Revised June 30, 2019
This End User License Agreement (“EULA”) is a legal agreement between you and healthPrecision, Inc. (“hP”) that becomes effective when you accept it in order to register and start working with The Medical Brain® Program. Read these terms carefully in their entirety as they set each party’s responsibilities in connection with your use of the Product and related services.
By clicking on the “Accept” button, or by accessing the Product, you accept all the terms and conditions of this EULA and agree to be bound by them. If you do not accept the terms of this EULA, you are not permitted access or use of the Product. In such case, click the “Cancel” button.
healthPrecision, Inc. provides software and related services known as The Medical Brain® Program, intended to assist patients and their healthcare providers in the management of information related to the patient’s health. The software is a clinical decision support system intended to be used by patients, authorized family members or care givers, as well as their healthcare providers, care coordinators, care givers, healthcare practices, health systems, facilities, hospitals and other healthcare organizations, to (a) collect and store certain patient data retrieved from different sources, such as EHRs and patient inputs, and (b) assist in recognizing when (i) information about the patient’s health may potentially be missing, based on institutional policies or guidelines; or (ii) the approach to the patient’s health may potentially deviate from institutional policies or guidelines.
It is intended that the patient’s compliance with the institutional policies and guidelines be increased through his/her awareness of the information provided by the Medical Brain®.
The Product is NOT intended to substitute for a healthcare provider’s judgment in the delivery and/or safety of medical care provided to you based on his/her training and experience. Accordingly, you acknowledge and agree that neither hP nor the Product offer medical advice, medical service or emergency service of any nature. Use of the Product or any content or data accessed through the Product is not a substitute for consulting professional healthcare providers competent in diagnosing and treating conditions. You must always seek the advice of a professional healthcare provider regarding to your conditions, symptoms, and appropriate treatments. Your reliance upon information and content obtained by you through the Product is solely at your own risk.
YOU ACKNOWLEDGE AND AGREE THAT (A) THE PRODUCT IS NOT INTENDED TO SUBSTITUTE FOR, OR TO REPLACE THE SKILL, KNOWLEDGE, AND EXPERIENCE OF LICENSED PHYSICIANS OR OTHER CARE PROVIDERS; (B) HP ASSUMES NO RESPONSIBILITY FOR YOUR HEALTH AND IS NOT PROVIDING THE PRODUCT OR ANY SERVICE HEREUNDER TO YOU AS A SUBSTITUTE OR REPLACEMENT FOR THE MEDICAL JUDGMENT OF A LICENSED PHYSICIAN OR OTHER CARE PROVIDER; (C) ALTHOUGH HP MAY RECOMMEND CERTAIN SERVICES OR UPGRADES TO THE PRODUCT, HP ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY FAILURE OF YOU TO INCORPORATE OR IMPLEMENT SUCH RECOMMENDATIONS, WHETHER THROUGH THE PURCHASE OF ADDITIONAL SERVICES OR OTHERWISE; AND (D) HP HAS NO AND DISCLAIMS ANY RESPONSIBILITY WHATSOEVER FOR, AND YOU RELEASE HP FROM ANY CLAIMS ARISING FROM OR RELATED TO THE CONDUCT OF YOUR BUSINESS OR FOR ACTS OR OMISSIONS OF YOU IN THE PROVISION OF YOUR HEALTH CARE, AND THAT ANY RELIANCE UPON THE PRODUCT SHALL NOT DIMINISH YOUR FULL AND SOLE RESPONSIBILITY FOR YOUR HEALTH CARE.
Communications with Providers through the Product should not be used for urgent or emergency situations. The Product does not provide emergency or urgent medical services. PLEASE CALL 911 OR YOUR HEALTH CARE PROVIDER IF YOU BELIEVE THAT YOU ARE EXPERIENCING A MEDICAL EMERGENCY OR IF YOU NEED URGENT CARE.
The Product is owned, operated and maintained by hP. hP grants a limited license to each user to make personal use of the Product in accordance with this EULA.
hP reserves the right at its sole discretion to determine who may qualify for an Account and reserves the right to reject or revoke any account at any time without liability.
Only persons who are 18 years of age or older are authorized to create and use an Account. To create your Account, you will be required to provide certain personal information. You agree that you will provide only current and accurate information when creating and using your Account.
