END-USER LICENSE AGREEMENT FOR LICENSOR SOFTWARE:
IMPORTANT – READ CAREFULLY BEFORE PURCHASING, INSTALLING, AND/OR USING ANY SOFTWARE OR SERVICES FROM LICENSOR.
THIS END-USER LICENSE AGREEMENT (THIS “EULA” OR THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR ENTITY, HEREAFTER REFERRED TO AS “YOU, ” OR “LICENSEE,” ) AND ADVANCED PROVIDER SOLUTIONS, LLC (HEREAFTER REFERRED TO AS “ADVANCED PROVIDER SOLUTIONS,” “WE,” OR “LICENSOR”) FOR ANY SOFTWARE OR SERVICES, PURCHASED OR OBTAINED THROUGH LICENSOR OR ANY PARTNER OR RETAILER, WHICH MAY INCLUDE COMPUTER PROGRAMMING CODE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, AND “ONLINE” OR ELECTRONIC DOCUMENTATION. BY (1) ENTERING YOUR CREDIT CARD AND OTHER IDENTIFYING INFORMATION, (2) SUBMITTING AN ORDER THROUGH THE PAYDC.COM WEB SITE, BY PHONE, OR ANY OTHER METHOD DIRECTLY LINKED TO LICENSOR, THROUGH ANY THIRD PARTY AFFILIATED WEB SITE, RETAIL STORE, OR ANY OTHER METHOD OF SELLING SOFTWARE OR SERVICES FOR LICENSOR, AND/OR (3) DOWNLOADING, INSTALLING, COPYING, AND/OR OTHERWISE USING ANY SOFTWARE AND/OR SERVICE PROVIDED BY LICENSOR, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER TO PURCHASE ANY SOFTWARE AND/OR ANY SERVICE, DOWNLOAD, INSTALL, COPY OR USE ANY SOFTWARE AND/OR ANY SERVICE. YOU AGREE THAT BY SUBMITTING AN ORDER TO PURCHASE ANY SOFTWARE AND/OR ANY SERVICE, COPYING, INSTALLING OR USING ANY SOFTWARE AND/OR USING ANY SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE LEGALLY BOUND BY ITS TERMS AS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, SUPERSEDING ALL PRIOR OR EXISTING UNDERSTANDINGS, AGREEMENTS, LETTERS OF INTENT, COMMUNICATIONS, PROPOSALS AND PROMISES (WHETHER IN WRITING OR ORAL) RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. YOU ALSO STATE THAT YOU ARE THE OWNER OF THE CREDIT CARD USED FOR PURCHASE. ANY ATTEMPTS TO USE CREDIT CARDS FOR FRAUDULENT PURPOSES TO LICENSOR WILL BE PUNISHABLE BY ALL LAWS AND PENALTIES. LICENSOR WILL PROSECUTE ANY FRAUDULENT ACTIVITY TO THE FULLEST EXTENT OF THE LAW.
All software of LICENSOR or its Partners is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any software of LICENSOR subject to this Agreement is licensed or sub-licensed.
“Material” means any material, including but not limited to any training module or documentation, that is provided or made available to you by or on behalf of LICENSOR and that relates to any software that is subject to this Agreement.
“Service” means any service provided by or on behalf of LICENSOR relating to any software that is subject to this Agreement, including but not limited to any subscription service for software and any support service.
“PayDCTM Software” means any software provided or made available by Advanced Provider Solutions, LLC including but not limited to any web-based management system for the healthcare industry, called “PayDC” or “Advanced Provider Solutions”, or with the PayDCTM or Advanced Provider SolutionsTM trademark, together with your interface and any software provided by Advanced Provider Solutions, LLC and loaded onto one or more of your computers, including but not limited to the thin-client portion of such software to be downloaded from the Internet onto one or more of your computers in order for you to be able to use such software on the Internet. For the avoidance of doubt, PayDCTM Software includes any and all modules that you agree to licenseor sub-license under this Agreement, including but not limited to any documentation, scheduling, billing, financial planning, claims processing, reporting, clearinghouse or meaningful use module of the PayDCTM Software.
