLANT PRODUCTS AND DELETE ALL SUCH ITRANSPLANT PRODUCTS IMMEDIATELY FROM ALL YOUR DEVICES.
UNLESS YOU OPT OUT OF ARBITRATION WITHIN THIRTY (30) DAYS AFTER YOU FIRST AGREE TO THIS EULA BY FOLLOWING THE OPT-OUT PROCEDURES SPECIFIED IN THE ARBITRATION TERMS PROVIDED IN SECTION 23 BELOW, AND EXCEPT FOR CERTAIN TYPES OF CLAIMS DESCRIBED IN SECTION 23 BELOW, YOU AGREE THAT ANY AND ALL DISPUTES AND CLAIMS BETWEEN YOU AND TC OR ANY OF ITS AFFILIATES, INCLUDING WITHOUT LIMITATION DISPUTES OR CLAIMS RELATED TO THIS EULA AND/OR YOUR USE OF THE ITRANSPLANT PRODUCTS WILL BE RESOLVED BY THE DISPUTE RESOLUTION TERMS PROVIDED IN SECTION 23 BELOW, INCLUDING BINDING, INDIVIDUAL ARBITRATION UNDER THE JUDICIAL ARBITRATION AND MEDIATION SERVICES STREAMLINED ARBITRATION RULES AND PROCEDURES EXCLUSIVELY IN LOS ANGELES, CALIFORNIA, AND YOU HEREBY EXPRESSLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE AGAINST TC OR ANY OF ITS AFFILIATES, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
1. Limited License to Use the iTransplant Products. In consideration for your compliance with this EULA and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, TC grants to you as an end user (“You”) a limited, revocable, non-exclusive, non-transferable and non-sublicensable license to install, download, access and/or use the iTransplant Products on authorized devices owned or otherwise controlled by you exclusively for your internal business purposes (“License”) during the EULA Term (defined in Section 4 below) and in strict accordance with all terms, conditions, and restrictions in this EULA, any applicable Enterprise Agreement and/or Access Agreement (as defined in Section 2 below), and any other associated documentation provided to you by TC. Other than the granting of the License to use the iTransplant Products, you acknowledge and agree that all rights not expressly granted hereunder are reserved by TC and you do not acquire any other rights to or ownership interest in the iTransplant Products or any intellectual property rights therein, whatsoever.
2. Authorization. You represent and warrant that you are of legal contracting age in the jurisdiction in which you reside and have legal capacity to enter into this EULA as a binding contract. If TC, on the one hand, and Subscriber and/or Subscriber’s employer, on the other hand, have a fully-executed agreement software and services agreement, inclusive of amendments and/or statements of work executed thereunder (collectively, “Enterprise Agreement”) and/or access and use agreement (“Access Agreement”) in place to govern access and use of the iTransplant Products either alone or together with use of an iTransplant Enterprise System or other software system provided by TC, then the iTransplant Products are limited to the services, features, and functionalities specified in the applicable Enterprise Agreement and/or applicable Access Agreement, and if any of the provisions of this EULA conflict with any provisions of the Enterprise Agreement and/or the Access Agreement, the terms of the Enterprise Agreement and/or Access Agreement shall supersede and control. If no fully-executed Enterprise Agreement or Access Agreement exists between TC and Subscriber and/or Subscriber’s employer, then the iTransplant Products include only those services TC elects to provide, in its sole and absolute discretion, via its free (but limited) services.
3. Enterprise Accounts. All entities (“Subscribers”) that are not already our clients with their own iTransplant Enterprise System and who desire to have three (3) or more employees use the iTransplant Products will, after an initial free trial period as determined by us, be required to enter into an Enterprise Agreement with TC and pay all applicable fees and charges as a condition to use of the iTransplant Products before their users can access and use the iTransplant Products. A paid subscription to the iTransplant Products as provided in an Enterprise Agreement with TC will entitle the Subscriber’s applicable authorized users (“Authorized Users”) to the level of support set forth in such Enterprise Agreement, which will include access to training information and a defined level of support thereafter. Additional support, implementation and professional services may be purchased by Subscriber pursuant to a written instrument prepared by TC and executed by the parties and will be subject to this EULA.
5. Accessing the iTransplant Products and Account Security. To access the iTransplant Products or some of the resources or services such iTransplant Products offer, you may be required to complete a user registration and provide certain registration details, information regarding your TC account or the services provided to you by the iTransplant Products, or other information. It is an express condition of your use of the iTransplant Products, and you represent and warrant, that all the information you provide to TC or in connection with the iTransplant Products is correct, current, and complete, including without limitation, user information, changes in personnel, up-to-date contact information. You acknowledge and agree that the iTransplant Products may be inaccessible or inoperable from time to time due to maintenance, upgrades, hardware or software malfunctions or failures, Internet or other telecommunications issues, system or network congestion, third party attacks or other issues and we shall have no liability with respect thereto. While we work to protect the availability and security of the iTransplant Products, your account and related information, we cannot guarantee that the iTransplant Products will be available for use at all times or that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account by emailing us at [iTxSupport@invitahealth.com.]
