Terms and Conditions
Please read this End User License Agreement (this “EULA”) carefully before accessing, downloading or using the Services (defined below). By accessing, downloading or using the Services, you and/or any entity for which you act on behalf of (the person or entity using the Services, “Subscriber”) agree to be bound by the terms of this EULA. If Subscriber is an entity, the term Subscriber shall include Subscriber, and all of Subscriber’s affiliates, employees, representatives, contractors, and users of the Services. The agreement by an employee, consultant or contractor acting on behalf of an entity to these terms will be deemed to be the agreement of that entity. Any such employee, consultant or contractor hereby represents and warrants that he, she or it has authority, or has been provided authority, to bind the entity to this EULA.
Cognition Med, LLC., a Delaware corporation (“Cognition Med”) is only willing to grant Subscriber access to the Services if Subscriber accepts all of the terms of this EULA. If Subscriber and Cognition Med have both executed a written agreement that governs access to or use of the Services (an “Order Form”), then the terms of the Order Form shall govern and control to the extent there is a direct conflict between the terms of this EULA and the terms of the Order Form.
Each of Subscriber and Cognition Med may be referred to herein as a “party,” and Subscriber and Cognition Med together may be referred to as the “parties.”
PERMITTED USES AND RESTRICTIONS
“Services” means the services Cognition Med agrees to provide, in its sole and absolute discretion, via its freemium services.
Subject to the terms of this EULA, during the applicable EULA Term (defined below), Cognition Med grants Subscriber a non-exclusive, non-transferable and non-sublicensable right for Subscriber to access, download and use the Services in conjunction with Subscriber’s internal business purposes and in accordance with Cognition Med’s applicable documentation.
Subscriber is granted permission to access, download and use the Services, provided that Subscriber shall:
Not use the Services for any illegal or unauthorized purpose, or beyond the scope of the Services’ expected use;
Not intentionally interfere with the operation of the Services or with any other person’s use of the Services;
Not intentionally gain unauthorized access to the Services;
Be solely liable for Subscriber’s conduct, acts, and omissions, including for the conduct acts or omissions of all its employees, affiliates, consultants, service providers and users;
Not merge the Services with other software;
Not resell, sell, lease, lend, redistribute, sublicense, assign or otherwise transfer or transmit the Services to any third party;
Not use the Services for any purpose other than internal business needs; Not use the Services to compete against Cognition Med;
Not alter, modify, adapt, reverse engineer, decompile, disassemble or hack the Services, create derivative works from the Services or otherwise attempt to derive the source code for the Services;
Not remove or alter any copyright notices or other notices included in the Services;
Not alter or modify another website so as to falsely imply that it is associated with Cognition Med;
Not use the Services to create or transmit unwanted email, junk email, bulk email, promotions, spam or content that includes any advertising;
Not intentionally transmit any viruses, bugs, worms, or any other computer code of a destructive nature or that may harm a network, computer, server, hardware, software or telephone equipment using the Services;
Not violate anyone else’s legal rights (e.g. privacy rights) or any laws (e.g. copyright laws) in Subscriber’s jurisdiction while using the Services;
Remain solely responsible for any message data sent from Subscriber’s account; Use the Services in accordance with all applicable laws;
Not use any data mining, robots or similar data gathering and extraction methods in connection with the Services;
Not impose an unreasonable burden on the Services or network; Not breach, or attempt to breach, the security of the Services;
Not use the Services or export the Services in violation of U.S. export laws and regulations;
Not solicit any activity, unlawful or otherwise, that infringes Cognition Med’s rights or the rights of any other party;
Not impersonate any person or entity or falsely state or otherwise misrepresent their affiliation with a person or entity or create a false persona
Not enable others to violate any of these terms and conditions; and Ensure that all users of the Services are at least 18 years of age or older.
Abide by professional standards and policies applicable to Subscriber’s use of Services, to include, but not limited to, the Health Insurance Portability and Accountability Act (HIPAA). The Subscriber agrees to maintain institutional or practice core competency in any and all privacy regulations governing their profession and/or chosen occupation.
