End User License Agreement

NOTICE TO USER: THIS IS A CONTRACT, BINDING AGREEMENT BETWEEN YOU AND SECURE EXCHANGE SOLUTIONS, INC. (“SES”) AS OWNER AND LICENSOR OF THE PROGRAMS AND HOSTED SUBSCRIPTION SERVICES SUBJECT TO THIS AGREEMENT.  READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING AND USING THESE PROGRAMS.

SES IS WILLING TO LICENSE THE COMPUTER SOFTWARE APPLICATION PRODUCTS, PROPRIETARY DATABASES AND RELATED DOCUMENTATION AND USE OF THE SERVICES AVAILABLE ON THIS SITE WHICH YOU SUBSCRIBE FOR BY ACCEPTING THIS AGREEMENT (THE “PROGRAMS”) TO YOU ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”).  THE PROGRAMS CONTAIN CERTAIN COMPUTER SOFTWARE APPLICATIONS, DOCUMENTATION, OR OTHER PROPRIETARY MATERIAL THAT ARE THE PROPERTY OF SES AND ITS SUPPLIERS AND ARE REQUIRED TO BE USED IN ORDER FOR YOU TO USE EACH OF THE PROGRAMS FOR ITS INTENDED PURPOSE.  YOUR USE OF THE PROGRAMS IS SUBJECT TO YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.  PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING OR USING THE PROGRAMS.  BY CLICKING THE “I AGREE” BUTTON BELOW, INSTALLING OR USING THE PROGRAMS, YOU ARE ACKNOWLEDGING THAT YOU UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY IT AND ARE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND THE LICENSE DESCRIBED IN THIS AGREEMENT.  IF YOU ARE PROCURING THE PROGRAMS ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY OR ORGANIZATION AND THAT ALL REPRESENTATIONS MADE BY YOU ON BEHALF OF SUCH ENTITY OR ORGANIZATION ARE TRUE AND CORRECT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SES IS UNWILLING TO LICENSE THE PROGRAMS TO YOU AND SHALL HAVE NO OBLIGATION TO PROVIDE YOU ACCESS TO USE ANY OF THE PROGRAMS.   IN THAT EVENT, YOU MAY NOT INSTALL OR USE THE PROGRAMS AND YOU MUST CLICK ON THE [“CANCEL”/“I DO NOT AGREE”] BUTTON BELOW.

 

IF YOU ARE USING THE PROGRAMS THROUGH AN ORGANIZATION WHICH IS A PARTY TO A HEALTH INFORMATION SERVICE PROVIDER (“HISP”) SUBSCRIPTION AGREEMENT WITH SES, THIS AGREEMENT MAY NOT BE APPLICABLE TO YOU AND YOUR USE OF THE PROGRAMS AND SERVICES AVAILABLE ON THIS SITE IS SUBJECT SOLELY TO THE TERMS OF THAT HISP SUBSCRIPTION AGREEMENT AND YOU WILL NOT BE BOUND TO THE TERMS OF THIS AGREEMENT.  HOWEVER, TO USE THE PROGRAMS IN ACCORDANCE WITH THE APPLICABLE HISP SUBSCRIPTION AGREEMENT, YOU MUST CLICK “I AGREE” BELOW.  IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND THE TERMS OF ANY APPLICABLE HISP SUBSCRIPTION AGREEMENT, THE TERMS OF THE APPLICABLE HISP SUBSCRIPTION AGREEMENT SHALL CONTROL.

 

BY INSTALLING OR OTHERWISE USING ANY UPDATES TO THE PROGRAMS THAT YOU RECEIVE, YOU AGREE TO BE BOUND BY ANY ADDITIONAL TERMS AND CONDITIONS, INCLUDING REQUIREMENTS FOR THE PAYMENT OF SUBSCRIPTION FEES, LICENSE FEES, OR OTHER AMOUNTS TO SES OR ITS AFFILIATES THAT ACCOMPANY SUCH UPDATES.  IF YOU DO NOT AGREE TO SUCH ADDITIONAL TERMS AND CONDITIONS, DO NOT INSTALL OR USE SUCH UPDATES.