6. Passwords. You agree to treat all passwords and login information as strictly confidential, and not disclose them to any other person or entity. Your TC account is personal to you and agree not to provide any other person with access to the iTransplant Products or any portion of it using your account, username, password, or other security information. You agree to notify TC immediately of any access to your account or use of your username or password by anyone other than yourself, or any other breach of security. You also agree to make sure that you exit from your account at the end of every single session using the iTransplant Products and use the utmost caution when accessing your account from a public or shared device so that others are not able to view, access, record or store your password or other account, security, or any other personal or confidential information. You agree to accept responsibility for all activities that occur on your account or with your password. We reserve the right to take all action, as we deem necessary or reasonable to maintain the security of the iTransplant Products and your account, including without limitation, suspending access to or use of your account, terminating your account, changing your password, or requesting additional information to authorize transactions on your account. While we take prudent steps to protect your account, we cannot protect your information outside of the iTransplant Products. For example, when we communicate with you via unencrypted email from time to time at your request and/or consent, the communication is not secure, is not stored securely, and the information contained may be viewed by others. You acknowledge that by requesting information by email, you agree that we may transmit it to you from time to time and store it in an unencrypted form and manner. We may rely on the authority of anyone accessing your account or using your password, and in no event will we be liable to you or any third party for any liability or damage resulting from or arising out of: (i) any action or inaction by us under this provision; (ii) any compromise of the confidentiality of your account or password, (iii) any unauthorized access to your account or use of your password; and (iv) any action or inaction by us regarding your access to and use of the iTransplant Products.
7. Geographic Restrictions. The iTransplant Products are strictly limited to access and use only by persons located within the United States and Canada. You acknowledge and agree that you may not be able to access the iTransplant Products outside of the United States and Canada and that access to the iTransplant Products may be legally prohibited within certain countries. If you access the iTransplant Products from outside the United States or Canada, you are responsible for compliance with local laws and you do so at your own sole risk.
8. U.S. Government Rights. The iTransplant Products are commercial computer software, as defined in 48 C.F.R. §2.101. As such, in accordance with 48 C.F.R. §12.212, if you are an agency of the U.S. Government or any contractor of the U.S. Government, you receive only those rights granted under the License to all other end-users with respect to the iTransplant Products.
9. Authorized Scope of Use; Prohibited Uses and Restrictions. Your use of the iTransplant Products is strictly and exclusively limited to internal business use for the purpose of directly facilitating, coordinating, collaborating, and streamlining the process of organ, tissue, and/or eye donation, transplantation, and research in connection with your authorized working capacity as a medical professional or other individual lawfully employed in the field of organ, tissue, eye, and/or biologics donation, transplantation, and/or research (“Authorized Scope”). The License is granted to you only upon the express conditions listed below. You must:
- Not use the iTransplant Products for any use beyond the Authorized Scope;
- Use the iTransplant Products in accordance with all applicable laws and regulations, including, for greater certainty, all applicable health information protection laws, and not use the iTransplant Products to promote, assist, or engage in any way with an act or activity that violates any applicable laws or regulations, or infringes upon any legal rights (including the rights of publicity and privacy) of TC or others;
- Not use the iTransplant Products for any deceptive purpose, including without limitation, impersonating or attempting to impersonate another user, person, or entity, misrepresenting your identity or affiliation with any person or organization (including, for example, using e-mail addresses associated with another user, person or entity), giving the impression that you emanate from or are endorsed by TC or any other person or entity when that is not the case (including, for example, modifying any website to falsely imply that you are associated with TC), collecting information about others without being authorized to do so, or harassing, abusing, stalking, threatening, or defaming any person or entity.