ACCEPTANCE AND MODIFICATION OF THE TERMS OF THIS EULA:
If you do not agree to the terms and conditions of this EULA (the “Terms”), you should not place an order, download, and/or install any software from LICENSOR or use any software or any Service from LICENSOR. By ordering, downloading, installing, copying and/or using any software or Service from LICENSOR you are stating explicitly that you have read, understood, and agree to be bound by all of the Terms.
The most current version of the Terms can be viewed by you at any time by accessing your account provided by LICENSOR and clicking on the hyperlink Terms of End-User License Agreement. You should periodically check the Terms for modifications.
LICENSOR reserves the right to modify the Terms at any time. If any of the Terms are modified by LICENSOR, LICENSOR will post a notice stating that the Terms have been modified and such notice will appear when you access your account provided by LICENSOR. Such notice will appear when you access your account for at least thirty (30) days after the effective date of the modified Terms. Any changes to the previous version of the Terms will be highlighted when you view the Terms by clicking on the hyperlink Terms of End-User License Agreement after you access your account. The modified Terms will supersede all prior versions of the Terms. Your continued use of any software or any Service of LICENSOR after any of the Terms are modified constitutes your agreement to be bound by the Terms as modified.
1. LICENSE: All software that is provided or made available to you by LICENSOR or that you obtain a subscription from LICENSOR to use on the Internet is licensed for use by two (2) users per serial number or subscription unless you enter into a separate agreement with LICENSOR for more users, which agreement shall be an addendum to and part of this Agreement and shall set forth the number of additional users and the additional fees for such additional users. The additional monthly charges for additional users will be billed as part of the fees for the software licensed under this Agreement, such as part of the subscription fees for such software. LICENSOR has the right to increase the fees for the software licensed under this Agreement and the fees for additional users from time to time with notice. You may not reproduce any of the software subject to this Agreement or any portion of such software for sale, trade, or other use for any person not listed under the original purchase. Any and all instances of piracy will result in loss of use of software, Services, and subscriptions provided through LICENSOR with no refund, and may result in legal prosecution of all parties involved. LICENSOR reserves the right to monitor all software usage for evidence. You will not disclose or provide access to any software subject to this Agreement or any portion of such software to any third party and will not allow any third party to use any software subject to this Agreement or any portion of such software.
2. TRAINING: You are entitled to training for you and your staff. Training is free of charge for the first 180 days (six months) after you sign your subscription form. We strongly encourage you to have all of your staff trained on the software during this time. Training sessions are scheduled in advance and generally last about 1 hour.
Training may be provided on-line or in-person in the sole discretion of LICENSOR and at the location selected by LICENSOR in its sole discretion. Additional costs may apply for onsite training.
If you or your employees need additional training after expiration of six (6) months from the start of the subscription then an additional training fee will apply. The additional training fee will be based on an hourly rate of $75. The additional monthly charges for additional training will be billed separately but at the same time as the fees under this Agreement for the software, such as subscription fees. LICENSOR has the right to increase the charges for additional training services from time to time with notice. Six month and one year plans are available upon request.
3. SUPPORT SERVICES: Telephone customer support is separate from training and is available to all Licensees free of charge on an ongoing basis. Telephone customer support is generally limited to 1 hour per month, unless the Licensee is experiencing an unusual problem with the software, in which case a support person will be assigned to your case to assist you with working through it. Licensees that need additional ongoing support services in excess of 1 hour per month may purchase additional time for $75 per hour, with a 1 hour minimum. These additional services will be billed monthly. LICENSOR has the right to increase the charges for additional support services from time to time with notice.
4. DATA STORAGE: You acknowledge and agree that all data inputted by you in connection with the use of any software or any Service for which you obtain a subscription to use such software or Service on the Internet will be stored on a remote server owned by or leased to LICENSOR and will not be stored on your computer and all such data can only be accessed by logging into your account provided by LICENSOR. You further acknowledge and agree that LICENSOR shall not be liable for any loss or corruption of such data. You also acknowledge that LICENSOR may use contractors and subcontractors to service and maintain such remote server and/or to provide support services under this Agreement and that such contractors and subcontractors may have access to data that you input and/or data that you disclose to them in the course of utilizing any software or any Service provided under this Agreement. For the avoidance of doubt, “data” includes any type of information.
