READ CAREFULLY: NURSE TECH, INC. (“NURSE TECH”) LICENSES THE SOFTWARE AND OTHER LICENSED MATERIALS ONLY ON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED OR REFERENCED IN THIS AGREEMENT.
By selecting the “I accept” button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Nurse Tech Materials,
(i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and
(ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity.
If Licensee is unwilling to accept this Agreement, or you do not have the right, power and authority to act on behalf of and bind such entity or yourself as an individual (if there is no such entity),
(a) DO NOT SELECT THE “I ACCEPT” BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT, AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE COPY OR USE ALL OR ANY PORTION OF THE NURSETECH MATERIALS; AND
(b) WITHIN THIRTY (30) DAYS FROM THE DATE OF ACQUIRING THE NURSE TECH MATERIALS, LICENSEE MAY RETURN THE NURSE TECH MATERIALS (INCLUDING ANY COPIES) TO THE ENTITY FROM WHICH THEY WERE ACQUIRED FOR A REFUND OF THE APPLICABLE LICENSE FEES PAID BY THE LICENSEE.
The words “Nurse Tech,” “Agreement” and “Licensee” and other capitalized terms used in this Agreement are defined terms. The definitions can be found in Exhibit A (if the terms are not defined in the main body of the Agreement).
1.1 License Grant. Subject to and conditioned on Licensee’s continuous compliance with this Agreement and payment of the applicable fees, Nurse Tech grants Licensee a nonexclusive, nonsublicensable, nontransferable, limited license to Install and Access the Licensed Materials in accordance with the other terms of this Agreement. This Agreement is sometimes referred to as the End User License Agreement (EULA).
1.2 Additional Terms. The Licensed Materials or LICENSED APPLICATION(S) (or portions thereof) may be subject to terms (e.g. terms accompanying such Licensed Materials or made available in connection with ordering, installing, downloading, accessing, using or copying such Licensed Materials) that are in addition to or different from the terms set forth in this Agreement, and Licensee agrees to comply with such terms,
1.3 Other Materials. If Nurse Tech provides or makes available to Licensee any additional materials associated with the Licensed Materials, including any corrections, patches, service packs, updates or upgrades to, or new versions of, the Licensed Materials (including Upgrades) or any Supplemental Materials or User Documentation for the Licensed Materials,
(a) suchadditional materials may include or be subject to other termsin addition to or different from the terms set forth in this Agreement (including, without limitation, additional or different fees, license terms, or restrictions on use), and Licensee agrees to comply with such terms, or
(b) if there are no other terms for such additional materials, they will be subject to the same terms (including, without limitation, the licenses, applicable License, and other terms of this Agreement) as the Licensed Materials to which such additional materials apply. In no event will the foregoing result in any rights with respect to Excluded Materials.
1.4 Authorized Users. Licensee may permit the Licensed Materials to be Installed and/or Accessed only by Licensee (except as otherwise designated in the applicable License), and any such Installation or Access will be subject to any other requirements imposed by this Agreement and the applicable License. Licensee will be responsible for compliance with this Agreement by Licensee and any other persons who may have Access to the Nurse Tech Materials through Licensee. Licensee is sometimes referred to herein as the End User.
1.5 Third-Party Licensed Materials. The Nurse Tech Materials may contain or be accompanied by third-party software, data or other materials that are subject to and provided in accordance with terms that are in addition to or different from the terms set forth in this Agreement. Such terms may be included or referenced in or with such third-party software, data or other materials (e.g., in the “About box”) or a web page specified by Nurse Tech (the URL for which may be obtained on Nurse Tech’s website or on request to Nurse Tech). Licensee agrees to comply with such terms. In addition, Licensee will take sole responsibility for obtaining and complying with any licenses that may be necessary to use third-party software, data or other materials that Licensee uses or obtains for use in conjunction with the Licensed Materials. Licensee acknowledges and agrees that Nurse Tech has no responsibility for, and makes no representations or warranties regarding, such third-party software, data or other materials or Licensee’s use of such third-party software, data or other materials.
1.6 Subscription. Nurse Tech may offer, and Licensee may elect to acquire, Subscriptions for the Licensed Materials licensed to Licensee under this Agreement (and such Subscriptions may include rights in addition to or different from those set forth in this Agreement). Any Subscriptions are subject to Nurse Tech’s terms therefor, which terms are set forth in the applicable Subscription Program Terms. Licensee agrees that if it requests, accepts, or makes use of any Subscription, Licensee will be bound by such terms, as they may be modified from time to time in accordance with the applicable Subscription Program Terms (and such terms, as so modified from time to time, are a part of and incorporated by reference into this Agreement), and Licensee agrees to comply with such terms. Licensee acknowledges that Nurse Tech may require a furtheracceptance of such terms as a condition to providing Subscriptions.
