This End User License Agreement, including any Quote(s) which are incorporated by this reference (this "Agreement"), is a binding agreement between sim2grow LLC ("we" or “us”) and the person or entity identified on the Quote as the licensee of the Application ("you").
WE PROVIDE THE SYSTEM SOLELY ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON IN THE APP YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION IDENTIFIED IN THE QUOTE AND TO BIND THE ORGANIZATION TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL THE APPLICATION OR USE THE SYSTEM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY APPLICATION THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF OUR APPLICATION.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Application" means our medication administration system and associated software for which you are purchasing a license, as further defined in the Quote.
"Authorized Users" means all users from your organization who will utilize the System.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"License Fees" means the license fees, including all taxes thereon, paid or required to be paid by you for the license granted under this Agreement.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
"Physical Goods" means the physical components of the System which are provided by us to you for the purpose of operating the Application. This includes:
Mobile Medication Cart (if included in Quote)
Pre-printed medication tags and medication vials
Apple iPad case(s)
3D Barcode Scanner
iPad(s) (total number as indicated in Quote) (referred to throughout this Agreement as “Tablet”)
"Quote" means the proposal or price quote created by us, which you have accepted, for your purchase of the license for the Application and Physical Goods granted under this Agreement.
"System" means the Application and Physical Goods collectively.
"Tablet" means an Apple iPad, which is provided as part of the Physical Goods, which is the sole device on which the Application will be installed. We make no claims of any rights to the name or hardware owned by Apple. The Tablet is referenced solely for the purpose of identifying the device on which the Application will be installed.
"Term" has the meaning set forth in Section 11.
"Third Party" means any Person other than you or us.
2. License Grant and Scope. Subject to and conditioned upon your payment of the License Fees and your compliance with this Agreement, we hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the System for your institutional, non-commercial purposes. This license grants you the right to:
(a) Use the Application as properly installed on the Tablet(s) in accordance with this Agreement. Such use is permitted only on the Tablet(s) on which the Application is installed.
(b) Use the Physical Goods provided in connection with the Application for the purpose of teaching and educating by your Authorized Users.
3. Third-Party Materials. The Physical Goods may include software, content, data, or other materials, including related documentation, that are owned by Persons other than us and that are provided to you on licensee terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Licenses"). You are bound by and shall comply with all Third-Party Licenses. If you breach a Third-Party License, it will be considered a breach of this Agreement.
4. Use Restrictions. You, and your Authorized Users, agree not to license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose, or otherwise commercially exploit the Application or make the Application available to any Third Party, other than an Authorized User. More specifically, neither you nor your Authorized Users will directly or indirectly:
(a) use (including make any copies of) the Application the scope of the license granted in this Agreement;
(b) provide any Third Party, other than an Authorized User, with access to or use of the Application:
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(d) combine the Application or any part thereof with, or incorporate the Application or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Application, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(h) use the Application in violation of any law, regulation, or rule; or
(i) use the Application or System for purposes of competitive analysis of the Application or System, the development of a competing software product or service, or any other purpose that is to our commercial disadvantage.
5. Responsibility for Use of Application. You are responsible and liable for all uses of the Application and System licensed to you. Specifically, you are responsible and liable for all actions and failures to take required actions with respect to the System by your Authorized Users or by any other Person to whom your or any of your Authorized Users may provide access to or use of the Application, whether such access or use is permitted by or in violation of this Agreement.
6. Compliance Measures. You may only use the Application on the Tablet provided as part of the Physical Goods. For compliance purposes, if you attempt to use it on a different device, the Application will not be functional.
7. Maintenance and Support.
(a) Subject to Section 7(c), the license granted hereunder entitles you to the basic software maintenance and support services for the period indicated in the Quote; and thereafter, solely if you purchase additional support services.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, "Updates"), which we may make available during the period listed in the Quote. We may develop and provide Updates in its sole discretion, and you agree that we have no obligation to develop any Updates at all or for particular issues. You acknowledge that we may require that you provide certain files directly to us for updates. Maintenance and support services do not include any new version or new release of the Application that we may issue as a separate or new product, and we may determine whether any issuance qualifies as a new version, new release, or Update in our sole discretion.
(c) We reserve the right to condition the provision of maintenance and support services, including all or any Updates, on your acceptance of this Agreement. We have no obligation to provide maintenance and support services, including Updates:
(i) if you are in breach under this Agreement; or
(ii) for any Application that has been modified other than by us, or that is being used with any hardware, software, configuration, or operating system not expressly authorized by us in writing.
8. Intellectual Property Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto, other than to use the same System in accordance with the license granted under this Agreement. We reserve and shall retain our entire right, title, and interest in and to the application and all Intellectual Property Rights arising out of or relating to the Application, except as expressly granted to you in this Agreement. You shall safeguard the Application (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You agree to promptly notify us if you become aware of any infringement of our Intellectual Property Rights in the Application and fully cooperate with us in any legal action taken by us to enforce our Intellectual Property Rights.
9. PAYMENT. All License Fees are payable in advance in the manner set forth in the Quote and are non-refundable. All License Fees are due within 30 days of your receipt of the invoice. Late payments will be charged 5% interest for the first 30 days past-due and each subsequent 30 days of delinquency will be an additional 5% interest charged on top of the total price. All orders will be invoiced and/or charged on the day in which the order is shipped.
ALL SALES OF THE SYSTEM ARE FINAL AND NON-REFUNDABLE.
Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
10. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Quote or until terminated as set forth herein (the "Term").
(b) You may terminate this Agreement by ceasing to use and destroying all copies of the Application.
(c) We may terminate this Agreement, effective upon written notice to you, if you breach this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fourteen (14) days after we provide written notice thereof.
11. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.All warranties regarding the Physical Goods are provided separately. Please see separate Warranty information on Physical Goods.
THE APPLICATION IS PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET THE YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE APPLICATION; 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; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL OUR AND OUR AFFILIATES' COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID AS LICENSE FEES TO US PURSUANT TO THIS AGREEMENT.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of Green County in the State of Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth in the Quote shall be effective service of process for any suit, action, or other proceeding brought in any such court.
(b) We will not be responsible or liable to you, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or your equipment, loss and destruction of property, or any other circumstances or causes beyond our reasonable control.
(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Quote.
(d) This Agreement, together with the Quote, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between you and us with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without our prior written consent, which consent we may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving your (regardless of whether you are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which our prior written consent is required. No delegation or other transfer will relieve you of any of your obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. We may freely assign or otherwise transfer all or any of our rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(g) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. The terms of this Agreement cannot be changed by your institution’s purchase order. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Quote referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.