- Not remove, delete, alter, or obscure any trademark, copyright, patent or other intellectual property or proprietary rights notices or any other notices in connection to the iTransplant Products, including any copies thereof;
- Not remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security featured in or protecting the iTransplant Products, or otherwise breach or attempt to breach the security of the iTransplant Products;
- Not interfere with or disrupt (whether by use of any device, software, routine or otherwise) any part of the iTransplant Products, or any server, computer or database in connection to the iTransplant Products, impose an unreasonable burden on the iTransplant Products or network, or use the iTransplant Products in any manner that could disable, overburden, damage, or impair the iTransplant Products or otherwise restrict or inhibit anyone’s use or enjoyment of the iTransplant Products, including but not limited to the user’s ability to engage in real-time activities using the iTransplant Products (including, for example, the messaging system or tracking system);
- Not introduce any viruses, trojan horses, bugs, worms, logic bombs, or any other computer code or material of a destructive, malicious, or technologically harmful, or that may otherwise harm a network, computer, server, hardware, software or telephone equipment in connection to the iTransplant Products, or attack the iTransplant Products via a denial-of-service attack or a distributed denial-of-service attack;
- Not alter, modify, translate, adapt, reverse engineer, decode, decompile, disassemble, or hack the iTransplant Products, merge the iTransplant Products with any other software, use any manual process, automatic device (including but not limited to, data mining, robots, spiders, which are strictly prohibited) or other data gathering or extraction methods to monitor or copy any of the content on the iTransplant Products, or otherwise use any means to attempt to derive or gain access to the source code for the iTransplant Products or any part thereof;
- Not create derivative works, modifications or improvements to the iTransplant Products (whether or not patentable), or reproduce, make copies, rent, loan, sell, or distribute any derivative works of the iTransplant Products;
- Not sell, resell, rent, lease, lend, distribute, sublicense, assign, publish, transfer, or otherwise make available the iTransplant Products to any unauthorized person or entity for any reason, including but not limited to permitting another individual to use your TC account or making the iTransplant Products available on a network where it is capable of being accessed by more than one device at a time;
- Not, directly or indirectly, export, re-export or release the iTransplant Products to, or make the iTransplant Products accessible from any jurisdiction or country outside of the U.S. or Canada;
- Not offer to any other person or entity any software and/or services, whether for cash compensation or otherwise, similar or competitive in any manner to any of the software and/or services provided by TC, including but not limited to consulting, reporting, and/or other software services that provide for data entry, information management, communications, documentation, decision-support, reporting and/or analytics relating in any way to any aspect(s) of the business of eye and/or tissue banking, organ or other deceased human biologics donation, transplantation and/or research, without first obtaining written consent of TC, which TC may grant or withhold at TC’s sole discretion;
- Not use the iTransplant Products to create, transmit, or distribute any advertising or promotional materials, unwanted email, “junk email”, “bulk email”, “chain letter”, “spam” or other content that includes any solicitation whatsoever;
- Not use the iTransplant Products to convey Personal Information (including individually identifiable health information) of any third person other than as strictly required in connection with the Authorized Scope; and
- Not help or enable others to violate any of the provisions of this EULA.
10. Content Standards. iTransplant Products are intended to allow for the secure transmission of messages between and among users of the iTransplant Products, along with other features and functionalities, to facilitate, coordinate, collaborate, and streamline the processes involved in organ, tissue, and eye donation and transplantation. Without limiting the foregoing, your use of and communications through the iTransplant Products must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, illegal, inflammatory or otherwise objectionable;
- Promote violence, sexually explicit or pornographic material, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; or
- Cause annoyance, inconvenience, needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
12. Third-Party Content. The iTransplant Products may display, include, or make available content (including but not limited to data, information, statements, opinions, articles, images, applications and/or other products, services and/or materials) provided by third parties (including but not limited to third-party transport companies, third-party licensors, syndicators, aggregators and/or reporting services, or other users), or provide links to third-party websites, webpages or services, including through third-party advertising (“Third-Party Content”). All statements and opinions expressed in any Third-Party Content do not necessarily reflect the views of TC and are solely the responsibility of the third parties providing such content. You acknowledge and agree that TC will have no liability or responsibility whatsoever to you (or any other person or entity) for any Third-Party Content, including without limitation, their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of any Third-Party Content. Third-Party Content and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to the respective terms and conditions of the third parties providing them. We cannot guarantee that such third-party services or content will be free of malware, or other malicious code that may harm your computer, mobile device, or any files therein. We disclaim any responsibility or liability related to your access or use of, or inability to access and use, such third-party services or content and you agree that we shall have no liability with respect thereto.
13. Contact Sharing. You may desire to work with other Subscribers’ Authorized Users and other Subscribers’ Authorized Users may desire to work with you. To facilitate collaboration between and among Subscribers and their Authorized Users, and notwithstanding anything to the contrary in any other document, you hereby give TC permission to share with other Subscribers and their Authorized Users your name, phone number, email address, Organization ID number, job title and the department for which you work at your applicable organization (“Contact Details”) as well as permission to share with you the Contact Details of other Subscribers and their Authorized Users. Subscribers and their Authorized Users are required to strictly protect the confidentiality of all Contact Details of other Subscribers with the same level of protection as required for Confidential Information in Section 18 below.
16. Usage Data. TC may monitor, collect, use and store usage data, metadata and other anonymous aggregate data relating to use of the iTransplant Products (“Usage Data”). TC owns all title, rights, and interest, including but not limited to any applicable intellectual property and proprietary rights, in and to all Usage Data.