5. LIMITATION OF LIABILITY: The entire risk arising out of the operation, use or performance of any software or any Service subject to this Agreement remains with you. In no event shall LICENSOR be liable for any damages or losses whatsoever arising out of the operation, use or performance of or the inability to operate or use any such software or Service or the loss or corruption of or inability to access any data, including but not limited to the failure of any portion of the PayDCTM Software to perform or operate properly or the incorrect use by you of any portion of the PayDCTM Software. Furthermore, under no circumstances and under no legal theory, whether tort, contract, or otherwise, shall LICENSOR or its marketers, suppliers or resellers be liable to you or any other person for any indirect, special, incidental, consequential or punitive damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will LICENSOR be liable for any damages in excess of the amount LICENSOR received from you for a license to the software or Service subject to this Agreement, even if LICENSOR shall have been informed of the possibility of such damages, or for any claim by any third party. This limitation of liability shall not apply to liability for death or personal injury resulting from LICENSOR’S negligence to the extent applicable law prohibits such limitation. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not apply to you. You agree that you will not use any software or any Service subject to this Agreement for any purpose that is illegal and will use such software and/or Service carefully and will not use it in any way which might result in any loss of or improper disclosure of your or any third party’s property or information.
6. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS: You may not do the following: (i) reverse engineer, decompile, translate, disassemble, or otherwise attempt to derive source code from any software subject to this Agreement or discover any trade secret with respect to such software, or authorize any third party to do any of the foregoing; (ii) modify, or create derivative works based upon any such software or any Material, in whole or in part; (iii) distribute copies of any such software or any Material or any portion thereof; (iv) remove any proprietary notices or labels on any such software or any Material; or (v) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to any such software or any Material or any portion thereof. The software subject to this Agreement is licensed as a single product. Its component parts may not be separated for use on more than one computer. LICENSOR reserves any rights in the software subject to this Agreement not expressly granted to you in this EULA.
7. TERMINATION: Without prejudice to any other rights, LICENSOR may immediately terminate your software licenses, subscriptions, and any other services that you have through LICENSOR and may terminate this EULA if you fail to comply with any of the Terms of this EULA. This EULA, your software licenses, subscriptions and any other services may also be terminated as permitted by this EULA. Upon expiration or termination of any software license or any subscription to use any software subject to this Agreement, you must destroy all copies of such software and all of its component parts, including but not limited to any portion of any software downloaded by you in order to be able to use such software on the Internet, and all associated Materials.
8. INTELLECTUAL PROPERTY RIGHTS: All interest in any copyrights, patents, trade secrets, trademarks, and any other intellectual property rights in and to any software subject to this Agreement (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into any such software), the Materials (if any), and any copies of any such software (or any portion thereof), are owned by LICENSOR or its suppliers or its partners. Therefore, you must treat any such software like any other material protected by intellectual property laws.
9. U.S. GOVERNMENT END USERS: The software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end users acquire the software with only those rights set forth herein. Manufacturer is LICENSOR.
10. SUBSCRIPTION SERVICES WITHOUT TRIAL
i. The term “Paid Subscription Services Without Trial” refers to any software, subscription, and/or service that was paid up front and will automatically renew/re-bill at the end of the agreed subscription period/term until cancelled by you or LICENSOR, or will automatically expire at the end of a set term (e.g., an annual non-renewing subscription). Use of and a license to the PayDCTM Software is available only through Paid Subscription Services Without Trial, and for the avoidance of doubt, the terms of this Section 10 apply to every subscription to the PayDCTM Software.
ii. All charges and fees will be billed to the active credit card that you have set up for your account. The active credit card may be the first card used to make your purchase or a credit card that has been added to your account. Your refund period begins at the time of purchase, regardless if software is downloaded, installed, logged into, used or otherwise.
iii. Subscription term of Service: Your Service begins when your order is submitted, not from the time of download of any software or any portion thereof. Service is on a “per day” basis. A day ends at 11:59:59 pm US Eastern Standard time and begins the next billing day at 12:00:00 am U.S. Eastern Standard time.