 

1. License Grant; Termination. (a) SES hereby grants You in accordance with the terms and conditions of this Agreement, a limited term, non-exclusive, non-transferable right to use each of the Programs for its intended purpose to permit you to access and use the Services (the “License”).  The License is for binary executable code only and is intended to allow You to use each of the Programs for its intended purpose to permit You to access and use the Services. (b) Unless otherwise expressly indicated for certain Programs, this License is effective until terminated and shall immediately terminate (i) automatically upon failure by You to comply with any of its terms; (ii) at the discretion of SES in the event that You timely fail to pay any applicable Subscription Fees in full at any time; (iii) in the event that any applicable HISP Subscription Agreement is terminated or expires in accordance with such applicable HISP Subscription Agreement; or (iv) by You as provided in Section 1(d) below or Section 5(e) of this Agreement, as applicable.  (c) Upon any termination of the License provided under this Agreement, You shall (i) have no further right to make use of the Programs or Services in any manner whatsoever; (ii) immediately cease and desist from any use (whether for production or archival purposes) of the Programs; and (iii) immediately destroy the original and any copies of the Programs in Your possession or otherwise installed on any of Your information technology infrastructure.  In the event of a termination, You agree that any provisions of this Agreement that operate to protect SES shall remain in force.  (d) You may cancel your subscription to SES Online, if applicable, at any time by providing notice of such cancellation via email to support@secureexsolutions.com. Any cancellation in accordance with this Section 1(d) shall become effective at the end of the month during which such cancellation is received by SES. (e) Terms, conditions, features, pricing, service and support are subject to change by SES without notice.

2. Availability of Programs; Payment. (a) SES shall provide you with access to the Programs to permit you to access and use the Services and provide You with the Support Services described in Section 6 of this Agreement.  (b)  You agree to download and install the Programs or components thereof, if any, as necessary and required for proper access to and use of the Programs in accordance with the License.  (c) You shall provide all things other than the Programs for the Programs to operate and for You to receive and make use of the Programs including, without limitation, facilities, hardware, software, staff, equipment, communications access and operating systems required for the operation of the Programs.  (d) You acknowledge that the Programs through their normal operation provide periodic electronic reporting to SES on the use and status of Your operation and use of the Programs, including, without limitation, tracking user identification information, reporting the internet protocol addresses of the computers or accessing or using the Programs for the purposes of identifying and authenticating the persons within Your organization using the Programs and the identification and authentication of You as an organization.  (e) You agree to pay SES all amounts related to Your use of the Programs and Support Services (collectively, “Subscription Fees”), if any, on or before the first day of each calendar month by recurring charge via credit card authorization, automatic clearinghouse payment transaction authorization provided by You to SES or as otherwise required by SES for certain Programs, unless your use of the Programs is subject to an applicable HISP Subscription Agreement under which another party is obligated to pay Subscription Fees on your behalf or otherwise in order to permit you to access and use the Programs and Services subject to the License, in which case you are not responsible for payment of any Subscription Fees.

 