18. Confidential Information. “Confidential Information” means any non-public data, information and other content regarding the products, software, services, prices, discounts or business of TC, including the iTransplant Products, and may also include third party information that is required to be kept confidential, and as between TC and you, constitutes TC’s valuable intellectual property owned solely by TC, and you shall not have any title to or ownership of any Confidential Information. Any information marked or otherwise communicated as being “proprietary”, “confidential” or the like, and any information that , by its nature, should be reasonably considered to be confidential or proprietary will be deemed Confidential Information. You agree to treat all Confidential Information (as defined in this section) as confidential regardless of whether it is identified as “confidential” or “proprietary”, regardless of form or format, and regardless of how or when it was created or provided to you. Notwithstanding the foregoing, Confidential Information does not include information which: (a) becomes publicly available without any fault or knowledge on your part or on the part of the applicable Subscriber; (b) is approved for release by written authorization from TC; (c) is independently developed or created by you without accessing, referencing and/or using any Confidential Information whatsoever, as evidenced by substantiating documentation of independent development; or (d) is expressly required to be disclosed by applicable law or governmental regulation, provided that the receiving party provides reasonable advance written notice to TC of such required disclosure to the extent permitted by law, and reasonably cooperates with TC in limiting such disclosure to the minimum necessary to comply with any such disclosure requirement. More specifically, Confidential Information includes but is not limited to, the iTransplant Products and all aspects, elements and contents thereof including without limitation, all versions, derivatives, interfaces, processes, workflows, product roadmaps, concepts, functionalities, code, data, Web UI, databases, data structures, reports, attachments, communications, design, software, source code, object code, intellectual property, underlying technologies, technical information, tools, research and development, analyses, work product, ideas of TC, as well as discussions and plans for potential future features and functionalities. Confidential Information also includes all information, content, and data relating to hosting, security, performance, benchmark results, infrastructure, training, maintenance, enhancements, modifications, Updates, customizations, best practice upgrades, elective features and other services and/or products of TC as well as the existence, pricing and terms of any Enterprise Agreement, Access Agreement, or any other agreement, amendments or statements of work between TC, on the one hand, and Subscriber or you, on the other hand. Confidential Information also includes any and all documentation, specifications, information relating to Confidential Information or the iTransplant Products regardless of who created such items, and/or any communications between or among any of the parties hereto in any way relating to Confidential Information. Confidential Information also includes data and information created in, uploaded to and/or stored in the iTransplant Products, whether or not exportable from the iTransplant Products, as well as any replication data, Usage Data, data dictionaries, and other material and/or data created by or from the iTransplant Products, excluding only Subscriber Data as defined in Section 15. Confidential Information also includes any and all copies, notes and/or derivations of any Confidential Information and all ideas and/or information that may derive, directly or indirectly, from any of Confidential Information. Moreover, under all circumstances and at all times except as expressly authorized in this EULA, you agree to: (i) limit your use of Confidential Information only to perform obligations or exercise rights granted to you hereunder; (ii) hold all Confidential Information in strict confidence and protect all Confidential Information with the highest degree of care no less than that with which Subscriber protects its own proprietary information, but in no case with less than reasonable care; (iii) not make any statements, inferences or implications regarding any Confidential Information to any person or entity; and (iv) not copy or reproduce all or any part of any Confidential Information in any medium.
19. Intellectual Property. All information (excluding Subscriber Data and individually identifiable health information) and materials available through and/or contained in the iTransplant Products, including without limitation the iTransplant Products’ software code (including object code and source code), documentation, contents, data structures, screen displays, text, graphic, logos, button icons, scripts, page headers and all other audible, visual or downloadable materials, as well as the selection, organization, coordination, compilation and overall look and feel of the iTransplant Products are the intellectual property of TC and/or its affiliates or licensors. Copyright © 2022 Transplant Connect, Inc. and/or its affiliates or licensors. All rights reserved. None of the content of the iTransplant Products may be copied, downloaded, transmitted or otherwise be reproduced, disseminated or exploited in any form or manner without the express prior written permission of TC. The information and materials are protected by copyright and other intellectual property laws and all ownership rights remain with TC, its affiliates or licensors, as applicable. TRANSPLANT CONNECT, TC and the TRANSPLANT CONNECT logo, (2) ITRANSPLANT, ITX and the ITX LOGO and ITRANSPLANT LOGO are all trademarks of TC or its affiliates. All rights not expressly granted herein are reserved. No interest or right to use any such trademarks is acquired by using the iTransplant Products. The iTransplant Products may also contain trademarks owned by various third parties. Nothing contained in the iTransplant Products or in this EULA serves to grant to you, by implication or otherwise, any license or right to use any trademarks or intellectual property rights without the prior written permission of TC. You agree not to infringe any patent, trademark, trade secret, copyright, or other intellectual property, proprietary or other rights of TC and to comply at all times with all regulations and laws applicable to any Confidential Information and TC intellectual property.
20. Indemnification. You agree to indemnify, hold harmless, and defend TC and its affiliates and its and their officers, directors, shareholders, predecessors, successors in interest and assigns, employees, contractors, agents, representatives, licensors and suppliers (each, a “TC Indemnified Party” and collectively, the “TC Indemnified Parties”) from and against any and all claims, charges, actions, complaints, damages, losses, deficiencies, liabilities, judgments, settlements, interest, awards, penalties, fines, costs and expenses of any kind whatsoever (including attorneys’ fees and experts’ fees) due to, arising out of, or relating in any way to your use of or access to the iTransplant Products, any breach of your representations, warranties and/or obligations under this EULA, any violation of any applicable laws or legal requirements by you or any other act or omission by you. Furthermore, you agree that TC assumes no responsibility and shall not be liable whatsoever for any of the content or Subscriber Data you submit, transmit, or make available through the iTransplant Products. TC may participate in the defense and settlement of any claim for which any of the Indemnified Parties are entitled to indemnification with its own legal counsel. Notwithstanding the foregoing, you shall not settle any such claim, suit or proceeding without the written consent of the applicable TC Indemnified Parties. As used in this EULA, “affiliate” means any person or entity directly or indirectly controlling or having the power to control, or controlled by or being under common control with another person or entity. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of such party, whether through ownership or stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists.
21. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT USE OF THE ITRANSPLANT PRODUCTS IS AT YOUR OWN SOLE RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU ALONE. THE ITRANSPLANT PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITH NO WARRANTIES OF ANY KIND WHATSOEVER, AND TC, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE ITRANSPLANT PRODUCTS, INCLUDING, WITHOUT LIMITATION ANY AND ALL EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, AND INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TC OR ANY OF ITS REPRESENTATIVES CREATES ANY WARRANTY OF ANY KIND. TC DOES NOT WARRANT: (A) THAT THE FEATURES AND FUNCTIONALITIES CONTAINED IN OR PERFORMED BY THE ITRANSPLANT PRODUCTS WILL MEET YOUR REQUIREMENTS OR PERFORMANCE AND RELIABILITY STANDARDS, OR WILL ACHIEVE ANY INTENDED RESULTS; (B) THAT THE OPERATION OF THE ITRANSPLANT PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE ITRANSPLANT PRODUCTS WILL BE CORRECTED; (C) THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE; (D) THE ACCURACY, COMPLETENESS, QUALITY, PERFORMANCE OR USEFULNESS OF ANY INFORMATION PRESENTED ON OR THROUGH THE ITRANSPLANT PRODUCTS AND ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN SOLE RISK; OR (E) THAT THE ITRANSPLANT PRODUCTS WILL BE COMPATIBLE WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES.
The iTransplant Products are dependent upon a number of factors outside TC’s control (including but not limited to, internet connectivity, networks and devices, databases) and delays and failures in the iTransplant Products may occasionally occur, thus, the iTransplant Products are not intended or suitable for use in situations or environments where failure, time delay, error or inaccuracies in the content, data or information provided by the iTransplant Products could lead to death, personal injury or severe physical, financial or environmental damage, nor is it intended to be used for emergency purposes. The messaging system that may comprise part of the iTransplant Products, for example, is intended to deliver non-critical, non-emergency messages between and among Subscribers and/or Authorized Users and you assume the entire risk of any failures and delays that may occur in delivering or receiving properly sent messages using the iTransplant Products. The iTransplant Products are not expected to perform at the same level you might expect from using your current systems for managing organ, tissue, and/or eye donations and transplantations, including but not limited to any applicable respective iTransplant System(s) associated with the iTransplant Products and Subscriber, and is not intended to be a substitute for such systems in the context of critical medical care environments. IT IS SOLELY YOUR RESPONSIBILITY TO ESTABLISH BACK-UP AND SUBSTITUTE COMMUNICATION METHODS, PROTOCOLS AND PROCEDURES IN THE EVENT THAT THE ITRANSPLANT PRODUCTS OR ANY PART OF THEM FAIL OR ARE INACCESSIBLE OR UNAVAILABLE INDEFINITELY.
22. Limitation of Liability and Remedies. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL TC OR ANY OF ITS OFFICERS, SHAREHOLDERS, PREDECESSORS, SUCCESSORS IN INTEREST, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SUPPLIERS, OR SERVICE PROVIDERS HAVE ANY LIABILITY WHATSOEVER FOR 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 DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, ARISING FROM YOUR ACCESS TO, USE OF, OR INABILITY TO USE THE ITRANSPLANT PRODUCTS, INCLUDING BUT NOT LIMITED TO FAILURE TO DOWNLOAD OR INSTALL ANY UPDATES AS THEY BECOME AVAILABLE, UNAVAILABILITY OF THE ITRANSPLANT PRODUCTS (IN WHOLE OR IN PART) FOR ANY REASON AND FOR ANY PERIOD OF TIME, FAILURE, DELAY, OR POOR PERFORMANCE OF THE ITRANSPLANT PRODUCTS. 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 WHETHER TC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY AGAINST TC FOR ANY DISSATISFACTION WITH THE ITRANSPLANT PRODUCTS IS TO STOP USING THE ITRANSPLANT PRODUCTS. NOTWITHSTANDING THESE PROVISIONS, IF TC IS FOUND LIABLE TO YOU FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE ITRANSPLANT PRODUCTS, TC’S LIABILITY SHALL BE LIMITED TO AND SHALL NOT EXCEED THE TOTAL AMOUNT YOU PAID TO TC, IF ANY, DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE NOTICE OF DISPUTE, PURSUANT TO SECTION 23 BELOW. IN ADDITION TO THE FOREGOING LIMITATIONS, YOU AGREE: (A) TO NOT JOIN ANY CLAIM AGAINST TC WITH ANY CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION, OR OTHER PROCEEDING; AND (B) THAT YOU WILL NOT ASSERT A CLAIM AGAINST TC TO BE RESOLVED ON A CLASS-WIDE BASIS OR ASSERT A CLAIM IN ANY REPRESENTATIVE CAPACITY AGAINST TC ON BEHALF OF ANY INDIVIDUAL OR ENTITY. NO PERSONS OTHER THAN THE PARTIES TO THIS EULA (OR THEIR RESPECTIVE PERMITTED ASSIGNS) SHALL HAVE ANY EQUITABLE LEGAL RIGHT, REMEDY, OR CLAIM UNDER OR WITH RESPECT TO THIS EULA OR THE ITRANSPLANT PRODUCTS.