1.7 Services. Nurse Tech may provide, and Licensee may elect to receive or benefit from, certain Services from time to time. Any Services are subject to Nurse Tech’s terms therefor, which terms are set forth in the applicable Services Terms. Licensee agrees that if it requests, accepts, or makes use of any Services, Licensee will be bound by such terms, as they may be modified from time to time in accordance with the applicable Services Terms (and such terms, as so modified from time to time, are a part of and incorporated by reference into this Agreement), and Licensee agrees to comply with such terms. Licensee acknowledges that Nurse Tech may require a further acceptance of such terms as a condition to providing Services.
1.8 Nature of Licenses. Licensee acknowledges and agrees that when Licensee acquires a license of Licensed Materials, a Subscription or Services, Licensee’s acquisition is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written or otherwise) made by Nurse Tech regarding future features or functionality.
1.9 APIs. Licensee acknowledges and agrees that any API Information and Development Materials (unless otherwise specified by Nurse Tech in additional or different terms associated with such API Information or Development Materials)
(a) are confidential and proprietary to Nurse Tech,
(b) may not be distributed, disclosed or otherwise provided to third parties,
(c) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Licensed Materials to which the API Information or Development Materials relate, such as the development and support of applications, modules and components to operate on or with such Licensed Materials, and
(d) may only be Installed on the same Computer(s) where such Licensed Materials are permitted to be Installed. Notwithstanding the foregoing or Section 3 (All Rights Reserved), if Licensee develops any such applications, modules and components in accordance with this Agreement, nothing in this Agreement will prohibit Licensee from using such applications, modules and components with (and porting such applications, modules and components to) other software and hardware (including the software and hardware of third parties), if such applications, modules and components
(i) do not incorporate or embody any Development Materials or other Nurse Tech Materials (other than the API Information that was used in the development thereof in accordance with this Agreement) and
(ii) do not disclose the API Information. For purposes of this Section 1.9(APIs),
(A) “API Information” means the standard applications programming interface(“API”) information generally provided by Nurse Tech to licensees of the Licensed Materials that specifies the requirements for interfacing to (e.g., invoking or directing the functions of) the software included in such Licensed Materials; and
(B) “Development Materials” means SDKs and other toolkits, libraries, scripts, reference or sample code, and similar developer materials included in the Licensed Materials. API Information does not include any implementation of such interface information, any Development Materials, or any other software, module or component.
2. License Limitations/Prohibitions
2.1 Limitations and Exclusions.
2.1.1 No License Granted/Unauthorized Activities. The parties acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, no license is granted (whether expressly, by implication or otherwise) under this Agreement (and this Agreement expressly excludes any right)
(a) to Excluded Materials,
(b )to any Nurse Tech Materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this Agreement,
(c) for Installation of or Access to the Licensed Materials beyond the applicable license term (whether a fixed term or Subscription period) or outside the scope of the applicable License,
(d) for Installation of the Licensed Materials on any Computer other than a Computer owned or leased, and controlled by Licensee, unless otherwise authorized in writing by Nurse Tech,
(e)to distribute, rent, loan, lease, sell, sublicense, or otherwise provide all or any portion of the Nurse Tech Materials to any person or entity except as expressly set forth in this Agreement or as expressly authorized in writing by Nurse Tech,
(f) to provideor make available any features or functionality of the Nurse Tech Materials to any person or entity (other than to and for Licensee itself for the purpose specified in the applicable License Type), whether or not over a network and whether or not on a hosted basis,
(g) except as otherwise expressly provided with respect to a specific License Type, to Install or Access or allow the Installation of or Access to the Nurse Tech Materials over the Internet or other non-local network, including, without limitation, use in connection with a wide area network (WAN), virtual private network (VPN), virtualization, Web hosting, time-sharing, service bureau, software as a service, cloud or other service or technology,
(h) toremove, alter or obscure any proprietary notices, labels or marks in the Nurse Tech Materials,
(i) to decompile, disassemble or otherwise reverse engineer the Nurse Tech Materials, or
(j) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the Nurse Tech Materials for any purpose.
2.1.2 Licensed Materials as a Single Product. The Licensed Materials are licensed to Licensee as a single product and the applicable components may not be separated for Installation or Access (and all such components must be Installed and Accessed on the same Computer except as authorized in writing by Nurse Tech).
