blueTeleMed End User License Agreement For Service Providers
Last Revised: March 29, 2020 Ver: 0329
This End User License Agreement for Patients (the “EULA”) is a contract between the licensee (the “Licensee”) and ZH Healthcare, Inc. (“ZH Healthcare”), for Licensee’s use of ZH Healthcare’s blueEHR Platform (the “Services”).
PLEASE READ THIS EULA CAREFULLY. ZH HEALTHCARE PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR BOX OR OTHER MEANS PROVIDED FOR ACCEPTANCE, LICENSEE AGREES TO (A) ACCEPT THIS EULA AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) LICENSEE IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, LICENSEE HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA AND BIND SUCH PARTY TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA, ZH HEALTHCARE WILL NOT AND DOES NOT LICENSE THE SERVICES TO LICENSEE AND LICENSEE MUST NOT ACCESS OR UTILIZE THE SERVICES.
ZH Healthcare is the owner and operator of a managed electronic healthcare records (“EHR”) service (the Services) that allows healthcare providers and patients to exchange information. The Services provides EHR functionality only. ZH HEALTHCARE AND THE SERVICES ARE NOT DOCTORS OR MEDICAL SERVICE PROVIDERS. NEITHER ZH HEALTHCARE NOR THE SERVICES PROVIDE MEDICAL ADVICE.
- Definitions. Capitalized terms used in this Exhibit shall have the meaning set forth in this Section 1:
“Documentation” means user manuals, technical manuals, and any other materials provided by ZH Healthcare, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Services.
“Patient Data” means any data associated with a Patient that is entered into the Services.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 of the United States (Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996), as amended.
- Free License Conditioned Upon Agreement To Terms. ZH Healthcare and its licensors grant to Licensee a free license to use the Services provided that Licensee agrees to abide by the terms and conditions set forth in this EULA.
- Services Not Error-Free. Licensee acknowledge that the Services may be interrupted from time to time. Licensee further acknowledges that the Services are not error-free.
- Suspension of Use. ZH Healthcare and its licensors will be entitled, on reasonable grounds, including the reasonable belief of fraud or illegal activity by Licensee, or any individual under Licensee’s control, in their use of the Services, to suspend access by Licensee to the Services. Licensee understands that ZH Healthcare and its licensors may be required by law enforcement agencies to disclose information regarding Licensee’s use of the Services and that ZH Healthcare and its licensors will comply with such requests.
- License Grant. Subject to and conditioned upon Licensee’s: (a) strict compliance with all terms and conditions set forth in this EULA; (b) truthful representations and warranties set forth herein; and (c) adherence to the medical malpractice insurance requirements set forth herein: ZH Healthcare grants to Licensee a limited, revocable, non-exclusive, non-transferable, without the right to sublicense, right to use the Services. No license is granted under this EULA to access, copy, use, or create derivative works of the Services except in connection with the ZH Healthcare’s provision of the Services.
- Limitations on Use. No license is given to Licensee to the source code to the Services. Without the express written authorization from ZH Healthcare, Licensee shall not (nor through any third party): (i) use, copy, duplicate or reproduce all or any portion of the Services (including the Documentation) for any purpose other than as specified in this EULA; (ii) decompile, disassemble, re-program, analyze, reverse engineer any of the Services (in whole or in part) or otherwise attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms, or source code, or disclose any of the foregoing (except to the extent such restriction is prohibited by law); (iii) sell, rent, lease, license, sublicense or in any way redistribute any or all of the Services; (iv) use the Services to create a service bureau, timesharing arrangement, or application service provider; (v) modify, adapt, translate, prepare derivative works of all or any portion of the Services or attempt to do so; (vi) remove, obscure or alter ZH Healthcare’s or its licensors’ product identification, copyright notices, Marks or other proprietary rights notices affixed to or contained within the Services or Documentation; (vii) permit the Services to be used, examined, reviewed or inspected by others; (viii) disclose the results of any benchmark or evaluation of the Services to any third party (whether or not obtained with ZH Healthcare’s assistance) without ZH Healthcare’s prior express written consent; (ix) use the Services, Documentation or any information contained therein or otherwise provided by ZH Healthcare or its licensors for any commercial or for-profit purposes; (x) use the Services, Documentation or any information contained therein or otherwise provided by ZH Healthcare or its licensors for the purposes of developing, or having developed, any products or services competitive with the Services; (xi) incorporate, link, or distribute the Services with any code or Services licensed under the GNU General Public License (“GPL”), Lesser General Public License (“LGPL”), Mozilla, or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Services (or any modifications thereto) to become subject to the terms of the GPL, LGPL, Mozilla or such other open source license. Licensee shall not authorize, or acquiesce in, any other person engaging in any of the foregoing activities, or attempting to do so. Should it become known to Licensee that any person or entity has attempted to do any of the aforementioned activities, Licensee shall immediately notify ZH Healthcare.