Any violation of this EULA by Subscriber may result in the termination of Subscriber’s Cognition Med account and Subscriber’s ability to access or use the Services. Additionally, Cognition Med shall have available to it any and all remedies in law or in equity related to such violation.
TERM AND TERMINATION
The Effective Date is the date Subscriber accepts the terms herein or first accesses, downloads or uses any of the Services, and the EULA Term shall be for so long as Subscriber uses or accesses any of the Services.
Either Cognition Med or Subscriber may terminate this EULA, without penalty when the other party has materially breached the terms of this EULA and fails to cure such breach within fifteen
(15) days’ notice of such breach; provided, however that if this EULA is breached by Subscriber, Cognition Med shall have available to it any and all remedies in law or in equity related to such breach.
Upon termination of the EULA Term, Subscriber shall no longer be permitted to use or access the Services. The terms herein that contemplate obligations after the EULA Term, including but
not limited to Indemnification, Disclaimer, Limitation of Liability, Controlling Law and Severability, and Confidentiality, shall survive termination.
Subscriber owns all of Subscriber’s data, text, information, graphics, photos, profiles, audio and video clips, links and other content and materials that Subscriber submits and/or transmits using the Services, (collectively, “Data”). Cognition Med may use Data to provide, monitor and improve the Services. Subscriber shall be fully liable and responsible to ensure that Data does not violate any law, regulation, or the terms of this EULA. Notwithstanding the foregoing, Cognition Med may monitor, collect, use and store usage data, metadata and other anonymous aggregate data regarding use of the Services (the “Usage Data”). Cognition Med owns all title, right, and interest, including any associated intellectual property rights, in and to the Usage Data. Cognition Med shall not be responsible for maintaining backups of Data on the Cognition Med systems. All Data will be processed and stored within the geographic limits of the United States. Upon termination of Subscriber’s Cognition Med account, Data will no longer be stored on Cognition Med’s systems.
Subscriber acknowledges that the Services, and their respective structures, organization, documentation, software and source code, constitute Cognition Med’s valuable intellectual property owned solely by Cognition Med, LLC. Cognition Med does not grant, and Subscriber acknowledges that it has no right, license or interest in, any patents, copyrights, trademarks, or trade secrets owned, used or claimed now or in the future by Cognition Med. No title to or ownership of the intellectual property contained in (a) the Services, the software or any part of the Services or the software, (b) any enhancements, updates, modifications, local versions or any derivatives of the Services or the software, (c) any and all intellectual property and proprietary rights therein, or (d) Cognition Med’s confidential information, is transferred to Subscriber.
Cognition Med’s trademarks and trade dress, as well as third-party trademarks, logos and service marks used in conjunction with the Services, may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without Cognition Med’s prior written permission.
Subscriber fully understands and acknowledges that: (a) the Services are intended to deliver non-critical, non-emergency messages between users; (b) the Services are dependent upon a number of factors outside Cognition Med’s control, including but not limited to the operation of third-party provided hardware and network services; (c) the Services are not a substitute for any of Subscriber’s current systems of administering and safeguarding medical treatment and/or medicine; (d) there may be occasional communication failures or delays in delivering or receiving properly sent messages; (e) the Services are not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in delivering critical medical care environments; and (f) Subscriber is solely responsible for providing to Cognition Med accurate information regarding Subscriber’s account or the delivery of the Services, including, without limitation, user information, changes in personnel, phone number changes and email address changes.
Cognition Med does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be included in the Services, associated services, and mobile apps. Registered users of Cognition Med are solely responsible for all patient care information transmitted or made available through the foregoing and all treatment decisions, using their own professional judgment. Reliance on any information appearing on the Site, associated services, and mobile apps, whether provided by Cognition Med, its content providers, its clients, end users, visitors to the Site or others, is solely at your own risk.
Subscriber acknowledges they are licensed in accordance with the medical board licensing laws of the relevant jurisdiction or are a healthcare team member contributing to patient care under the supervision of a medical professional if Services are used for medical purposes. If used for non-medical purposes, Subscriber acknowledges use of Services is in accordance with their own professional guidelines and invited Subscribers also meet these requirements.
