mymediport, LLC Patient App END-USER LICENSE AGREEMENT
You have downloaded and installed the mymediport mobile application (the “Application”) provided by mymediport, LLC (mymediport). By using and accessing the Application and accepting the terms set forth herein, you agree to be bound by the terms of this End-User License Agreement (the “Agreement”). This Application allows you to access certain functionality available on mymediport’s website (the “Site”), such access will be governed by this Agreement. Conditioned upon the acceptance of this Agreement, mymediport is willing to grant you a limited license to download, install, and operate the Application. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, REFRAIN FROM ANY FURTHER USE OF OR ACCESS TO THE APPLICATION. BY DOWNLOADING, INSTALLING, USING THE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS OF THE DATE ON WHICH YOU FIRST DOWNLOAD, INSTALL, OR USE THE APPLICATION (SUCH DATE, THE “EFFECTIVE DATE”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, MYMEDIPORT WILL NOT GRANT YOU ACCESS TO THE APPLICATION, AND YOU SHOULD DISCONTINUE USE OF THE APPLICATION.
This Agreement consists of the following terms and conditions. Unless otherwise amended as set forth herein, this Agreement will be the complete and exclusive understanding and agreement between the parties governing Your access to and use of the Application, and will supersede any oral or written proposal, agreement, or other communication between the parties, regarding Your use of the Application. mymediport reserves the right to modify this Agreement at any time, and without prior notice, by posting amended terms on this Site. We encourage you to review this Agreement periodically for any updates or changes, which will have an update effective date.
The mymediport Application (i) is an informational and management aid only and is not offered or provided for the purpose of diagnosing, treating or prescribing for any illness or injury (ii) is no substitute for the need to always discuss your healthcare requirements with appropriately qualified professionals (iii) is not to be used to diagnose or make treatment decisions (iv) is not guaranteed to provide completely accurate or current information (v) is intended for use in the United States only and (vi) does not endorse drugs or other products or services, diagnose any injury, illness, disease or other health condition, or recommend any treatment, therapy or health care provider. You expressly acknowledge and agree that mymediport is NOT responsible for the results of your decisions resulting from the use of the Application. Mymediport does not assume any responsibility for any aspect of healthcare administered or not administered with the aid of information the Application provides.
SCOPE OF LICENSE TO USE THE SOFTWARE
Subject to Your compliance with, and during the term of, this Agreement, mymediport grants You a non-exclusive, revocable, personal, non-transferable, non-sub licensable limited license solely to install and use the Application on an Apple or Android mobile device, tablet, or computer or other digital device owned or controlled by You only for Your own internal, non-commercial purposes in accordance with this Agreement and any applicable documentation accompanying the Application or otherwise provided to You by mymediport. Except as expressly set forth in the previous sentence, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Application or any intellectual property rights therein or related thereto, and You may not use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any portion of the Application without the prior written permission of mymediport. The term of your license under this Agreement shall commence on the date that you accept this Agreement and install the Application for use and end on the earlier date of either your removal of the Application or mymediport’s termination of this Agreement.
CONDITIONS OF USE
You will not, nor allow third parties on your behalf to (i) make and distribute copies of the Application; (ii) attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the Application; (iii) create derivative works of the Application of any kind whatsoever; (iv) sell, license, sublicense, lease, rent or transfer to any third party whether for profit or without charge, any portion of the Application; (v) publish or otherwise communicate any review of, or information about, the performance of the Application to any third party without the prior written consent of mymediport; (vi) download, or otherwise use the Application in violation of any laws or regulations, including U.S. Department of Commerce Export Administration regulations and other applicable laws; or (vii) use the Application in connection with life support systems, human implantation, medical devices, or any application where failure or malfunction could lead to possible loss of life or catastrophic property damage.
Your license terminates immediately if you attempt to circumvent any technical protections or measures used in connection with the Application or otherwise use the Application in breach of this Agreement.
You represent and warrant that you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country and you are not listed on any US Government list of prohibited or restricted parties.