3. Copy, Use and Transfer Restrictions. (a) The Programs are copyrighted to SES and are the sole and exclusive property of SES.  You shall not give, sell, or otherwise distribute copies of the Programs or permit access to or use of the Programs to or by third parties, except as permitted by the License.  (b) The License permits You to install and use the Programs on a single central processing unit or server for Your use only in accordance with the intended purpose of the Programs to use and access the Services.  (c) The Programs as provided to you in accordance with the License may be used on a server or network which permits access by multiple users.  (d) The Programs use an auto-installer to load the Programs onto Your central processing unit or server.  (e) Consistent with SES’s policy on licensing Programs that use an auto-installer, You may not redistribute the Programs without the prior, written consent of SES.  Under no circumstances may You operate as a service bureau, application service provider, hosted or managed services provider, or otherwise provide the functionality of the Programs to third persons nor may you allow third parties to use the Programs to use or access the Services except as specifically provided by the License.  (f) You agree to not (and not to authorize or allow any third party to) (i) decompile, disassemble, disaggregate, or otherwise reverse engineer or attempt to reconstruct or discover any source code, components (whether in object code or source code form), underlying ideas, processes or algorithms, or interoperability interfaces of the Programs by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) modify, adapt, alter, translate or incorporate into or with other computer software application or create a derivative work of any part of the Programs; or (iv) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Programs except as Feedback to SES otherwise in accordance with this Agreement. (g) Each copy of the Programs made by You shall bear a conspicuous label or other marking indicating that the material is the property of SES and copyrighted by SES and may not be used or duplicated except as permitted by this Agreement.

4. Data; License for Data Use; Business Associate. (a) Data used by the Programs in the provision of the Services supplied by You shall be and remain Your sole and exclusive property and subject to the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and all applicable regulations promulgated thereunder concerning the privacy and security of such data (collectively, “HIPAA”).  You represent and warrant that You have all rights to use and input such data into the Programs and acknowledge that data conversion and analysis performed with the Programs, including, among other things, transport of such data through use of the Programs as part of the Services, is subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage.  SES shall not be liable for any such errors, omissions, delays, or losses.  You are responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data.  You shall comply with all local, state, and federal laws pertaining to the use and disclosure of any data, including, without limitation, all privacy regulations and requirements under HIPAA set forth at 45 C.F.R. Part 164.  (b)  You hereby grant SES a fully-paid, royalty-free right to access data input to the Programs by You, including, without limitation, the contact information, including electronic mail addresses and Your identity certificates (the “Data”) for reporting, monitoring and other internal uses of SES, including, without limitation, as may be necessary to support the Programs and perform the Support Services and the marketing of the Programs and other services and products SES may offer or provide, provided however, that SES shall not store, transmit, disclose or allow access to any Data outside of the United States, unless You agree in writing for purposes such as treating patients that have legitimate care needs extended across national borders; such as a consult with a specialist in another country or to obtain records of care for a patient that occurred while the patient was in another country (the “Data Use License”).  SES may use the Data under the Data Use License only strictly in accordance with the privacy and security rules under HIPAA and that any disclosure of Data must be de-identified such that no individually-identified health information (“IIHI”), or any other form of protected health information (including IIHI, “PHI”) is disclosed to any person or party other than You, patient or other individual otherwise permitted access to such PHI under HIPAA.  You agree and acknowledge that installation and use of the Programs requires that You provide SES with access to Your information technology infrastructure to enable SES to access Data for use in accordance with the Data Use License.  (c) If You are a Covered Entity (as defined by HIPAA) or a Business Associate (as defined by HIPAA) of a Covered Entity, then SES is and at all times shall be and remain a Business Associate (as defined by HIPAA) of You.  The functionality provided by the Programs permits You to perform certain translation and transformation of health care data among and between various data formats and standards (the “Data Services”), however, under no circumstances under this Agreement is SES performing any Data Services for You or on Your behalf, nor shall SES be a clearinghouse, service bureau or other such similar entity or organization otherwise defined under HIPAA as a Covered Entity. The Data Use License shall survive any termination or expiration of the License or this Agreement.