Subscriber will comply with all state and federal privacy, data security, consumer protection, and similar laws, including, but not limited to the Health Insurance Portability and Accountability Act, as amended, in your use of the Services; and Subscriber will use the information made available through the Services solely and exclusively for patient treatment.or other professional use in accordance with Subscriber’s guidelines and professional responsibilities.
By using the Services, Subscriber grants Cognition Med permission to send to Subscriber’s end users messages regarding the Services, its features, service alerts, and network activity.
Notwithstanding the foregoing, it is Subscriber’s responsibility to register for updates from, and/ or regularly check, Cognition Med’s webpages at www.coltrain.io for updates with respect to the Services. Subscriber’s continued use of the Services after such updates will constitute its acceptance of the changes.
Cognition Med may, but is not obligated to, monitor or review any areas of the Services where user Content may be made available, including, but not limited to, chat rooms, discussion areas, bulletin boards, and other user forums. Cognition Med, however, will have no liability related to the Content or your access to or use of any other user’s Content, whether or not arising under the laws of copyright, defamation, privacy, obscenity, or otherwise. Cognition Med retains the right to remove, in its sole discretion, without notice, Content that includes any material deemed abusive, defamatory, obscene, illegal, or otherwise inappropriate.
Subscriber acknowledges that some of its authorized end users may desire to work with other healthcare organizations and that the authorized end users of other healthcare organizations may desire to work with Subscriber. In order to facilitate use of the Services and notwithstanding anything to the contrary in any other document, Subscriber gives Cognition Med and its Users permission to share the name, mobile phone number, email address, and job title (“Contact Details”) with applicable Subscribers. Subscriber is required to treat such Contact Details, in the same manner, it treats other Confidential Information. Subscriber acknowledges that collaboration with users at other healthcare organizations, outside institutions, or independent companies is at their own discretion and for purposes deemed relevant within the scope of the Services.
“Confidential Information” means any non-public data, information and other materials regarding the products, software, services, prices, discounts or any other business of a party (or of third parties, to the extent a party is bound to protect the confidentiality of any third party’s information) provided by a party, its employees, contractors or affiliates (“Disclosing Party”) to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential or proprietary. The parties agree, without limiting the foregoing, that any performance and security data, product roadmaps, source code, benchmark results and technical information relating to the Services, including pricing information, shall be deemed Cognition Med’s Confidential Information.
Notwithstanding the foregoing, Confidential Information shall not include information which: (a) is already known to the Receiving Party without obligations of confidentiality prior to disclosure by the Disclosing Party; (b) becomes publicly available without fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; (d) is independently developed or created by the Receiving Party without using Disclosing Party’s Confidential Information; or (e) is required to be disclosed by law or governmental regulation, provided that Receiving Party provides reasonable notice to Disclosing Party of such required disclosure to the extent allowed by law, and reasonably cooperates with Disclosing Party in limiting such disclosure. Except as expressly authorized herein, Receiving Party shall: (i) use the Confidential Information of the Disclosing Party only to perform hereunder or exercise rights granted to it hereunder; and (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case with less than reasonable care.
Subscriber agrees to indemnify, hold harmless and defend Cognition Med and its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers from and against any and all claims, charges, complaints, damages, losses, liabilities, costs and expenses (including attorneys’ fees and experts’ fees) due to, arising out of or relating in any way to Subscriber’s use of, or access to, the Services.
SUBSCRIBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY AGREEMENT BETWEEN SUBSCRIBER AND COGNITION MED, USE OF THE SERVICES IS AT SUBSCRIBER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH SUBSCRIBER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. COGNITION MED HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. COGNITION MED DOES NOT WARRANT AGAINST INTERFERENCE WITH SUBSCRIBER’S ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SERVICES WILL BE CORRECTED OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THE SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. SUBSCRIBER FURTHER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL, FINANCIAL OR ENVIRONMENTAL DAMAGE. USING THE SERVICES FOR TRADING SECURITIES IS NOT PERMITTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COGNITION MED OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, SUBSCRIBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, IF APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY IN THOSE JURISDICTIONS.