iv. All Paid Subscription Services Without Trial are non-refundable.
v. Non-assignability/theft of login: Your subscription, user name and password (login) may not be assigned or transferred to any other person or entity. You must promptly inform LICENSOR or the site of any apparent breach of security, such as loss, theft, or unauthorized disclosure or use of your user name or password. Until LICENSOR or the site is notified, by e-mail, or by telephone of any breach in security, you will remain liable for any unauthorized use of the Service.
vi. You may cancel any Paid Subscription Services Without Trial at any time. You will not receive any refund or partial refund for any charges. In the event you signed up for a minimum commitment period, you will be responsible for all charges for the entire minimum commitment period. You may cancel the Paid Subscription Services Without Trial by sending an email at least three (3) business days prior to the renewal date. Further, you may contact LICENSOR by fax if available.
vii. Termination/cancellation of subscription software and Services: Subscription to any and/or all software and Service(s) may be terminated at any time, and without cause, by LICENSOR or you upon notification of the other by electronic or conventional mail, or by telephone or fax. When you request termination, subscription fees incurred up until cancellation (if any) are not refunded. You are liable for charges incurred by you until termination of Service regardless if software is downloaded, installed, logged into or used. You may cancel your subscription(s) at any time by visiting the LICENSOR support web site at www.paydc.com/support and sending an email through the support web site requesting in the subject line “subscription cancellation request” and in the body of the email the reason for cancellation. Upon delivery of a cancellation request email, you will receive a confirmation email from LICENSOR with a tracking number confirming that your message has been received. Please be sure to retain this confirmation for your records as this is confirmation of your cancellation request. If you do not receive a confirmation email for your request within 24 hours, we recommend that you submit your request again via an alternate method such as phone, live chat, postal mail, or fax. Once your cancellation is processed by LICENSOR, you will receive, via email, a subscription cancellation confirmation. Should you not follow the correct cancellation instructions the account will remain active and you will be responsible for all charges incurred up to the time the subscription is deactivated.
viii. Automatic renewal: Subscription fees for regular memberships/Services are automatically renewed at the end of the original term stated at the time of purchase, for a like period of time, unless the cancellation procedure is successfully completed as described in section 10, paragraph vii above by you to LICENSOR or the site three (3) business days prior to the end of the term. Unless and until this Agreement is cancelled in accordance with the terms hereof, you are obligated to pay such subscription fees and hereby authorize LICENSOR to charge your credit card (or other approved facility) to pay for the ongoing cost of subscription; provided, however if you have opted to pay such subscription fees by check (which is only an option for some annual subscription fees), you shall remain obligated to pay such subscription fees.
ix. Missed cancellation period: LICENSOR accepts no responsibility for late cancellations or cancellation requests not received due to printer or fax failure, download failure due to (and not limited to) disconnection from the Internet, power failure, heavy Internet traffic, instructions not received due to an incorrect customer information, illness, a cancellation request sent to a wrong email address or a company other than LICENSOR, computer failure, or hardware error. It is your responsibility to ensure that cancellation requests are received by LICENSOR during the refund/trial period.
x. Account information: You must provide current, complete and accurate information for your billing account in order to receive the products and Services ordered. You must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify LICENSOR if your payment method is canceled (for example, for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made via email at http://www.paydc.com//support/new. If you fail to provide LICENSOR any of the foregoing information, you agree that LICENSOR may continue charging you for any product or Service provided under your billing account, unless and until you have properly terminated your subscription for such product or Service (confirmed in writing upon request).
xi. Due Date/Collection Costs: The amount due to LICENSOR for any subscription, software or Service must be paid in full by your payment method provider on the date such payment is requested by LICENSOR, not later than 30 days after the billing date; you are not entitled to carry forward a balance. LICENSOR reserves the right to refer your billing account to a third party for collection in the event of default. You agree to pay all costs incurred in the enforcement of this EULA and in collection of any delinquent amounts due, including reasonable attorneys’ fees and costs. Should there be an outstanding balance, all Services on the account may be suspended by LICENSOR until the account is paid in full with no refund for lost time. Lost time is counted towards the subscription period. Once the balance is paid in full you will regain access to your Service.
xii. Refunds apply to subscription fees only. No refund will be issued for any charges outside of base subscription fees.