2.1.3 Territory. Except as otherwise authorized in writing by Nurse Tech, the licenses granted in this Agreement are granted only for the Territory. Nothing in this Agreement permits Licensee (including, without limitation, Licensee) to Install or Access the Licensed Materials outside of the Territory.
2.1.4 Effect of Unauthorized Use. Licensee will not engage in, and will not permit or assist any third party to engage in any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in this Section 2.1 (Limitations and Exclusions) (collectively, “Unauthorized Uses”). Any such Unauthorized Use, and any Installation of or Access to the Licensed Materials provided under this Agreement, outside of the scope of the applicable license grants (including, without limitation, outside the applicable License) or otherwise not in accordance with this Agreement, constitute or result in infringement of Nurse Tech’s intellectual property rights as well as a breach of this Agreement. Licensee will notify Nurse Tech promptly of any such Unauthorized Uses or other unauthorized Installation or Access.
2.2.1 Licensee may not
(i) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Nurse Tech in connection with the Nurse Tech Materials, or
(ii) Install or Access theNurse Tech Materials with anyproduct code,authorization code, serial number, or other copy-protection device not supplied by Nurse Tech directly or through a Reseller. Without limitation of the generality of the foregoing, Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove the Nurse Tech License Manager or any tool or technical protection measure provided or made available by Nurse Tech for managing, monitoring or controlling Installation of or Access to Nurse Tech Materials.
2.2.2 Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any usage restrictions, or to enable functionality disabled by Nurse Tech, in connection with the Excluded Materials. Licensee may not bypass or delete any functionality or technical limitations of the Nurse Tech Materials that (or that are designed to) prevent or inhibit the unauthorized copying of, Installation or Access to the Excluded Materials.
3. All Rights Reserved. Nurse Tech and its licensors retain title to and ownership of, and all other rights with respect to, the Nurse Tech Materials and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. Licensee has only the limited licenses granted with respect to the Licensed Materials expressly set forth in this Agreement, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the Nurse Tech Materials are licensed, not sold, and that rights to Install and Access the Licensed Materials are acquired only under the license from Nurse Tech. The structure and organization of Software included in the Nurse Tech Materials, any source code or similar materials relating to such Software, any API Information and Development Materials, and any other Licensed Materials identified as confidential or proprietary are valuable trade secrets of, and confidential and proprietary information to, Nurse Tech and its suppliers, and
(a) may not bedistributed, disclosed or otherwise provided to third parties, and
(b) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Licensed Materials.
4. Privacy; Use of Information; Connectivity
(b) Nurse Tech may provide information and data, including, without limitation, information and data about Licensee’s use of Nurse Tech Materials, Subscriptions, and Licensee’s support requests, to Nurse Tech affiliates, Resellers and other third parties in connection with the provision, maintenance, administration or usage of Licensed Materials, Subscription or Services or in connection with enforcement of any agreements relating to Licensed Materials, Subscription or Services; and
(c) Nurse Tech may make cross-border transfers of such information and data, including to jurisdictions with privacy or data protection laws that are less protective of Licensee than the jurisdiction in which Licensee is domiciled. Licensee acknowledges and agrees that such policies may be changed from time to time by Nurse Tech and that, effective upon posting on Nurse Tech’s web site or other written notice from Nurse Tech, Licensee will be subject to such changes.
4.2 Connectivity. Certain Licensed Materials may facilitate or require Licensee’s access to and use of content and services that are hosted on web sites maintained by Nurse Tech or by third parties. In some cases, such content and services may appear to be a feature or function within, or extension of, the Licensed Materials on Licensee’s Computer even though hosted on such web sites. Accessing such content or services and use of Licensed Materials may cause Licensee’s Computer, without additional notice, to connect automatically to the Internet (transitorily, intermittently or on a regular basis) and to communicate with a Nurse Tech or third-party web site — for example, for purposes of providing Licensee with additional information, features and functionality or to validate that the Licensed Materials and/or content or services are being used as permitted under this Agreement or other applicable terms. Such connectivity to Nurse Tech web sites is governed by Nurse Tech’s policies on privacy and data protection described in Sectio n4 (Privacy; Use of Information; Connectivity). Such connectivity to web sites of third parties is governed by the terms (including the disclaimers and notices) found on such sites or otherwise associated with the third-party content or services. Nurse Tech does not control, endorse, or accept responsibility for any such third-party content or services, and any dealings between Licensee and any third party in connection with such content or services, including, without limitation, such third party’s privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between Licensee and such third party. Nurse Tech may at any time, for any reason, modify or discontinue the availability of any third-party content or services. Access to and use of certain content and services (whether of Nurse Tech or third parties) may require assent to separate terms and/or payment ofadditional fees.