LIMITATION OF LIABILITY
Except where prohibited by law, in no event will Cognition Med, its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors or suppliers be liable for: (a) any indirect, special, punitive, incidental, exemplary or consequential damages even if Cognition Med has been advised of the possibility of such damages, or (b) any direct damages that result from: (1) the use of, or inability to use, the Services; (2) the performance of the Services; or (3) any failure in the Services. Subscriber assumes total responsibility for using the Services. Subscriber’s sole remedy against Cognition Med for dissatisfaction with the Services is to stop using the Services. If, notwithstanding these terms, Cognition Med is found liable to Subscriber for any damage or loss that arises out of or is in any way connected with Subscriber’s use of the Services, Cognition Med’s liability shall in no event exceed the amount paid by Subscriber to Cognition Med during the previous twelve (12) months. In addition to the foregoing limitations, Subscriber agrees that Subscriber will not join
any claim against Cognition Med with the claim of any other person or entity in a lawsuit, arbitration or other proceedings; that no claim Subscriber has against Cognition Med shall be resolved on a class-wide basis; and that Subscriber will not assert a claim in a representative capacity against Cognition Med on behalf of anyone else.
Governing Law and Venue. This EULA and all matters arising out of or relating to this EULA shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any conflict of law provisions. Each party irrevocably agrees that any claim brought by it in any way arising out of this EULA or the Services must be brought solely and exclusively in state or federal court located in the state of Delaware, and each party irrevocably accepts and submits to the sole and exclusive jurisdiction of such courts, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party.
Assignment. Neither party may assign, subcontract, delegate or otherwise transfer this EULA or any of its rights or obligations hereunder, nor may it contract with third parties to perform any of its obligations hereunder except as contemplated in this EULA, without the other party’s prior written consent; provided, however, that a reorganization, merger or sale of all, or substantially all, of Cognition Med’s assets or equity shall not be considered an assignment under this provision and Subscriber’s written consent shall not be needed to consummate such a transaction.
Notices. All notices required or contemplated by this EULA shall be in writing. Any notice to be given or served hereunder, by either party shall be deemed given and received when delivered personally or five (5) days after being mailed certified mail, postage prepaid. Notices to Cognition Med shall be sent to Cognition Med LLC, c/o JDSA, 2600 Chester Kimm Road, Wenatchee, WA 98801.
Entire Agreement. This EULA, together with any Order Form, exhibits, appendices, and other attachments thereto that are specifically incorporated herein, shall constitute the entire agreement between Cognition Med and Subscriber and contains all of the understandings and agreements of the parties in respect of the subject matter hereof. Any and all prior understanding and agreements, expressed or implied, between the parties in respect of the subject matter of this EULA are superseded hereby.
Severability. If any terms or provisions in this EULA or any application thereof is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this EULA or any application thereof shall not in any way be affected or impaired, except that, in such event, this EULA shall be deemed revised in order to provide the party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such declaration, to the maximum extent legally permitted.
Modifications and Amendments. Except as expressly set forth herein, this EULA may not be modified or amended except by an instrument in writing signed by the parties. Accordingly, no course of conduct shall constitute an amendment or modification of this EULA.
Press Release. Cognition Med may (a) issue a press release within 60 days from the Effective Date regarding Subscriber’s selection and/or use of the Services, the content of which Subscriber and Cognition Med will mutually agree upon prior to publication, and (b) include Subscriber’s name and/or logo in the list of customers that Cognition Med provides to its then current or prospective customers.
Force Majeure. Cognition Med shall not be liable to Subscriber or others for failure to perform under this EULA if the failure results, directly or indirectly, from government action or inaction, mechanical or electrical breakdown, war, civil, unrest, natural disaster or other cause beyond its reasonable control. If either party is affected by an interruption or delay contemplated by this Section, it will: (a) promptly provide notice to the other party, explaining the full particulars and the expected duration of the delay and (b) use its commercially reasonable efforts to remedy the interruption or delay if it is reasonably capable of being remedied.