11. FRAUD & CHARGEBACK RIGHTS: You hereby agree that all fraud and misuse of your card will be promptly reported to LICENSOR. You also agree that any disputes with billing, delivery, or service quality will be addressed and investigated through LICENSOR. Any charges disputed with your issuing bank or financial institution without first contacting LICENSOR for resolution may be construed as an attempt to defraud LICENSOR. Liquidated damages up to $500 may be assessed by LICENSOR, in its discretion, against any individual who fraudulently obtains a subscription, Services, software, or whose transaction later results in a chargeback to the account. You agree that the liquidated damage amount above is reasonable, does not constitute a penalty, and is being established due to the difficulties and inconvenience associated with attempting to establish the exact amount of loss which may be sustained by LICENSOR due to excessive charge backs to the account. You shall indemnify, defend and hold LICENSOR harmless from any and all claims, fines or other damages brought, imposed or incurred by any credit card company or other entity due to excessive charge backs which are the cumulative result of your fraudulent actions. The LICENSOR fraud department will review all charge backs.
If a chargeback is received, LICENSOR reserves the right to discontinue any or all Services associated with your account regardless of the amount or specific purchase disputed. Any or all future orders may be denied purchase due to chargeback history associated with your account. If you have any questions or concerns regarding a purchase or charges listed on your account or billing statement, please contact us immediately to research your account.
Claiming a charge as fraudulent to avoid payment for your software or subscription is illegal and any and all violators will be prosecuted to the fullest extent of the law. Your credit card company and the authorities will be notified. For any charge backs submitted as fraudulent, LICENSOR will require a copy of a filed police report and a signed affidavit from your credit card company stating that the charge was fraudulent and that your credit card and/or credit card numbers were stolen or otherwise falsely obtained and used. Failure to provide this information will result in LICENSOR disputing the chargeback.
i. Non-Fraudulent Charge backs: Charge backs issued for reasons LICENSOR deems as non-fraudulent and where LICENSOR believes you were provided with proper services and/or support will be disputed through your credit card company. It is your responsibility to notify LICENSOR of any problems you are having with your software or Service immediately. In the event that your credit card company declines a charge back reversal request, LICENSOR reserves the right to refer your account to a third party for collection in the event of default. You agree to pay all costs incurred in the enforcement of this EULA and in collection of any delinquent amounts due, including bank fees, reasonable attorneys’ fees and any other costs.
ii. Fraudulent Charge backs: Any charge backs that result from fraudulent activity will be investigated. LICENSOR uses Credit Card Verification (CVV2) and Address Verification (AVS) to validate your credit card. Customer IP address and network host are recorded when an order is placed and when you log into any subscription based Service. This information will be used to trace the order to the person(s) that ordered the software and/or Services. All information on fraudulent accounts will be turned over to the authorities to assist in locating and prosecuting any and all guilty parties.
12. BILLING DESCRIPTION: All charges will appear as “paydc.com software” or “Advanced Provider Solutions” on your credit card statement.
13. RECEIPT: When your order is approved, your receipt will be sent to the email address on your order form. Your receipt contains all information regarding your account. Your receipt will provide you with a renewal date that lets you know when you will be billed for the next term of your paid subscription or free trial. If you ordered paid software, your receipt serves as notice of when your satisfaction guarantee period begins. If you have a free trial, you will not be notified via email, or any other means, prior to your trial period ending. It is recommended that you print your receipt for your records. You may request a copy of your receipt at any time by contacting the sales department via our web site http://www.paydc.com. LICENSOR accepts no responsibility for receipts not received due, and not limited to, an incorrect email address being provided, rejection from a server or ISP, or for any other reason.
14. OUTSTANDING BALANCES ON ACCOUNT: LICENSOR reserves the right to charge any outstanding balance on your account(s). We will attempt to charge your credit or debit card information on file up to four (4) times and an email notification of the billing charges will be sent to the email address on file. If during the fourth (4th) attempt the transaction(s) cannot be processed, your account will be suspended and Service will not be available to access. At this time your account will still incur billing fees for regular subscription fees regardless if Services are available. Upon payment of outstanding balances, your account will be reactivated within 24 hours. We are not required to credit or add additional service time for any suspended time frames due to past due payments. If you update your billing information such as credit or debit card numbers, we will then attempt to charge the new card for any outstanding balance(s).