When you create your Account, you will be required to establish a username and password for the account. You should not share your username or password information with anybody. You agree to take precautions to protect that information from discovery by others.
You agree that you are responsible for all activity that occurs through use of your Account, and you agree to notify hP immediately of any unauthorized use of your Account.
hP may enable you to create Accounts for minors or other members of your family over whom you have legal authority. You may only do so if you are the Authorized Individual, and by doing so, you certify that you have such authority.
hP may enable you to give access to your Account to Authorized Individuals. When you give access to an Authorized Individual, you automatically grant permission to such Authorized Individual to access the information contained within, and/or perform certain transactions through, your Account and permit your Providers to communicate with such Authorized Individuals about your health status.
You may use the Product to share certain personal information and PHI with Providers and to communicate with such Providers. You understand that any decision to use the Product in such ways is entirely voluntary. You understand that by using the Product, the Provider and its/his/her staff and other authorized users within its/his/her facility or office will have access to your PHI and the ability to communicate with you as well.
hP grants a limited license to each user to make personal use of the Product in accordance with this EULA. Any commercial use of the Product is expressly prohibited. This license expressly excludes, without limitation, any reproduction, duplication, sale, resale or other commercial use of the Product, or making any derivative work of the Product.
You agree not to use the Product for any illegal or harassing activities, and you agree to comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software, when using the Product. Specifically, you agree not to do any of the following:
You further agree that you will not:
hP is committed to protecting your personal information and employs a variety of security technologies and procedures to help protect your information from unauthorized access, use, and disclosure. This includes, but is not limited to, storing your personal information on secure servers, using robust encryption technology, and requiring comprehensive security training for hP’s workforce.
PHI and other data may be entered into the Product directly by you or via data transfer from a data repository, such as your Provider's electronic health records or similar sources of your data.
With regard to any electronic transfer of data between the Product and any healthcare organization or other person or organization that is initiated, whether by you or anyone else, you agree that you forever waive all claims and actions of any kind against the person or organization from which such transfer is made if such claim or action relies or depends on an assertion that the transfer was not authorized by you or that the transfer violated any law or regulation pertaining to the protection and privacy of the data that was transferred. You further agree that people and organizations from which such transfers are made are intended third-party beneficiaries of this agreement entitled to enforce this waiver of claims.
Except for the data and information that you provide when registering for or using the Product (whether directly or through transfers from other organizations, persons or devices), hP owns the content and all software contained in or underlying the Product. The hP-owned content and software is protected by U.S. and international copyright law and conventions and other laws protecting intellectual property. This license expressly excludes, without limitation, any reproduction, duplication, sale, resale or other commercial use of the Product, or making any derivative work of the Product.
The information you see and can learn from using the Product (other than the data and information you provide when registering and using the Product) includes confidential information and trade secrets that are owned by hP regarding the Product, its functionality, its design, and the hP software underlying the Product. You agree that you will not disclose or use such confidential information regarding the Product other than as may be necessary in connection with your proper, non-commercial use of the Product for its intended purpose.
You agree not to disassemble, decompile or reverse engineer the Product in part or in whole. Direct or indirect reproduction of the Product, its functions and content displays, in whole or in part, by any means, is prohibited without hP’s express written consent.
You also agree that you will not remove, obscure or alter any proprietary rights notices, including trademark, service mark and copyright notices, that appear on the Product.
The Product is provided “as is” and “as available” to you free of charge, for your convenience, and without warranty of any kind. hP disclaims all warranties, express or implied with respect to the Product and your usage of the Product, including any warranties of accuracy, non-infringement, merchantability and fitness for a particular purpose.
EXCEPT AS EXPRESSLY PROVIDED BELOW, HP WILL NOT BE LIABLE TO YOU FOR ANY LOSS (TANGIBLE OR INTANGIBLE) OR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO HP’S OPERATION OF THE PRODUCT, YOUR USE OF THE PRODUCT OR THIS EULA. hP SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, REGARDLESS OF HOW THE DAMAGES ARE INCURRED OR THE THEORY OF LIABILITY. THE LIMITATIONS ON HP’S LIABILITY EXPLICITLY APPLY TO CLAIMS BASED UPON ALLEGED NEGLIGENCE BY HP. THE LIMITATIONS ON HP’S LIABILITY ALSO APPLY REGARDLESS OF WHETHER hP HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY THAT SUCH LOSSES OR DAMAGES MAY OCCUR.