- Delays in Performance. ZH Healthcare will not be responsible for implementation delays or service degradations that are not within its control including, without limitation, implementation delays or service degradations caused by Licensee, third-party service providers or any interconnecting communications carrier.
- Collection and Use of System Data. Licensee acknowledges that ZH Healthcare may, directly or indirectly through the Services collect and store information regarding use of the Services and about equipment on which the Services is installed or through which it otherwise is accessed and used, through (i) the provision of maintenance and support services; and (ii) security measures included in the Services. Licensee agrees that ZH Healthcare may use such data for any purpose related to any use of the Services by Licensee or on Licensee’s equipment, including but not limited to (x) improving the performance of the Services or developing updates thereto; and (y) verifying Licensee’s compliance with the terms of this EULA and enforcing the ZH Healthcare’s rights, including all Intellectual Property Rights in and to the Services.
- Collection and Use of Patient Data. ZH Healthcare shall have the right to use all de-identified Patient Data (collectively, the “Aggregated Data”) for any legal purposes without additional compensation to the Licensee. For the purposes of this EULA, “de-identified” shall have the same meaning as defined at 45 C.F.R. § 164.514(b)(2) from the rules implementing the privacy and security protections under HIPAA. ZH Healthcare shall use reasonable efforts to preserve the confidentiality of the Aggregated Data. For purpose of clarity, ZH Healthcare shall be able to use all Aggregated Data after the termination of this EULA in any manner it sees fit (subject to applicable laws of the jurisdictions of where the data was collected and processed).
- Compliance With Laws. ZH Healthcare and Licensee agree to abide by all laws and regulations applicable to the Services and this EULA.
- No Maintenance and Support. This EULA confers no maintenance or support obligations upon ZH Healthcare.
- ZH Healthcare Intellectual Property Rights. Licensee acknowledges that the intellectual property rights underlying the Services and Documentation (collectively, the “ZH Healthcare IP”) is owned by, and shall remain the sole property of ZH Healthcare and its licensors, that the ZH Healthcare IP contains, embodies and is based upon worldwide patented or patentable inventions, trade secrets, copyrights and other intellectual property rights (collectively, “Intellectual Property Rights”) owned or licensed by ZH Healthcare and its licensors, and that ZH Healthcare and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the ZH Healthcare IP worldwide including, without limitation, any derivative works. This EULA does not convey to Licensee title or ownership of the Intellectual Property Rights underlying the ZH Healthcare IP, but only a right of limited use in accordance with this EULA. Licensee acknowledges that the ZH Healthcare IP provided by ZH Healthcare pursuant to this EULA is entitled to protection under applicable copyright and other intellectual property laws and constitute valuable assets, trade secrets and proprietary rights of ZH Healthcare or its licensors.
- Licensee’s Representations and Warranties. Licensee represents and warrants that:
- Licensee is licensed (the “Medical Licenses”) to provide the type of medical services in all jurisdictions in which the Licensee is providing medical services (the “Licensed Jurisdictions”) in connection with its use of the Services;
- Licensee’s Medical Licenses shall remain valid and current at all times in all the Licensed Jurisdictions while using the Services;
- Licensee shall provide all medical services in a reasonable manner and in accordance with the standard of care observed in the Licensed Jurisdictions; and
- Licensee is in compliance with all laws and regulations of the Licensed Jurisdictions including, but not limited to, any laws or regulations that require the Licensee to maintain medical malpractice insurance.
- DISCLAIMER OF WARRANTY. ZH HEALTHCARE AND ITS LICENSORS DO NOT MAKE ANY WARRANTIES, TERMS, REPRESENTATIONS OR STATEMENTS WHATSOEVER WHETHER EXPRESSED OR IMPLIED BY STATUTE, CUSTOM, USAGE OR OTHERWISE WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SERVICES, AND NON-INFRINGEMENT, OF MERCHANTABILITY OR QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT THE SERVICES IS ACCURATE OR COMPLETE, AND ALL SUCH WARRANTIES ARE DISCLAIMED HEREBY. ZH HEALTHCARE MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SERVICES, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS THE SERVICES IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. LICENSEE AGREES THAT NO COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE SHALL APPLY TO THIS EULA. LICENSEE ACKNOWLEDGES THAT LICENSEE’S ONLY REMEDIES IN RESPECT OF ANY CLAIM WHATSOEVER THAT LICENSEE MAY WISH TO BRING AGAINST ZH HEALTHCARE AND ITS LICENSORS ARE AS EXPRESSLY PROVIDED IN THIS EULA.
- LIMTATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW AND EXCEPT FOR DEATH OR PERSONAL INJURY CAUSED BY ZH HEALTHCARE OR ITS LICENSORS’ GROSS NEGLIGENCE, ZH HEALTHCARE AND ITS LICENSORS OR ANY THIRD PARTY SUPPLIER SHALL, UNDER NO CIRCUMSTANCES, HAVE ANY LIABILITY WHATSOEVER TO LICENSEE FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSS OR ANY LOSS OF ACTUAL OR ANTICIPATED PROFIT, REVENUE OR GOODWILL OR LOSS OF USE OF THE SERVICES BY LICENSEE OR FOR ANY OF LICENSEE’S LIABILITY TO ANY OTHER PARTY OF WHATEVER KIND HOWSOEVER ARISING (INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS, ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; OR CLAIMS FOR DAMAGES OR AWARDS OR OTHERWISE) OR ANY OTHER LOSS OR DAMAGE SUFFERED BY LICENSEE UNDER OR IN CONNECTION WITH LICENSEE’S USE OF THE SERVICES (WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND WHETHER AS A RESULT OF NEGLIGENCE OR OTHERWISE).
- Indemnification. Licensee shall defend, indemnify and hold harmless ZH Healthcare, its licensors, suppliers, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the Services (collectively the “Indemnified Parties”) from and against all damages, cost, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person stemming from its breach of Section 13 (Licensee’s Representations and Warranties).
- Termination. ZH Healthcare may terminate this EULA:
- with immediate effect by written notice given by ZH Healthcare if ZH Healthcare’s agreement with a supplier or licensor of the Services is terminated or restricted for any reason; or
- with immediate effect by written notice given by ZH Healthcare or its licensors if Licensee commits any material breach of any term of this EULA that (in the case of a breach capable of being remedied) shall not have been remedied within five (5) business days of a written request to remedy same.
- Upon Termination. Upon expiration or termination of this EULA in whole or in part, all right to use the Services ceases.
- Assignment. This EULA and the rights and obligations hereunder may not be assigned, delegated, sublicensed or transferred by Licensee without the prior written consent of the ZH Healthcare. Any attempted assignment, delegation, sublicense or transfer by Licensee without such written consent shall be void and of no effect. ZH Healthcare shall be free to assign its rights and obligations hereunder.
- Export Regulation. The Services and Documentation may be subject to United States export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Services or Documentation to, or make the Services or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or Documentation available outside the United States.
- Force Majeure. ZH Healthcare shall not be liable to Licensee or shall not be subject to termination of this EULA for any delay, nonperformance, loss or damage because of reasons beyond ZH Healthcare’s reasonable control including, but not limited to, acts of God, natural casualties, acts of government, floods, fires, earthquakes, pandemic outbreaks, civil unrest, acts of terror, labor or material shortages, strikes, communication systems failures, internet service provider failures or delays, or denial of service attacks, war, riots, power failures, or transportation conditions (each a “Force Majeure Event”).
- Governing Law and Venue. This EULA shall be governed by the laws of the State of Maryland, USA, without regard to its conflict of laws provisions. The United Nations Convention for the International Sale of Goods does not apply to this EULA. The Parties hereby consent to suit in, and to the personal jurisdiction of the State of Maryland, USA, with respect to any matter arising out of this EULA.
- Miscellaneous Provisions. A failure or delay of ZH Healthcare to enforce any of the provisions of this EULA shall in no way be construed to be a waiver of such provisions. In the event that any provision of this EULA shall be held to be invalid, the remaining provisions of this EULA shall be unimpaired and the invalid provisions shall be replaced by a mutually acceptable provision. No modification of this EULA shall be binding unless signed by the parties. The parties agree that where the context of any provision indicates an intent that it shall survive the termination of this EULA, then it shall so survive. There are no intended third party beneficiaries of any provision of this EULA. Damages may be an inadequate remedy in the event of a breach by either party to this EULA and that any such breach by either party may cause the other party great and irreparable injury and damage. Accordingly, both parties agree that the party claiming breach shall be entitled, without posting a bond or waiving any additional rights or remedies otherwise available to it at law or in equity or by statute, to injunctive and other equitable relief. This EULA constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior discussions, agreements and representations, whether oral or written and whether or not executed by the parties. This EULA will not be construed in favor of or against either party solely on the basis of a party’s drafting or participation in the drafting of any portion of this EULA. The headings in this EULA are for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent, or intent of this EULA or any of its provisions. All personal pronouns used in this EULA, whether used in the masculine, feminine or neuter gender, shall include all other genders, the singular shall include the plural, and vice versa, as the context may require.
— End of EULA –-