5. Limited Warranty and Disclaimers
5.1 Limited Warranty. Nurse Tech warrants that, as of the date on which the Licensed Materials are delivered to Licensee and for ninety (90) days thereafter (“Warranty Period”), the Licensed Materials will provide the general features and functions described in the User Documentation portion of the Licensed Materials. Nurse Tech's entire liability and Licensee’s exclusive remedy during the Warranty Period (“Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at Nurse Tech's option,
(i) to attempt to correct or work around errors, if any, or
(ii) to refund the license fees, if any, paid by Licensee and terminate this Agreement or the license specific to such Licensed Materials. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. NURSE TECH DOES NOT SEEK TO LIMIT LICENSEE’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
5.2 Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED INSECTION 5.1 (LIMITED WARRANTY), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NURSE TECH AND ITS SUPPLIERS MAKE, AND LICENSE ERECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY NURSE TECH MATERIALS, SUBSCRIPTION, OR SERVICES (PURSUANT TO SUBSCRIPTION OR OTHERWISE). ANY STATEMENTS OR REPRESENTATIONS ABOUT THE NURSE TECH MATERIALS AND THEIR FEATURES OR FUNCTIONALITY IN THE LICENSED MATERIALS OR ANY COMMUNICATION WITH LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING,NURSETECH DOES NOT WARRANT:
(a) THAT THE OPERATION OR OUTPUT OF THELICENSED MATERIALS WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, OR COMPLETE, WHETHER OR NOT UNDER SUBSCRIPTION OR SUPPORT BY NURSE TECH OR ANY THIRD PARTY;
(b) THAT ERRORS WILL BE CORRECTED BY NURSE TECH OR ANY THIRD PARTY; OR
(c) THAT NURSE TECH OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
6.1 Functionality Limitations. The Licensed Materials (except for Licensed Materials designed for non-commercial use, such as Nurse Tech Materials designed to be used for household or other consumer purposes or licensed only for purposes of educational or individual learning) are commercial professional tools intended to be used by trained professionals only. Particularly in the case of commercial professional use, the Licensed Materials are ot a substitute for Licensee’s professional judgment or independent testing. The Licensed Materials are intended only to assist Licensee with its nursing and clinical work and/or other activities and are not a substitute for Licensee’s own independent nursing, clinical work, and/or other activities, including those with respect to patient care. Due to the large variety of potential applications for the Licensed Materials, the Licensed Materials have not been tested in all situations under which they may be used. Nurse Tech will not be liable in any manner whatsoever for the results obtained through use ofthe Licensed Materials. Persons using the Licensed Materials are responsible for the supervision, management, and control of the Licensed Materials and the results of using the Licensed Materials. This responsibility includes, without limitation, the determination of appropriate uses for the Licensed Materials and the selection of the Licensed Materials and other computer programs and materials to help achieve intended results. Persons using the Licensed Materials are also responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy, completeness, and other characteristics of any output of the Licensed Materials, including, without limitation, all items designed with the assistance of the Licensed Materials. Licensee further acknowledges and agrees that the Licensed Materials form part of Licensee’s total unique hardware and software environment to deliver specific functionality, and that the Licensed Materials provided by Nurse Tech may not achieve the results Licensee desires within Licensee’s nursing, clinical work, and/or patient care constraints.
7. Limitations of Liability
7.1 Limitation on Type and Amount of Liability. IN NO EVENT WILL NURSE TECH OR ITS SUPPLIERS HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY BODILY HARM, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS, USE, REVENUE, OR DATA; OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY). IN ADDITION, THE LIABILITY OF NURSE TECH AND ITS SUPPLIERS ARISING OUT OF OR RELATING TO ANY NURSE TECH MATERIALS, SUBSCRIPTION OR SERVICES WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY LICENSEE FOR SUCH NURSE TECH MATERIALS, SUBSCRIPTION,OR SERVICES, RESPECTIVELY.