15. SOFTWARE PERFORMANCE: All of our software is sold for the purpose of enhancing your computer/Internet experience, system stability, and privacy. The software you have purchased or subscribed to may not always produce the effects that you desire. If you do not receive the results that you would like, we always provide the option of returning/canceling your purchase or subscription within the allowed time of the trial/cancellation/and/or refund period. We will not deny any refund / cancellation request that has been submitted during the allowed period.
16. SYSTEM COMPATIBILITY: Our software is thoroughly tested to be free of errors; however, because we can not predict every situation and because different customers have different system environments (hardware, software), installed software may not function properly and/or could cause damage to your system, including, but not limited to data loss and hardware/software failure. All software is downloaded, installed, and used at your own risk. We make no statements that our software will or will not work with your specific system to your expectations. If our software is not performing to your expectations it is your responsibility to contact us for a cancellation or refund. In order to qualify for any refund due, it is your responsibility to submit your request before any refund period ends.
17. SERVER DOWNTIME: Our software programs require access to our web servers for login verification, uploading or downloading information, program updates, or other reasons. If for any reason our servers are offline due to hardware/software upgrades, unexpected power outages, routine maintenance, and/or system crashes, you may not be able to access the software subject to this Agreement or your data. We expect that downtime will be minimal; however, you will not be able to access the software or your data for that period of time. We do not provide any warranty for inability to access software or your data during these periods. We are not responsible for any loss of data or productivity in the case of server outage.
18. SYSTEM BACKUPS: It is recommended that before downloading or installing any software that you back up your system. It is your responsibility to perform routine backups on your system to protect you against any loss of data due to downloading, installation or usage of software, or removal of software from your system. If you are unsure of how to perform a data backup, you should consult your computer manufacturer for more information.
19. SEVERABILITY: Should any provision contained in this Agreement be found by a court of competent jurisdiction to be invalid, illegal or unenforceable, or for any reason cease to be binding on any party hereto, the remainder of this Agreement shall continue in full force and effect.
20. LICENSEE WARRANTIES: You represent, warrant and covenant that (i) all of your activities relating to this Agreement, including but not limited to your use of any software subject to this Agreement (or any portion of such software) or Services, will not be in violation of any applicable law, rule or regulation, and you will obtain all consents, permits and approvals and will enter into all agreements required to comply with such laws, rules and regulations; (ii) this Agreement constitutes a valid and binding obligation of yours, enforceable in accordance with its Terms; and (iii) you will not disclose or provide access to any software subject to this Agreement or any portion of such software to any third party, and will not allow any third party to use any software subject to this Agreement or any portion of such software. You should consult with an attorney with respect to any issues or questions you have concerning whether any activity relating to this Agreement, including but not limited to the use of any software, complies with all applicable laws, regulations and rules. You and LICENSOR each acknowledge that it has not entered into this Agreement in reliance upon any representation, warranty or covenant except those specifically set forth in this Agreement.
21. IRREPARABLE HARM: You acknowledge that the unauthorized disclosure or use of any software subject to this Agreement or any portion of such software would result in irreparable harm to LICENSOR for which LICENSOR would otherwise have no adequate remedy at law. You therefore agree that in the event of any threatened or actual unauthorized disclosure or use of any such software, LICENSOR shall be entitled to injunctive relief and that LICENSOR shall not be required to provide a bond or other security as a condition to or in connection therewith. This remedy shall be in addition to any other remedy available at law or in equity.