Section Headings. Section headings in this EULA are for the parties’ convenience only. Accordingly, they shall not constitute a part of this EULA when interpreting or enforcing this EULA.
Breach and Waiver. No waiver of any breach of this EULA shall: (a) be effective unless it is in a writing which is executed by the party charged with the waiver, or (b) constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this EULA shall constitute a waiver thereof.
Survival of Terms. Notwithstanding anything contained herein to the contrary, all of Cognition Med’s and Subscriber’s respective obligations, representations and warranties under this EULA that are not, by the express terms of this EULA, fully to be performed while this EULA is in effect shall survive the termination of this EULA for any reason.
Binding Agreement. This EULA shall be binding upon and shall inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns.
Defined Terms and Use of Terms. All defined terms used in this EULA shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, in each instance as the context and/or particular facts may require. The terms “hereunder”, “herein”, “hereby”, and similar terms refer to this EULA.
Cumulative Remedies. No right or remedy conferred by this EULA is exclusive of any other right or remedy conferred herein or by law or in equity. Rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
Ambiguous Terms. Any ambiguities in this EULA will not be strictly construed against the drafter of the language concerned but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting. This EULA will not be construed against any party by reason of its preparation.
Attorneys’ Fees. If any suit or other action is commenced to construe or enforce any provision of this EULA, the prevailing party, in addition to all other amounts such party is entitled to receive from the other party, shall recover its reasonable attorneys’ fees and court costs; provided however that such fee amount shall be restricted by the damages cap of Subscriber set forth in Paragraph 12, below.
Compliance with Legal Processes. Cognition Med cooperates with government and law enforcement officials to enforce and comply with the law. Cognition Med may, therefore, disclose any information if Cognition Med deems it reasonably necessary to: (a) satisfy any applicable law, regulation, legal process (such as a subpoena or court order) or enforceable governmental request; (b) enforce the EULA or the Services, including investigation of potential violations thereof; (c) detect, prevent, or otherwise address fraud, security or technical issues; or
(d) protect against harm to Cognition Med’s rights, property or safety, Cognition Med’s users or the public as required or permitted by law.
Accuracy and Integrity of Information. Cognition Med receives, transmits, and maintains health information submitted by health care providers. Cognition Med does not independently verify the accuracy of such information. Users are solely responsible for determining whether the information is suitable for their purpose, and reliance on the information is at the user’s sole risk.
15. APPLE, INC. APP STORE
The terms of this EULA (the “Terms”) apply to Subscriber’s use of the Services, including iOS applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
Both Subscriber and Cognition Med acknowledge that the Terms are concluded between Subscriber and Cognition Med only, and not with Apple, and that Apple is not responsible for the Application or the Services;
The Application is licensed to Subscriber on a limited, non-exclusive, non-transferrable, non- sublicensable basis, solely to be used in connection with the Services;
Subscriber will only use the Application in connection with an Apple device that is owned or controlled by Subscriber;
Subscriber acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
If the Application fails to conform to any applicable warranty, including those implied by law, Subscriber may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Subscriber will be to refund to Subscriber the purchase price, if any, of the Application paid by Subscriber to Apple;
Subscriber acknowledges and agrees that Cognition Med, and not Apple, is responsible for addressing any claims Subscriber or any third party may have in relation to the Application; Subscriber acknowledges and agrees that, if a third party claims that the Application or Subscriber’s possession and use of the Application infringes that third party’s intellectual property rights, Cognition Med, and not Apple, will be responsible for investigating, defending, settling and discharging any such infringement claim;
Subscriber represents and warrants that he, she or it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Subscriber is not listed on any U.S. Government list of prohibited or restricted parties;
Both Subscriber and Cognition Med acknowledge and agree that, in using the Application, Subscriber will comply with any applicable third party terms of agreement that may affect or be affected by such use; and
Both Subscriber and Cognition Med acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of the Terms, and that upon Subscriber’s acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against Subscriber as the third party beneficiary hereof.