7.2 Application of and Basis for Limitations. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF NURSE TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. ALSO, LICENSEE AGREES THAT THE LICENSE, SUBSCRIPTION AND SERVICES FEES AND OTHER FEES CHARGED BY NURSE TECH AND PAID BY LICENSEE ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION 7(LIMITATIONS OF LIABILITY )AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION 7(LIMITATIONS OF LIABILITY) ARE ANESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
8. Term and Termination
8.1 Term; Termination or Suspension. Each license under this Agreement, with respect toeach specific set of Licensed Materials covered by this Agreement, will become effective as of the latest to occur of:
(a) this Agreement becoming effective,
(b) payment by Licensee of the applicable fees, excluding licenses (such as evaluation licenses) where no fees are required,
(c) delivery of the specific Licensed Materials, and
(d) in the case of Nurse Tech Materials provided in connection with a Subscription, upon commencement of the applicable Subscription period. Each of Nurse Tech or Licensee may terminate this Agreement, Licensee’s license as to Licensed Materials, Licensee’s Subscription, and/or the provision of Services relating to the Licensed Materials if the other party is in breach of this Agreement and fails to cure such breach within ten (10) days after written notice of the breach. In addition, Nurse Tech may, as an alternative to termination, suspend Licensee’s license as to the Licensed Materials, Licensee’s Subscription, the provision of Services relating to the Licensed Materials, and/or other Nurse Tech obligations or Licensee rights under this Agreement (or under other terms, if any, relating to materials associated with the Licensed Materials), if Licensee fails to make a payment to Nurse Tech or a Reseller or otherwise fails to comply with the provisions of this Agreement or other terms relating to any such license, Subscription, Services, or other associated materials. Nurse Tech may also terminate this Agreement if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee’s creditors. This Agreement will terminate automatically without further notice or action by Nurse Tech if Licensee goes into liquidation. Licensee acknowledges and agrees that Nurse Tech may assign or sub-contract anyof its rights or obligations under this Agreement.
8.2 Effect of Termination of Agreement or License. Upon termination or expiration of this Agreement, the licenses granted hereunder will terminate. Upon termination or expiration of any license granted to Licensee, Licensee must cease all use of Nurse Tech Materials to which such license applies, any Subscription (including, without limitation, associated services), and any Services and Uninstall all copies of the Nurse Tech Materials. At Nurse Tech’s request, Licensee agrees to destroy or return to Nurse Tech or the Reseller from which they were acquired all Nurse Tech Materials. Nurse Tech reserves the right to require Licensee to show satisfactory proof that all copies of the Nurse Tech Materials have been Uninstalled and, if so requested by Nurse Tech, destroyed or returned to Nurse Tech or the Reseller from which they were acquired. If Licensee’s Subscription is terminated or expires, but this Agreement and Licensee’s license to the Licensed Materials remains in effect, any rights of Licensee based on the Subscription (including, without limitation, rights with respect to Previous Versions) will terminate, and (unless otherwise authorized by the Subscription Program Terms) Licensee must comply with the obligations of Section 1.2.1 (Effect of Upgrades) with respect to (including the obligations to cease use of, Uninstall and destroy or return) all copies of such Previous Versions.
8.3 Survival. Sections 1.3 (Additional Terms), 1.4 (Other Materials), 1.5 (Authorized Users), 1.6 (Third-Party Licensed Materials), 1.11 (APIs), 2.1.1 (No License Granted/Unauthorized Activities), 2.1.4 (Effect of Unauthorized Use), 2.2 (Circumvention), 3 (All Rights Reserved), 4 (Privacy; Use of Information; Connectivity), 5.2 (Disclaimer), 6 (Warnings), 7 (Limitations of Liability), 8 (Term and Termination), and 9 (General Provisions) and Exhibit A will survive and termination or expiration of this Agreement.
9. General Provisions
9.1 Notices. Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS, FedEx or DHL), except that Licensee may not provide notice to Nurse Tech of a Nurse Tech breach or provide notice of termination of this Agreement by electronic mail. Notices from Nurse Tech to Licensee will be effective
(a) in the case of notices by email, one (1) dayafter sending to the email address provided to Nurse Tech, or
(b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Nurse Tech.
9.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California (and, to the extent controlling, the federal laws of the United States). The laws of the State of California shall govern without reference to the conflicts-of-laws rules thereof. In addition, each party agrees that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the Superior Court of the State of California, County of Alameda, or the United States District Court for the Northern District of California in San Francisco. Nothing in the foregoing will prevent Nurse Tech from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur.
9.3 No Assignment; Insolvency. Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without Nurse Tech's prior written consent, which may be withheld in Nurse Tech's sole and absolute discretion, and any purported assignment by Licensee will be void. In the context of any bankruptcy or similar proceeding, this Agreement is and will be treated as an executory contract of the type described by Section 365(c)(1) of Title 11 of the United States Code and may not be assigned without Nurse Tech's prior written consent, which may be withheld inNurse Tech's sole and absolute discretion.
9.4 Nurse Tech Subsidiaries and Affiliates. Licensee acknowledges and agrees that Nurse Tech may arrange to have its subsidiaries and affiliates engage in activities in connection with this Agreement, including, without limitation, delivering Nurse Tech Materials and providing Subscriptions and Services, provided that Nurse Tech (and not such subsidiaries and affiliates) will remain subject to the obligations of Nurse Tech under this Agreement. Licensee also agrees that Nurse Tech’s subsidiaries and affiliates may enforce (including taking actions for breach of) this Agreement.
9.5 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, orunenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.
9.6 No Waiver. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
9.7 Audits. Licensee agrees that Nurse Tech has the right to require an audit (electronic or otherwise) of the Nurse Tech Materials and the Installation thereof and Access thereto. As part of any such audit, Nurse Tech or its authorized representative will have the right, on fifteen (15) days’ prior notice to Licensee, to inspect Licensee’s records, systems and facilities, including machine IDs, serial numbers and related information, to verify that the use of any and all Nurse Tech Materials is in conformance with this Agreement. Licensee will provide full cooperation to enable any such audit. If Nurse Tech determines that Licensee’s use is not in conformity with the Agreement, Licensee will obtain immediately and pay for a valid license to bring Licensee’s use into compliance with this Agreementand other applicable terms and pay the reasonable costs of the audit. In addition to such payment rights, Nurse Tech reserves the right to seek any other remedies available at law or in equity, whether under this Agreement or otherwise.
9.8 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations. If Licensee purchased the license for the Licensed Materials in Canada, Licensee agrees to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsique tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.
9.9 Construction. Ambiguities in this Agreement will not be construed against the drafter.
9.10 Force Majeure. Nurse Tech will not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond Nurse Tech's reasonable control.
9.11 U.S. Government Rights. All Nurse Tech Materials provided to the U.S. Government are provided with the same commercial license rights and restrictions described herein.
9.12 Export Control. Licensee acknowledges that the Nurse Tech Materials are subject to the export control laws and regulations of the United States (“U.S.”) and will abide by those laws and regulations. Under U.S. export control laws and regulations, the Nurse Tech Materials may not be downloaded or otherwise exported, re-exported, or transferred to restricted countries, to restricted end users or for restricted end uses. Licensee represents, warrants and covenants that Licensee
(a) is not located in, or a resident or anational of, a restricted country;
(b) are on any of the U.S. government lists of restrictedend users; and
(c) will, unless otherwise authorized under U.S. export control regulations, use Nurse Tech Materials in any restricted end use, including, without limitation, nursing, patient care, or other activities related to health care applications. Licensee understands that the requirements and restrictions of U.S. law as applicable to Licensee may vary depending on the Nurse Tech Materials downloaded and may change over time, and that, to determine the precise controls applicable to the Nurse Tech Materials, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
9.13 Entire Agreement. This Agreement and any other terms referenced in this Agreement(such as the Subscription Program Terms and the Services Terms) constitute the entire agreement between the parties (and merges and supersedes any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof, except that particular Nurse Tech Materials may be subject to additional ordifferent terms associated with such Nurse Tech Materials. The parties acknowledge that, in entering into this Agreement, they are not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in this Agreement. Licensee acknowledges and agreesthat Nurse Tech may add to or change the Subscription Program Terms and the Services Terms from time to time, provided that Nurse Tech will provide written notice of the additions or changes (and may allow Licensee not to renew, may permit Licensee to terminate, and may offer other options with respect to Subscriptions or Services) beforethe additions or changes are effective as to Licensee. In the event of a conflict between this Agreement and any other terms of Nurse Tech (including, without limitation, the Subscription Program Terms, the Services Terms, or such additional or different terms), the other terms will apply. Terms stipulated by Licensee in any communication by Licensee which purport to vary this Agreement or such other terms will be void and of no effect unless agreed in a writing signed by an authorized representative of Nurse Tech. Any other modifications to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of Nurse Tech.
9.14 Apple Computer’s Minimum Terms of Developer’s End-User License Agreement. Notwithstanding any other provisions to the contrary, nothing in this EULA shall be construed to be inconsistent with the Apple's Minimum Terms of Developer's End-User License Agreement, which is incorporated by reference, and in the event of any conflict, the terms of the latter shall prevail. That Agreement is included as a reference herewith.
10. ADDITIONAL TERMS
10.1 Definitions. (1) “Computing Device” means (i) a single electronic device with a maximum of four (4) CPUs (regardless of the number of cores in each CPU) and/or four (4) GPUs (regardless of the number of cores in each GPU), each CPU having one or more microprocessor, that accept information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).
10.2 Licensee agrees to defend, indemnify and hold harmless Nurse Tech and its affiliates from and against any and all damages, costs, losses, liabilities, expenses and settlement amounts incurred in connection with any suit, claim or action by any third party alleging that the Licensed Materials or Nurse Tech were any responsible for any bodily injury toany third party.