You acknowledge and agree that the unauthorized use of the iTransplant Products, disclosure of Confidential Information, or breach of this EULA could cause TC irreparable harm and money damages may be inadequate to compensate TC for such harm. Accordingly, in addition to any other available remedies, TC shall be entitled to seek equitable relief, including but not limited to injunctive relief and/or specific performance, jointly and severally against both the individual Subscriber(s) along with their respective associated organization(s), and/or their respective agents and subcontractors, as TC may elect at its sole discretion, the granting of which shall not be subject to or conditioned upon any requirement of posting a bond or other security. Termination of this EULA will not limit TC’s rights or remedies at law or in equity.
23. Dispute Resolution. Except for the exceptions specified in this section, all disputes, claims, and causes of action arising out of or relating to this EULA or the iTransplant Products at any time before, during or after the EULA Term will be governed without exception by this section, which shall survive termination of this EULA. To resolve any such dispute, claim, or cause of action, the dispute resolution process detailed herein must be commenced by sending a Notice of Dispute pursuant to this section within one (1) year after the dispute arose or the cause of action or claim accrued, otherwise, that cause of action, dispute, or claim is permanently barred. If one party to this EULA believes there is a dispute or claim against another party to this EULA, then the aggrieved party shall provide written notice of the dispute (“Notice of Dispute”) to the other party(ies). The Notice of Dispute must be clearly and plainly titled as such and must provide a reasonably concise statement of the particulars of the dispute, including any key dates, times, personnel, and other important details as applicable. Promptly upon receipt of the Notice of Dispute, the parties in dispute must use their best efforts to resolve such dispute in open, fair and reasonable settlement discussions and negotiations. If a mutually-agreeable resolution is not achieved by the parties from such settlement discussions within thirty (30) days of receipt of the Notice of Dispute, then mediation will be the first exclusive remedy of any party to the dispute, and any party may submit the dispute to non-binding mediation to be administered in Los Angeles by an American Arbitration Association provider under its Commercial Mediation Rules or as the parties may otherwise mutually agree in writing. If the dispute remains unresolved for sixty (60) days after receipt of the Notice of Dispute, then, unless you opt out of arbitration in accordance with the opt-out terms provided below, binding arbitration will be the final, sole and exclusive remedy of any party to the dispute and any party may submit the dispute to binding arbitration, in which case it shall be heard by one (1) arbitrator with exclusive venue, personal jurisdiction, and hearing authority vested in the Judicial Arbitration and Mediation Services (JAMS) in Los Angeles, California administered pursuant to the JAMS Streamlined Arbitration Rules and Procedures. Mediation and/or arbitration fees charged by the mediation or arbitration providers shall be split equally between or among the parties in dispute and each party shall be responsible for their own costs and expenses incurred in connection with the dispute resolution process; provided, however, that the arbitrator may, as part of its award, require the non-prevailing part(ies) to reimburse the prevailing part(ies)’ reasonable costs and expenses (including without limitation, reasonable attorney’s fees) incurred in connection with such arbitration or any effort to enforce this EULA. This section further provides the express understanding and agreement of the parties that EACH PARTY HEREBY KNOWINGLY AND VOLUNTARILY FULLY WAIVES ANY RIGHT TO TRIAL BY JURY in connection with any dispute related hereto in which the right to jury trial may otherwise apply. This section is conclusive evidence of each party’s waiver and may be admitted in order to establish such waiver at any proceeding in relation to this Agreement. Should any dispute arise, all information pertaining to the dispute, including without limitation, the nature and/or terms of any resolution thereof, shall be treated by all parties as strictly confidential and shall not be disclosed at any time, directly or indirectly, to any person or entity, except as may be expressly required by a court of competent jurisdiction in a proper legal proceeding.
Opt-Out of Arbitration. You may opt out of the binding arbitration described in this section by sending us written notice that you are opting out of binding arbitration (an “Arbitration Opt-Out Notice”) by email at [iTxSupport@invitahealth.com] or regular mail at Transplant Connect, Inc., 12121 Wilshire Blvd., Suite 1005, Los Angeles, CA 90025 within thirty (30) days following the date you first agree to this EULA. If you don’t provide us with an Arbitration Opt-Out Notice within such thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any claim or dispute in court, except with regard to the exceptions noted in the “Exceptions” section below. Any Arbitration Opt-Out Notice received after such thirty (30) day period shall not be valid or enforceable. In the event that you provide to us a timely Arbitration Opt-Out Notice or the arbitration terms of this EULA are held not to be applicable, then you and we agree that the exclusive jurisdiction and venue for any Dispute will be the state and/or federal courts located in Los Angeles, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. In such event, you and we further waive the right to a jury trial.