The Application is currently made available to you free of charge. mymediport reserves the right to amend or withdraw the Application, or charge for the Application or service provided to You in accordance with these Terms, at any time and for any reason.
You acknowledge that the terms of agreement with your respective mobile network provider (“Mobile Provider”) will continue to apply when using the Application. As a result, you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing the Application or any such third-party charges as may arise. You accept responsibility for any such charges that arise. If you are not the bill payer for the mobile telephone or handheld device being used to access the Application, you will be assumed to have received permission from the bill payer for using the Application.
SECURING YOUR LOGIN
You are responsible for maintaining the confidentiality of your username and password for logging onto the Application. You are fully responsible for all activities that occur while you are logged into the Application, with or without your knowledge. If you knowingly provide your login and password information to another person, mymediport may suspend your account or permanently close it. You agree to immediately notify mymediport of any unauthorized use of your password or username or any other breach of security.
This Application is available for handheld mobile devices running Apple iOS or Google Android operating system. Mymediport will use reasonable efforts to make the Application available at all times. However, you acknowledge the Application is provided over the internet and mobile networks and so the quality and availability of the Application may be affected by factors outside mymediport’s reasonable control.
Mymediport does not accept any responsibility whatsoever for unavailability of the Application, or any difficulty or inability to download or access content or any other communication system failure which may result in the Application being unavailable.
In order to use the Application, you are required to have a compatible mobile telephone or handheld device, internet access, and the necessary minimum specifications “Software Requirements’”. The Software Requirements are as follows: Apple iOS devices running iOS 7.0 or higher; Language: English and Android devices running 4.3 or higher.
The Application may be upgraded from time to time to add new functions and services.
The Application and its structure, organization, source code, and all text, files, images, graphics, illustrations, information, and other content contained in or available through the Application are the property of mymediport and are protected by applicable intellectual property laws.
The Application is BASED ON A PENDING U.S. PATENT, TRADEMARKED, AND COPYRIGHTED MATERIAL AND OTHER PROPRIETARY MATERIAL. In order to protect them, and except as permitted by applicable legislation, you may not decompile, reverse engineer, disassemble or otherwise reduce the Application to a human-perceivable form. You may not modify, rent, lease, loan, distribute, transfer or copy the Application in whole or in part, or create derivative works based upon the Application in whole or in part. Access to the Application is licensed, not sold, to You for use only under the terms of this Agreement. You may utilize the Application solely as expressly set forth in this Agreement. mymediport reserves all rights not expressly granted to You under this Agreement. You may not remove, alter or obscure any copyright or trademark notice or any other proprietary notice that appears in the Application or on any copies thereof. All title, including but not limited to copyrights, in and to the Application and any copies thereof are owned by mymediport. All rights not expressly granted are reserved by mymediport.
CONSENT USE OF DATA
This Agreement will continue until terminated. This Agreement will terminate immediately with or without notice to you if you breach any term of this Agreement. In addition, mymediport may terminate this Agreement immediately, for any reason or no reason, with or without notice to you. You may terminate this Agreement by deleting all copies of the Application in Your possession or control. Upon any termination of this Agreement, all rights granted to you under this Agreement will cease, and You must promptly discontinue all access to and use of the Software. Upon termination, all the rights and licenses granted to you under this Agreement shall terminate.
SERVICES; THIRD PARTY MATERIALS
The Application may enable access to mymediport’s and third-party services and websites (collectively and individually, “Services”). Use of the Services may require Internet access and that You accept additional terms of service. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third-party websites. By using the Services, You acknowledge and agree that mymediport is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or websites. Mymediport does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that mymediport is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.