1. “Access” or “Accessible” means, with respect to a computer program or other materials,
(a) to useor execute the computer program or other materials or
(b) to use or otherwise benefit from thefeatures or functionality of the computer program or other materials.
2. “Agreement” means this License and Services Agreement, including all exhibits and schedules thereto, as the License and Services Agreement may be amended from time to time in accordance with the terms thereof.
3. “Authorized User” means any individual person who Installs or Accesses, or is authorized to Install or Access, any of the Licensed Materials.
4. “Nurse Tech” means Nurse Tech, Inc., a Delaware corporation. “Nurse Tech Materials” means any materials distributed or made available by Nurse Tech, directly or indirectly, including Software, Supplemental Materials, User Documentation and Excluded Materials (whether or not licensed to Licensee).
6. “Computer” means (i) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).
7. “Evaluation Purposes” means purposes of evaluation and demonstration of the capabilities of the Software or Supplemental Materials but excludes competitive analysis and any commercial, professional, or other for-profit purposes.
8. “Excluded Materials” means any materials, including Software,Supplemental Materials or User Documentation (and including, without limitation, any computer programs, modules or components of a computer program, functionality or features of a computer program, explanatory printed or electronic materials, content or other materials, if any), that may be provided or become available to Licensee, by any means, or that are on any media delivered to Licensee, for which Licensee has not paid (and continued to pay) the applicable fees. Licensee acknowledges that Excluded Materials are included on media or via download for convenience of the licensing mechanism used by Nurse Tech, and inclusion does not in any way authorize, expressly or impliedly, a right to use such Excluded Materials.
9. “Install” and “Installation” means, with respect to a computer program or other materials, to copy the program or other materials onto a hard disk or other storage medium.
10. “Licensed Materials” means Software, Supplemental Materials and User Documentation (a)downloaded by clicking on the “I accept” button or other button or mechanism associated with this Agreement or by otherwise indicating assent to this Agreement, (b) delivered prepackaged with this Agreement, or (c) otherwise accompanied by this Agreement, provided that (i) in the case of Software, the Software is identified in an applicable License Identification, and (ii) Licensee has paid (and continues to pay) the applicable fees. Licensed Materials also includes Supplemental Materials and User Documentation that Nurse Tech provides or makes available to Licensee for use with Software licensed under this Agreement if there are no separate terms for such materials specified by Nurse Tech. Licensed Materials includes, without limitation, any error corrections, patches, service packs, updates and upgrades to, and new versions of, the Licensed Materials that Nurse Tech provides or makes available to Licensee under Licensee’s then-current license. Licensee acknowledges that availability of Upgrades and new versions may be subject to additional fees and the Subscription Program Terms. In addition, Licensed Materials includes, without limitation, any Previous Versions and other Nurse Tech Materials that Licensee receives or retains pursuant to the Subscription Program Terms, but only for so long as and to the extent expressly authorized by the Subscription Program Terms. Notwithstanding the foregoing (or any other provision of this Agreement), Licensed Materials in all cases excludes Excluded Materials.
11. “Licensee” means (a) the company or other legal entity on behalf of which Nurse Tech Materials are acquired, if the Nurse Tech Materials are acquired on behalf of such an entity (e.g., by an employee, independent contractor, or other authorized representative), or (b) if there is no such entity, the individual who accepts this Agreement (e.g., by selecting the “I accept” button or other button or mechanism associated with this Agreement or otherwise indicating assent to this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Nurse Tech Materials). For clarification, “Licensee” refers only to a single, specifically identified legal entity or individual, and does not include any subsidiary or affiliate of any such legal entity or individual or any other related person.
12. “Personal Learning Purposes” means (i) personal learning as a Student or (ii) in the case of a non-Student, personal learning, excluding (a) in-person or online classroom learning in any degree-granting or certificate granting program, and (b) learning related to any commercial, professional or other for-profit purposes.
13. “Previous Versions” means, as to any then-current release of Licensed Materials, a prior release ofthe Licensed Materials as to which such then-current release is a successor or substitute (as determined by Nurse Tech).
14. “Reseller” means a distributor or reseller authorized directly or indirectly by Nurse Tech to distribute authentic Nurse Tech Materials to Licensee.
15. ”Services” means services (including the results of services) provided or made available by NurseTech, including, without limitation, support services, storage, simulation and testing services, training and other benefits, but excluding services provided or made available as part of Subscription.