UNLESS YOU OPT OUT IN ACCORDANCE WITH THE OPT-OUT TERMS PROVIDED ABOVE, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS EULA OR THE ITRANSPLANT PRODUCTS OR ANY SERVICES WE PROVIDE, AND/OR ANY OTHER CLAIM OR DISPUTE BETWEEN YOU AND US, EXCEPT FOR THE EXCEPTIONS SPECIFIED BELOW WILL BE RESOLVED IN ACCORDANCE WITH THE TERMS PROVIDED HEREIN. UNLESS YOU PROVIDE AN ARBITRATION OPT-OUT NOTICE TO US IN ACCORDANCE WITH THE OPT-OUT TERMS PROVIDED ABOVE, YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO LITIGATE CLAIMS (OTHER THAN THOSE NOTED IN THE EXCEPTIONS BELOW) THROUGH A COURT BEFORE A JUDGE OR JURY. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
Class Action Waiver. You and we agree that any and all arbitrations shall be conducted in their individual capacities only and not as a class action or other representative action, and you and we expressly waive the right to file a class action or seek relief on a class basis or any other representative basis. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of such parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than all parties to the arbitration, or resolve any dispute of anyone other than any such party; nor (b) make an award for the benefit of, or against, anyone other than any such party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this specific paragraph, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, EVEN IF THE DISPUTE OR DISPUTES THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT.
If any court or arbitrator determines that the arbitration, jury trial waiver or class action waiver provisions of this EULA are void or unenforceable for any reason or that an arbitration can proceed on a class basis, or a class action waiver is void, unenforceable or otherwise invalid or prohibited under applicable laws in the jurisdiction where you reside, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exceptions: Litigation of Intellectual Property Claims and Claims By Us Seeking Injunctive or Other Equitable Relief. We may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property, and claims for injunctive or other equitable relief in the state or federal courts located in Los Angeles, California or in the courts of any other competent jurisdiction of our choosing, and you consent to such venue and personal jurisdiction therein for any such proceedings and waive any claim, argument or defense that such courts constitute an improper or inconvenient venue for such proceedings.
25. Notices. All notices to you as required or contemplated by this EULA (unless otherwise stated in this EULA) will be in writing and will be deemed given and received when delivered by email to you at the email address that TC has on record for you, that is associated with your TC account, or otherwise designated by you to TC. Notices to TC shall be sent to 12121 Wilshire Blvd., Suite 1005, Los Angeles, CA 90025 or to the principal address of TC as indicated on the TC website by express courier delivery with proof of delivery from the courier.
26. Statements. After your first date of access to the iTransplant Products, TC may decide in its sole discretion to (a) issue a press release or public statement regarding you or your organization’s selection and/or use of the iTransplant Products, the content of which will be mutually agreed upon prior to publication, and (b) include your name and/or logo in the list of customers that TC provides to its then current or prospective customers. You must not, at any time during the Term or thereafter, make statements, representations, or otherwise communicate, directly or indirectly, in writing, orally or otherwise, or take any action which may directly or indirectly disparage TC or any of its subsidiaries or affiliates, or their respective officers, directors, employees, agents, contractors, representatives, advisors, businesses or reputations. Notwithstanding the foregoing, nothing in this section will preclude you from making truthful statements that are required by applicable law, regulation, or legal process.
- Amendment; Waiver. Except as updated or changed by us from time to time as expressly set forth herein, this EULA may not be amended, waived or modified except by an instrument in writing executed by duly-authorized representatives of the parties, and no course of conduct will constitute an amendment or modification of this EULA. No waiver of any breach of this EULA will: (a) be effective unless it is in a writing and executed by the party charged with the waiver, and (b) constitute a waiver of any subsequent breach, whether of the same or different nature. All waivers will be strictly construed, and no delay or failure to assert or exercise any right by any party hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any further exercise of that or any other right hereunder and will not constitute a waiver of any right or provision of this EULA.
- Survival. Notwithstanding anything to the contrary contained herein, the provisions of Sections 4, 6, 12, 13, 15 and 17-30 and all TC’s and your respective obligations, representations and warranties under this EULA that are not, by their express terms, fully to be performed the EULA Term will survive the termination of this EULA.
- Governing Law. This EULA shall be governed by California law without application of conflicts of laws principles.
- Assignment; Binding Nature. No party may assign, subcontract, delegate or otherwise transfer this EULA or any of its rights or obligations hereunder without the written authorization of all non-assigning parties, with the sole exception being an assignment by TC to an affiliate of TC or as part of a reorganization, merger or sale of all, or substantially all, of TC’s assets or equity and written consent shall not be needed to consummate such a transaction. This EULA will be binding upon and shall inure to the benefit of the parties and their respective legal representatives, permitted successors and assigns.
- Joint and Several Liability. You and the Subscriber under which you are an Authorized User shall be jointly and severally liable for your conduct, acts, and omissions, and if you are an entity Subscriber, you will additionally be liable for the conduct, acts, and omissions of all your employees, affiliates, agents, contractors, representatives, consultants, service providers and other Authorized Users.