You acknowledge and agree that hP is not responsible in any way for the completeness or accuracy of any data or information made available to you through the Product, or for any medical advice or medical implications that may be contained in or result from such data or information.
The limitations on hP’s liability to you contained in this agreement apply even if the remedy available to you from other parties fails of its essential purpose or does not fully compensate you for any losses.
If any provision in this agreement limiting hP’s potential liability to you is determined to be unenforceable by a court or other authority with jurisdiction to decide the matter, such determination shall not preclude the application of other, enforceable, limits that would preclude or limit the same liability.
Some applicable laws might impose restrictions regarding the extent to which certain warranties may be disclaimed or to which certain damages may be limited in some circumstances. Accordingly, some of the warranty disclaimers and liability limits set forth above may not apply to you. You agree nonetheless that all such disclaimers as are permitted by applicable law shall apply to you, and that hP’s liability to you shall be limited to the maximum extent permitted by applicable law.
You agree to defend, indemnify and hold harmless hP, its subsidiaries and affiliates, and their respective officers, directors, employees, representatives, and agents from and against all losses and claims, liability or damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from (i) any claim, suit, demand, or action to the extent arising out of or related to the acts or omissions in the provision of your health care, and (ii) any third-party claims arising out of or related to your use of the Product.
You agree that this EULA shall be governed and construed under the laws of the State of Delaware in the United States, without regard to that State’s conflict of laws principles.
Notwithstanding the foregoing, you agree that hP may seek injunctive remedies or equivalent legal relief against you in any jurisdiction regarding any breach by you of the terms of this EULA.
A failure by hP to enforce any provision of this EULA, or a waiver by hP of any breach of this EULA, shall not act as a bar to subsequent enforcement of such provision or be deemed a waiver of any subsequent breach.
You and hP agree that any dispute, claim or controversy arising out of, or relating to, these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Product (collectively, "Disputes") will be settled by binding arbitration.
Arbitrations will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect. The AAA Rules and procedures for engaging an arbitrator can be found on the AAA web site (http://www.adr.org/). A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form “Demand for Arbitration” (https://www.adr.org/Rules) and lists of qualified arbitrators (https://www.adr.org/ArbitratorSelection/)
hP may change the terms of this EULA at any time by posting a subsequent version in the Product. You are responsible for periodically reviewing the EULA in the Product. You agree that your continued use of the Product following any such changes constitutes your acceptance of the new terms in the EULA, regardless of whether we’ve provided any notification to you that those terms have changed. We will make reasonable efforts to notify you of any significant changes hP might make.
All provisions of this agreement are intended to apply to the maximum extent permitted by law. If any provision (or part of any provision) is held to be invalid or unenforceable by any court or other authority with jurisdiction to make such a determination, then such provision (or part) will be deemed removed from the agreement, but all other terms and conditions will remain in full force and effect. You further agree that, to the extent legally permissible, any provision (or part of any provision) so removed shall be replaced with another provision designed to achieve a result as near as possible to that of the provision (or part) so removed to the maximum extent permitted by law.
You agree that at any time hP, in its sole discretion and without limitation or prior notice to you, may cease providing the Product for any duration of time or make any changes hP chooses to the features and functionality available through the Product even in instances where such changes may prevent you from using or accessing information previously generated, saved or submitted by you. You also agree that hP may terminate your access to the Product and your Account without prior notice to you for any reason that hP deems warrants such action, including your breach of any provision of this EULA.
hP may assign or transfer these terms, at its sole discretion, without restriction. Subject to the foregoing, these terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
This EULA constitutes the entire agreement between you and hP regarding the Product and supersedes all prior agreements, representations or understandings regarding the Product. Nobody, including any representative of hP, is authorized to make any changes or modifications to the terms of this agreement other than changes that are instituted through the posting of subsequent versions of this EULA as described elsewhere in this EULA. You agree not to act or rely on any representations to the contrary.