16. “Services Terms” means the terms for Services set forth at a location where a user may order or register for, or that is displayed in connection with ordering or registering for, such Services (e.g., a web page) or, if there are no such terms, at https://www.nursetech.com/;egal/termsofuse/ or any successor or supplemental web page of Nurse Tech.
17. “Software” means a computer program, or a module or component of a computer program, distributed or made available by Nurse Tech. The term “Software” may also refer to functions and features of a computer program.
18. “Stand-alone Basis” means (i) the Licensed Materials are Installed on a single Computer and (ii)the Licensed Materials cannot be Installed on, or operated, viewed or otherwise Accessed from or through, any other Computer (e.g., through a network connection of any kind).
19. “Student” means an individual person who is, (i) at the time of Installation of Licensed Materials, enrolled (a) at a recognized degree-granting or certificate-granting educational institution for three (3) or more credit hours in a degree-granting or certificate granting education program or (b) in a nine (9) month or longer certificate program and (ii) upon request by Nurse Tech is able to provide proof of such enrollment.
20. “Subscription” is the program offered generally b yNurse Tech under which Nurse Tech provides (among other things) updates and upgrades to, new versions of, and certain other support, services and training relating to Nurse Tech Materials.
21. “Supplemental Materials” means materials, other than Software and related User Documentation, that are distributed or made available by Nurse Tech for use with Software. Supplemental Materials include, without limitation, content such as task, protocol, nursing assessment and shift definitions.
22. “Territory” means the United States.
23. “Uninstall” means to remove or disable a copy of Nurse Tech Materials from a hard drive or other storage medium through any means or otherwise to destroy or make unusable a copy of the Nurse Tech Materials.
24. “Upgrade” means a full commercial version of Licensed Materials (a) which is a successor to orsubstitute for a prior release of such Licensed Materials (and may incorporate error corrections, patches, service packs and updates and upgrades to, and may enhance or add to the features or functionality of, the prior release),(b) is provided to a Licensee who has previously licensed the applicable prior release from Nurse Tech and (c) for which Nurse Tech generally charges aseparate fee or makes available solely to customers under Subscription. An Upgrade does not include Nurse Tech Material that Nurse Tech treats as a separate product. Whether Nurse TechMaterials are an Upgrade is determined by Nurse Tech.
25. “User Documentation” means the explanatory or instructional materials for Software or Supplemental Materials (including materials regarding use of the Software or Supplemental Materials), whether in printed or electronic form, that Nurse Tech or a Reseller incorporates in the Software or Supplemental Materials (or the packaging for the Software or Supplemental Materials) or otherwise provides to its customers when or after such customers license, acquire or Install the Software or Supplemental Materials.
1. Exhibit B
Minimum Terms of Developer’sEnd-User License Agreement
1. Acknowledgement: The parties hereby acknowledge that the EULA is concluded between Nurse Tech and the end-user only, and not with Apple, and Nurse Tech, not Apple, is solely responsible for the Licensed Application and the content thereof. The parties acknowledgethat they have had the opportunity to review the App Store Terms of Service as of the Effective Date.
2. Scope of License: The license granted to the end-user for the Licensed Application is limited to a non-transferable license to use the Licensed Application on any iPhone or iPod touch that the end-user owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Maintenance and Support: Nurse Tech shall be solely responsible for providing any maintenance and support services, if any, with respect to the Licensed Application, as specified in the EULA, or as required underapplicable law. The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.
4. Warranty: Nurse Tech shall be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Licensed Application to conform to any applicable warranty, the end-user may notify Apple, and Apple will refund the purchase price for the Licensed Application to that end-user; and that, to the maximum extent permittedby applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will beNurse Tech’s sole responsibility, if any.
5. Product Claims: Nurse Tech and the end-user acknowledge that Nurse Tech, not Apple, is responsible for addressing any claims of the end-user or any third party relating to the Licensed Application or the end-user’spossession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Nothing contained herein shall limit Nurse Tech’s liability to the end-user beyond what is permitted by applicable law.
6. Intellectual Property Rights: Nurse Techand the end-user acknowledgethat, in the event of any third party claim that the Licensed Application or the end-user’s possession and use of that Licensed Application infringes that third party’s intellectual property rights, Nurse Tech, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Legal Compliance: The end-user represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
8. Developer Name and Address: any end-user questions, complaints or claims with respect to the Licensed Application should be directed to Nurse Tech, Inc. contact information: (415) 861-4500, firstname.lastname@example.org
9. Third Party Beneficiary: Nurse Tech and the end-user acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and, upon the end-user’s acceptance of the terms and conditions of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against the end-user as a third party beneficiary thereof.