- Remedies. No right or remedy conferred by this EULA is exclusive of any other right or remedy conferred herein, by law, or in equity; rather, all rights and remedies are cumulative of every other right or remedy and may be exercised concurrently or separately in the pursuing party’s sole discretion, unless expressly stated otherwise herein.
- Non-Solicitation. At all times during the Term, and for a period of three (3) years after termination of this EULA, you must not solicit or hire any personnel then working at TC.
- Severability. If any provision of this EULA or any application thereof is invalid, illegal, or unenforceable in any respect, in whole or in part, such provision shall be eliminated, limited or modified only to the minimum extent to become valid and enforceable, and the provision, as modified and/or the remaining provisions of this EULA continue in full force and effect. Nothing herein shall in any way diminish or reduce your or your employer’s obligations under any other written executed agreement.
- Notice for California Users. Under California Civil Code Section 1789.3, our name, address and telephone number are provided below and the fees charged for the use of our services is provided to you when contracting for the particular services. California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 .
- Suggestions. In the event that you provide suggestions, recommendations or other feedback (collectively, “Suggestions”) regarding the iTransplant Products, you hereby grant to us a royalty-free, worldwide, irrevocable, transferable, sublicenseable and perpetual license to use, disclose, reproduce, license, distribute, incorporate into the iTransplant Products and otherwise exploit such Suggestions with no obligation to pay any amount, attribute, license or make available to you or any other third party.
- Force Majeure. We will not be liable for any failure or delay in our performance under this EULA or the use of the iTransplant Products or the provision of any of our services or any other obligation due to any cause beyond our reasonable control, including act of war, acts of God, earthquake, storms or other weather or natural events, embargoes, riots, protests, vandalism, looting, civil unrest, sabotage, terrorism, epidemics, pandemics, other health crisis, labor shortages or disputes or other market or business disturbances, systemic electrical, telecommunications network issues, or other utility failures, governmental acts omissions, orders or restrictions, failure of the Internet, security breaches, viruses, ransomware or other attacks, provided that we: (i) give you prompt notice of such cause, and (ii) use our reasonable commercial efforts to correct promptly such failure or delay in performance.
- The parties confirm that it is their express wish that this EULA, as well as any other documents related to this EULA, including notices, schedules, and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, incluant tous les avis, annexes, et autorisations, soient rédigés en langue anglaise seulement.
28. App Distribution Platforms. The mobile application made available as part of the iTransplant Products (the “App”) can only be obtained through the Apple, Inc. App Store (“App Store”) and through the Google, Inc. Google Play Store (“Google Play Store”) and is only compatible with devices that operate with Apple’s iOS or Google’s Android operating systems. Apple, Inc. and Google, Inc. will be collectively referred to herein as “Distributors” or individually as “Apple” or “Google”, respectively. By downloading and installing the App from the App Store or the Google Play Store, you agree to be bound by the App Store Terms and Conditions and the Google Play Terms of Service, respectively. The provisions of this EULA apply to your use of the App, including without limitation all App versions available as iOS or Android applications via the App Store or Good Play Store, and you further acknowledge and agree that: (i) The provisions of this EULA are effective as between you and TC only (and not as to Distributors), but Distributors and their respective subsidiaries are third party beneficiaries of the EULA such that, upon your acceptance of this EULA, Apple or Google will have the right to enforce the provisions of this EULA against you as third-party beneficiaries to this EULA, depending on whether you installed the App from the App Store or the Google Play Store, respectively; (ii) You will only use the App in connection with an Apple or Android device that is solely controlled by you and comply with the applicable third-party terms of agreement that may affect or be affected by such use, including without limitation, the App Store Terms and Conditions and the Google Play Terms of Service, respectively; and (iii) Distributors are not responsible for the App and have no obligation whatsoever to furnish any maintenance or support services with respect to the App or address any claims you or any third party may have in relation to the App. Distributors’ sole warranty obligation to you in connection to the App will be to refund you the purchase price you paid to Distributors, if any, for installing the App. If a third party makes a claim that the App or your possession or use of the App infringes on that third party’s intellectual property rights, TC, and not Distributors, will be responsible for investigating, defending, settling, or resolving any such infringement claim.
29. Reporting Violations; Enforcement. If you become aware of a violation of the EULA terms or other misuse of the iTransplant Products by others, please contact us via e-mail at: [iTxSupport@invitahealth.com]. When we become aware of an alleged violation of the EULA terms or other misuse of the iTransplant Products, we may initiate an investigation. Depending on the severity of the violation, we may, at its sole discretion, immediately restrict, suspend, or terminate access to the iTransplant Products and/or pursue other civil remedies. If such violation is a criminal offense, we will notify the appropriate law enforcement agency of such violation.
30. Contacting Us. If you need to contact us for any reason, please contact us by e-mail or postal mail or by telephone as follows: Transplant Connect, Inc., 12121 Wilshire Blvd., Suite 1005, Los Angeles, CA 90025 or by email to [iTxSupport@invitahealth.com] or by telephone at (310) 392-1400.
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