 

5. Disclaimer of Warranty and Limited Warranty; Indemnity. (a) The Programs are licensed and provided on an “AS-IS” basis. SES expressly disclaims any and all warranties, express or implied, regarding or concerning the Programs or the results or output produced by the Programs.  You, not SES, are responsible for ensuring the correctness of Data entered during use of the Programs.  You, not SES, are responsible for ensuring the correctness of Data entered during use of the Programs and You acknowledge that You are responsible for compliance with all applicable statutory and regulatory requirements of HIPAA concerning the privacy, security, transmission and format of data.  You warrant that no use of the Programs shall make them consumer goods for purposes of federal or state warranty laws, and agree that they are not consumer goods for such purposes.  (b) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 5, SES MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.  NO REPRESENTATION OR OTHER AFFIRMATION OF FACT BY ANYONE SHALL BE DEEMED TO BE OR CREATE A WARRANTY FROM SES OR BY ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE PROGRAMS OR ANY SERVICES PROVIDED BY SES OR PROVIDED OTHERWISE THROUGH THIS SITE.  YOU COVENANT TO SAFEGUARD DATA, TO USE CAUTION AND TO NOT RELY IN ANY WAY ON THE FUNCTIONING OR PERFORMANCE OF THE PROGRAMS OR SERVICES PROVIDED BY SES OR OTHERWISE THROUGH THIS SITE. (c) If and only if You are a Covered Entity or are a Business Associate of a Covered Entity, SES represents and warrants that it shall comply with the terms and conditions of the Business Associate Agreement located here https://secureexsolutions.com/baa with respect to the security, handling, protection, use and privacy of PHI (the “BAA”).

 

6. Support Services. (a) So long as You timely pay all applicable Subscription Fees, Support Services, as described in paragraphs (i) and (ii) of this Section 6, will be provided in accordance with the Technical Support Services Policy set forth here https://secureexsolutions.com/tssp.html (i)  Software upgrades to the Programs, including Upgrades, will be provided to You as part of the Support Services, as they become generally available for release; and (ii) technical support services, (as set forth here https://secureexsolutions.com/tssp.html).  (b) You agree to provide SES broadband access to the computers, network environment, information technology infrastructure, including, among other things, the server or all servers upon which the Programs are installed by You for the purpose of allowing SES access adequate to permit SES to monitor the usage of the Programs from time-to-time and at any time and to provide the Support Services.

7. Ownership of the Programs. (a) You acknowledge and agree that the Programs and Services are the property of SES, that the entire right, title, and interest (including any interest arising out of copyright laws) in the Programs and all materials relating to the Programs and the Services belong to SES and are made available to You for use only in accordance with the License and that the Programs, Services, and information You may receive from SES in the course of use of the Programs and Services and when being provided the Support Services contain trade secrets and Confidential Information of SES protected under applicable law.  (b) All changes, modifications or improvements made or developed with regard to the Programs or Services by SES, whether or not made or developed at Your request, shall remain the property of SES and, upon disclosure or availability to or use by You, shall be deemed to have been part of the Programs and Services as of the date upon which you first made use of the Programs.  (c) You acknowledge and agree that (i) the Programs may include applications, products, materials, systems, data, techniques, processes, information, methodologies and the other information and services that are proprietary to third-party suppliers and vendors of SES (the “Third Party IP”); (ii) SES holds valid licenses for all Third Party IP sufficient to permit SES to grant you the rights provided in by the License and to permit You to use the Programs in accordance with the License; and (iii) You shall neither have nor obtain any rights in any Third Party IP under this Agreement except coincident to the License. (d) SES retains title and ownership to any and all copies of the Programs whether transmitted electronically or recorded on magnetic or optical media and all subsequent copies of the Programs, regardless of the form or media in or on which the original and other copies may exist.

 

8. Transfer of License. (a) You do not have the right to sell, assign or otherwise transfer copies of the Programs or any license in the Programs, except in connection with the merger, corporate reorganization or the sale of all or substantially all of its assets or to a parent or wholly owned subsidiary or successor to Your business.  Any permitted successor shall notify SES of its succession to Your rights and shall agree in writing to be bound by this Agreement. (b) You represent and warrant that You have all authorizations and permissions to procure the use of the Programs for Your entity or organization and all applicable and indicated physicians or health care providers enrolled or registered to use the Programs.

9. Damages; Injunctive Relief. You agree that, if any unauthorized copies of the Programs are made, or if the Programs are used in violation of this Agreement, SES shall have the right to seek an injunction against that unauthorized copying or use, in addition to any other rights to which SES may be entitled.