In addition, third party Services and Third-Party Materials that may be accessed from, displayed on or linked to from the Apple or Android device are not available in all languages or in all countries. mymediport makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, You do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. mymediport, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will mymediport be liable for the removal of or disabling of access to any such Services. mymediport may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
THIRD PARTY SOFTWARE
The Application may contain or include software code owned or provided by third-party licensors of mymediport (“Third-Party Software”). For any Third-Party Software clearly indicated to be subject to the terms of a third-party software license (a “Third-Party License”), the terms of the applicable Third-Party License will apply to the Third-Party Software independent of the terms of this Agreement. All other Third-Party Software distributed to you by mymediport may be used only under the terms of this Agreement. Nothing in this Agreement limits your rights under, or grants rights to You that supersede, the terms of any applicable Third-Party License.
mymediport retains all right, title and interest, including, without limitation, all intellectual property rights, in and to the Application and any additions, improvements, updates, and modifications thereto. You acknowledge that you are not receiving any ownership interest in or to any of the foregoing.
The mymediport name and logo are trademarked and copyrighted by mymediport and no right or license is granted to you to use them separate from your right to access the Application.
DISCLAIMER OF WARRANTY OF THE SOFTWARE: NO WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MYMEDIPORT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ANY 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 ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MYMEDIPORT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY, THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MYMEDIPORT OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY AND INDEMNIFICATION
YOU ASSUME ALL RISK FOR SELECTION AND USE OF THE APPLICATION AND THE CONTENT PROVIDED. MYMEDIPORT SHALL NOT BE RESPONSIBLE FOR ANY ERRORS, INACCURACIES OR MISSTATEMENTS OF CONTENT DELIVERED THROUGH THE APPLICATION OR ANY DELAYS OR INTERRUPTIONS OF SUCH DELIVERY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL MYMEDIPORT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF MYMEDIPORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
In no event shall mymediport’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed that portion of the amount paid by you (if any) which is fairly attributable to the Application. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
To the fullest extent permitted under law, You agree to indemnify, defend, and hold harmless mymediport and its officers, directors, employees, agents and licensors from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s fees) that may at any time be incurred by any of them in whole or in part by reason of any allegations, claims, suits, or proceedings arising from: (1) Your use of the Application; or (2) any breach by You of any representation, warranty or other term or condition of this Agreement.
Every effort has been made to ensure that the information provided in the Application is accurate, up-to-date and complete, but no guarantee is made to that effect, including with respect to any product descriptions, prices, or information concerning medical devices. In addition, the drug information contained in the Application may be time sensitive. Additional information on any product may be obtained from the manufacturer.
The Application does not endorse drugs or other products or services, diagnose any injury, illness, disease or other health condition, or recommend any treatment, therapy or health care provider. The Application is an informational resource only. You and your physicians and healthcare practitioners must use your/their own judgment in using the information provided.
The Application is not a substitute for the care provided by physicians and licensed healthcare practitioners, and you are urged to consult with your physician(s) and/or healthcare practitioner(s) in all instances. The absence of a warning for a given drug or drug combination, or any other treatment, therapy or health care provider, in no way should be construed to indicate that the drug or drug combination, or other treatment, therapy or health care provider, is safe, effective, qualified, or appropriate.
You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your account with or without your knowledge. If you knowingly provide your username and password information to another person, your membership privileges may be suspended temporarily or terminated. You agree to immediately notify mymediport of any unauthorized use of your membership password or login or any other breach of security.
EXPORT LAW ASSURANCES
You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, You represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
GOVERNMENT END USERS
The Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
THIRD PARTY BENEFICIARY
Google and Google’s subsidiaries , Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and You accept and understand that Google and Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.
This agreement shall be governed by the laws of the State of Texas and the applicable federal laws of the United States of America. All disputes arising under, or in any way connected with the use of the Site and/or Application, shall be litigated exclusively in the state and federal courts in the State of Texas, and in no other court or jurisdiction. You hereby submit to the jurisdiction of the state and federal courts sitting in the State of Texas.
Any questions regarding this License or the use of the Application should be addressed to:
5760 Legacy Drive, Suite B3-391
Plano, TX 75024
Email: [email protected]
This License constitutes the entire agreement between the parties with respect to the use of the Application and the related documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of mymediport. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected.