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THIS ONLINE USER and SOFTWARE LICENSING AGREEMENT (the "Agreement") is made as of the acceptance of this Agreement between MEDMODULE, INC., a Washington corporation ("MedModule"), and Licensee.
RECITALS:
A. MedModule produces interactive informational programs ("Programs") regarding certain medical rehabilitation protocols (each, a "Protocol"), marketed and sold by MedModule under the name RehabModule. The Programs are designed to supplement patient education regarding the relevant Protocol.
B. Licensee desires to obtain rights to enable its patients to use the Programs, and MedModule is willing to provide Licensee such rights, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Provision of Programs. MedModule shall provide to Licensee, and Licensee shall obtain from MedModule, access to each Program developed by MedModule for Protocols performed by a healthcare or fitness industry service provider who is affiliated with Licensee or otherwise has privileges to perform such Procedure at Licensee's facilities. Each Program shall be supplied by MedModule to Licensee via the Internet or some other medium as such Program is generally released by MedModule to its Licensees.
(a) Fees. Licensee shall pay to MedModule all fees as set forth on MedModule's web site at either www.medmodule.com or www.rehabmodule.com as supplemented from time to time as new programs are introduced.
2. General Conditions of Use; New Programs.
(a) License Grant. Subject to the terms and conditions hereof, during the term hereof, MedModule hereby grants to Licensee the non-exclusive right and license, under the Proprietary Rights of MedModule and its licensors, to permit Administrators and Authorized Users to access and execute the Licensed Software on MedModule's Application Server only with Supported Browsers through the Internet. Licensee and Authorized Users shall access and use the Licensed Software only for the purposes set forth in this Agreement. Licensee shall not have the right to relicense or sell rights to access or use the Licensed Software or to transfer or assign rights to access or use the Licensed Software, except for permitted uses by Administrators and Authorized Users as expressly provided herein. All rights not expressly granted to Licensee herein are expressly reserved by MedModule.
(b) Ownership and Use; Other Restrictions. Title to the Licensed Software and all Proprietary Rights embodied therein, as well as other software installed on MedModule's Application Server, shall remain in and be the sole and exclusive property of MedModule.
3. Licensee Representations, Warranties and Covenants.
(a) Approvals; Compliance With Laws. Licensee and the authorized service providers maintain and shall continue to maintain, in good standing, all approvals, permits, certificates and consents of governmental and self-regulatory organizations necessary to conduct or to continue to perform their respective businesses.
(b) No Practice of Medicine, Endorsement or Reliance. Licensee acknowledges and agrees that neither MedModule nor its employees, advisors, members or managers are engaged in the practice of medicine or the giving of medical advice, or will do so, whether through the Programs or in the course of rendering services under this Agreement.
4. MedModule Representations, Warranties and Covenants; Disclaimers.
Warranty Disclaimers. NEITHER MEDMODULE NOR ANY OF ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND MEDMODULE AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. LICENSEE ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE PROGRAMS, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. INFORMATION CONTAINED IN THE PROGRAMS AND PATIENT COMMUNICATIONS DURING THE USE OF THE PROGRAMS WILL BE TRANSMITTED OVER A MEDIUM THAT IS BEYOND THE CONTROL AND JURISDICTION OF MEDMODULE AND ITS SUPPLIERS. ACCORDINGLY, MEDMODULE ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE PROGRAMS.
5. Term.
(a) This Agreement shall commence upon acceptance and shall continue in full unless it is terminated.
(b) Termination. This License is effective until terminated. Licensee’s rights under this License will terminate automatically without notice from MedModule if Licensee fails to comply with any terms of this License. Upon termination of this License, Licensee shall immediately cease all use of the Programs.
6. Waivers, Indemnification; Damages Limitations. Actual or deemed acceptance of Programs by Licensee shall constitute a waiver by Licensee, on its own behalf and on behalf of all service providers and other affiliates, of any claims against MedModule and MedModule's officers, employees, managers, members, advisors, affiliates and representatives relating to the Program, its content and/or its functionality, except to the extent such functionality subsequently is impaired due to causes within MedModule's reasonable control. WITHOUT LIMITING THE GENERALITY OF SECTION 2(a), THE INDEMNIFICATION PROVISIONS AND DAMAGES LIMITATIONS SET FORTH IN THE LICENSE AGREEMENT ARE BY THIS REFERENCE INCORPORATED IN AND MADE A PART OF THIS AGREEMENT, AND SHALL APPLY TO ALL ACTIONS AND OMISSIONS MADE UNDER, OR ARISING OUT OF, THIS AGREEMENT AND THE PERFORMANCE OR NON-PERFORMANCE HEREOF. IN NO EVENT WILL MEDMODULE BE LIABLE FOR PERSONAL INJURY, OR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PROGRAMS.
7. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by the internal substantive laws of the State of Washington, without giving effect to its conflicts of law principles.
(b) Entire Agreement, Counterparts. This Agreement shall be binding upon and inure to the benefit of MedModule and Licensee and their respective successors and permitted assigns. This Agreement constitutes the complete statement of the agreement by and between MedModule and Licensee.
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