10. Limitation of Liability; Indemnification. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SES’S ENTIRE AGGREGATE LIABILITY TO YOU, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), SHALL BE LIMITED TO THE AMOUNT OF SUBSCRIPTION FEES PAID. UNDER NO CIRCUMSTANCES SHALL SES HAVE ANY LIABILITY TO YOU FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF GOODWILL, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT EVEN IF SES HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF.

 

You agree to indemnify and hold harmless SES and its shareholders, directors, officers and employees, (each,  an Indemnified Person”), from and against any losses, claims, damages, or liabilities, including reasonable legal expenses, arising out of any legal, administrative, or regulatory action, whether complete, pending or threatened, related to or arising out of this Agreement, the Programs and will pay or reimburse Indemnified Persons for all costs, fees, and expenses (including, without limitation, reasonable legal fees) incurred by such Indemnified Person in connection with investigating, preparing or defending any such action or claim (collectively a “Loss” or “Losses”).  The foregoing indemnity agreement shall be in addition to any rights that any Indemnified Person may have at common law or otherwise, including, without limitation, any right to contribution.

 

11. Miscellaneous.  (a) This Agreement represents the entire agreement between the parties as to its subject matter and shall be governed by and construed in accordance with the laws of the State of Maryland without regard to the conflicts of laws provisions thereof; provided, however that certain Programs subscribed to by You may have additional or supplemental terms and conditions to their use.  (b) Neither the Uniform Computer Information Transactions Act (“UCITA”) (if and to the extent enacted in any state), nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement.  To the extent UCITA is applicable notwithstanding the foregoing, SES and You agree to opt out of the applicability of UCITA pursuant to the “opt out” provisions contained therein.  (c) You agree that the Programs will not be shipped, transferred, or exported or reexported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations.  Specifically, and without limitation, You agree that the Programs will not be downloaded, accessed or otherwise exported or reexported to (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country or person to which the United States has embargoed goods.  By agreeing to this Agreement, You are certifying that You are not a national of one of these countries, or otherwise a person with whom the U.S. government has prohibited trade. (d) The Programs and any related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are defined in DFARS 277-7014(a)(1), as applicable, and as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 and DFARS 227-7202-1 through 252.227-7202-4, as applicable; and (ii) provided strictly in accordance with the terms and conditions of this the License hereunder in accordance with DFARS 227-7202-1 through 227-7202-4 and 48 C.F.R. §227.7202-1 through §227.7202-4 or subparagraphs (b)(1) and (2) of the Commercial Computer Software License at 48 C.F.R. §52.227-19, as applicable.  (e) Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions set forth in this Agreement. Unpublished-rights reserved under the copyright laws of the United States.  The manufacturer of the Programs is Secure Exchange Solutions, Inc.., 1700 Research Blvd., Ste. 220, Rockville, Maryland 20850.  (f) To the extent applicable, SES agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 U.S.C. §4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 C.F.R. Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference.  (g) Except as otherwise provided in this Agreement, this Agreement may be modified only in a writing signed by both parties; provided, however, that changes made by SES to the materials, policies, terms and conditions applicable to this Agreement or use of the Programs available to You through this web site shall be incorporated by reference into this Agreement upon publication to this web site without any action of either You or SES, including, but not limited to, any notice.  (h) Any and all notices required of SES may be made to You by electronic mail or other convenient means and notices generally applicable to all third parties similarly situated with You may be posted to this web site.  (i) Each such notice shall be effective when transmitted by SES regardless of when or if such notice is received by You.  (j) If any provision of this Agreement is alleged to be invalid or unenforceable, that provision shall be construed to have the broadest interpretation that would make it valid and enforceable.  Invalidity or unenforceability of one provision shall not affect any other provision of this Agreement.  (k) Failure or delay by either party in exercising any right or power under this Agreement shall not operate as a waiver of that right or power.