22. DISCLAIMER OF WARRANTIES: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT PURCHASE, RECEIPT, AND USE OF, AND RELIANCE UPON, ANY SOFTWARE OR SERVICE, INCLUDING THE G4 SERVICES AS DESCRIBED IN PARAGRAPH 25 BELOW, IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, OUTCOME AND EFFORT IS ENTIRELY WITH YOU. SOFTWARE AND SERVICES ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT ANY REPRESENTATION, WARRANTY OR COVENANT OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS WITH RESPECT TO SOFTWARE AND/OR SERVICES, INCLUDING THE G4 SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, OF ACCURACY, OF COMPLETENESS, OF LEGALITY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, (A) LICENSOR MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS REGARDING THE SECURITY OF SOFTWARE OR SERVICES, OR REGARDING THE TIMELINESS AND PERFORMANCE OF LICENSOR; (B) LICENSOR DOES NOT REPRESENT, WARRANT OR COVENANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF SOFTWARE OR SERVICES, THAT THE FUNCTIONS CONTAINED IN SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED, SECURE, UNSUSPENDED, NOT TERMINATED, OR ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED; (C) LICENSOR DOES NOT REPRESENT, WARRANT OR COVENANT THAT ANY DATA STORED OR TRANSMITTED BY ANY SOFTWARE IS FREE FROM UNAUTHORIZED MODIFICATION OR THAT YOUR ACTIVITIES RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO YOUR USE OF ANY SOFTWARE, WILL COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS AND RULES, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, PUBLIC LAW 104-191 (“HIPAA”); AND (D) LICENSOR MAKES NO REPRESENTATION, WARRANTY OR COVENANT AS TO NONINFRINGEMENT AND RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT IMMEDIATELY UPON ANY CLAIM BY A THIRD PARTY OF RIGHTS IN OR TO ANY INTELLECTUAL PROPERTY ASSOCIATED THEREWITH. LICENSOR DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY SOFTWARE OR DATA. NO ORAL OR WRITTEN STATEMENT SUPPLIED BY LICENSOR SHALL CREATE A WARRANTY.
23. FORCE MAJEURE: Without limiting this Agreement in any way, under no circumstances shall LICENSOR be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment or software failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
24. INDEMNIFICATION: You shall indemnify, defend and hold harmless LICENSOR, its affiliates and their respective officers, directors, employees, agents, representatives, partners, licensors and suppliers from any damages, liabilities, losses, injuries, death, costs (including but not limited to reasonable attorneys’ fees and court costs), fees or expenses which arise, directly or indirectly, from or are alleged to have arisen, directly or indirectly, from (a) any act, omission, negligence, unlawful action or willful misconduct of yours or of any officer, director, employee, agent, representative or consultant of yours in connection with any activity relating to this Agreement, including but not limited to the use of any software subject to this Agreement; or (b) any violation or breach by you or any officer, director, employee, agent, representative or consultant of yours of any term of this Agreement, including but not limited to any representation, warranty or covenant, or of any law, regulation or rule governing any activity of yours relating to this Agreement.
25. G4 SERVICES – APPLIES ONLY TO USERS OF SUB-LICENSED, WEB-BASED PATIENT AND THIRD PARTY BILLING AND CLEARINGHOUSE MODULE SUPPORTED BY G4 HEALTH SYSTEMS:
i. You are obtaining a non-exclusive, non-transferable license to use the billing and clearinghouse module (referred to herein as the “G4 Services”) in accordance with the terms of a sublicense, pursuant to Advanced Provider Solutions’ agreement with G4 Health Systems, Inc., (hereinafter “G4”) and not title to G4 Services or to any intellectual property rights associated thereto;
ii. You are responsible for acquiring, installing and maintaining the data processing and related equipment necessary to properly operate the G4 Services;
iii. You may use G4 Services during the term of this EULA only to process your data for internal business purposes. No right is granted for use of the G4 Services by any third party or by you
to operate a service bureau or time-sharing arrangement;
iv. You shall not (or allow others to) modify, disassemble, decompile or reverse engineer the G4 Services or otherwise attempt to derive source code from the G4 Services without G4’s prior written consent;
v. You must discontinue use and destroy or return to Advanced Provider Solutions or G4 any documentation or materials related to the G4 Services and all archival or other copies thereof;
vi. You are prohibited from using the G4 Services for any purpose outside the scope of this EULA;
vii. In no event shall title for the G4 Services pass to you;
viii. The G4 Services may not be used outside the United States without the prior written consent of G4, and, should G4 give such consent, you must comply fully with all relevant export laws and regulations of the United States to ensure that neither G4 Services, nor any direct product thereof, is exported, directly or indirectly, in violation of United States law;
ix. You must notify Advanced Provider Solutions promptly of any unauthorized use or disclosure of confidential information, and provide reasonable assistance to G4 (at G4’s expense) in the investigation and prosecution of any such unauthorized use or disclosure;
x. This EULA shall not cause G4 to be liable for any taxes, pass-through fees or duties, however designated or levied (including but not limited to sales, use and personal property).
i. This Agreement shall be construed, interpreted and enforced in accordance with, and governed by, the laws of the Commonwealth of Pennsylvania, without regard to conflicts of law principles. In the event that any dispute should arise under this Agreement, the parties agree to waive all jurisdictional and venue objections and to have all such disputes submitted to and heard in the state or federal courts of Pennsylvania.
ii. All of the warranties, representations, covenants and indemnifications of each party under this Agreement shall survive the expiration or termination of this Agreement as well as any other provision which by its nature is intended to survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 5, 6, 7, 8, 11, 16, 19, 20, 21, 22, 24 and 25 shall survive the expiration or termination of this Agreement.
iii. The headings to the sections of this Agreement are included solely for convenience of reference and shall not affect the meaning of the language included therein.
iv. This Agreement and the rights and obligations under this Agreement shall not be assignable by you without the prior written consent of LICENSOR. LICENSOR shall have the right to assign and transfer this Agreement and the rights granted or obtained hereunder to any person, including any affiliate of LICENSOR, in whole or in part, including an assignment or transfer by merger, sale or exchange of stock, consolidation, purchase of assets, acquisition or in any other manner, and to delegate its duties, liabilities and obligations hereunder to any such assignee in connection therewith. In any event, no assignment shall be effective unless and until the assignee agrees, in writing, to be bound by the Terms of this Agreement. Any attempted assignment in violation of the foregoing shall be null and void and of no effect. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors heirs and permitted assigns.
v. The rule that an agreement is to be construed against the party drafting the agreement is hereby waived, and shall have no applicability in construing this Agreement or any provision hereof.
vi. Each party is acting under this Agreement as an independent contractor and not as the agent or employee of the other. Each understands and agrees that it has no authority to assume any obligation on behalf of the other party and that it shall not hold out to third parties that it has any authority to act on the other party’s behalf except as expressly permitted herein. Nothing contained herein shall create or be deemed to create any agency, partnership or joint venture between LICENSOR and you. You shall not make any representations, warranties or commitments which purport to bind LICENSOR without the prior written consent of LICENSOR.
vii. The failure by any party to exercise any rights or remedies provided for in this Agreement or at law shall not be deemed a waiver of any such rights or remedies.
viii. Notwithstanding anything to the contrary in this Agreement or otherwise, (a) Advanced Provider Solutions does not warrant or guarantee, or make any representation or any promise with respect to, any result, output or outcome arising or resulting from the use of any software or any Service subject to this Agreement, including but not limited to compliance with any governmental law, rule or regulation, meeting any standard or qualification requirement, or qualifying to receive any payment, including but not limited to any incentive payment under the applicable provisions (as may be amended from time to time) of the American Recovery and Reinvestment Act of 2009 (the “Act”), including but not limited to the applicable provisions of Title XIII of Division A of the Act (the Health Information Technology for Economic and Clinical Health Act, also known as HITECH) and Title IV of Division B of the Act (Medicare and Medicaid Health Information Technology; Miscellaneous Medicare Provisions) and regulations related thereto, (b) Advanced Provider Solutions shall have no responsibility or liability with respect to the use of any software or any Service subject to this Agreement or any result, output or outcome arising or resulting from the use of any software or any Service subject to this Agreement, including but not limited to the failure to qualify to receive any incentive payment under the applicable provisions (as may be amended from time to time) of the Act, including but not limited to the applicable provisions of Title XIII of Division A of the Act (the Health Information Technology for Economic and Clinical Health Act, also known as HITECH), and Title IV of Division B of the Act (Medicare and Medicaid Health Information Technology, and (c) the entire risk arising out of the operation, use or performance of any software or any service subject to this Agreement remains with you.