IMPORTANT- READ CAREFULLY
This Use Agreement (“Agreement”) is a binding contract between you (the “Licensee”)
and eHealth Made EASY, LLC (“eHealth”). By using or accessing eHealth’s suite of
web-based electronic medical record keeping programs, software and services (all
or any part of which are hereinafter referred to as the “eHealth Services”), you
accept and agree to be bound by this Agreement. IF YOU DO NOT AGREE TO BE BOUND
BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT YOU WILL NOT BE
PROVIDED WITH ACCESS TO THE eHealth Services. Your use of the eHealth Services is
governed by the version of the Use Agreement in effect on the date you access eHealth’s
Services. eHealth may modify this Agreement at any time and without prior notice
to you. This Agreement is in addition to any other agreements between you and eHealth.
LICENSE
eHealth is granting to you a non-exclusive, limited right and license to access
or use the eHealth Services on any computer owned by or used in connection with
the same medical practice (the “Authorized Practice”)
1. SCOPE:
This Agreement is applicable to (i) those eHealth Services to which the Licensee
is being provided access by eHealth or eHealth’s agent; which eHealth Services,
or any part or component thereof eHealth may at any time update, revise, or alter;
and (ii) any updates, upgrades or enhancements to the any of the eHealth Services
now or hereafter provided to the Licensee by eHealth.
2. SOFTWARE LICENSE:
(i) Use. The Licensee may access those of the eHealth Services
which have been licensed to Licensee, on any computer owned by, and operated by
the Authorized Practice. The eHealth Services may only be accessed and used by members
or employees of the Authorized Practice.
(ii) Transferability. The Licensee may only transfer the
right to use and access the eHealth Services from one computer of the Authorized
Practice to another computer of the Authorized Practice, provided the eHealth Services
may be used solely in connection with the Authorized Practice. THE LICENSEE HEREBY
AGREES NOT TO PERMIT ACCESS TO THE eHealth SERVICES TO OTHER THAN MEMBERS OR EMPLOYEES
OF THE AUTHORIZED PRACTICE.
3. TERM AND TERMINATION:
This Agreement may be terminated earlier by either party at any time. Without prejudice
to any other rights to which it may be entitled, eHealth may terminate this Agreement
with immediate effect if Licensee: (a) ceases conducting business in the normal
course, or (b) fails to timely remedy a breach of this agreement. Upon termination,
Licensee shall immediately remove and cease to use the eHealth Services, and eHealth
shall have the right to terminate any access codes previously provided to the Licensee.
4. PASSWORD/ACCESS CODE SECURITY
If Licensee has been provided with a designated Password or Access Code, Licensee
is solely responsible for all activities that occur in connection with such Password
or Access code. Licensee should take steps to protect the confidentiality of such
Password or Access Code and should notify eHealth immediately if it becomes aware
of any disclosure, loss, theft or unauthorized use of such access code or password.
5. WARRANTY AND DISCLAIMER
EHEALTH DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT. THE EHEALTH SERVICES ARE PROVIDED “AS IS”. EHEALTH
DOES NOT WARRANT ALL OR ANY OF THE EHEALTH OR THE INTENDED FUNCTIONS WILL MEET LICENSEE’S
REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. EHEALTH DOES NOT WARRANT
THAT ANY OF THE EHEALTH SERVICES BEING PROVIDED ARE FREE FROM DEFECTS: EHEALTH AGREES
TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT ANY MATEIRAL DEFECTS, BUT DOES
NOT REPRESENT OR WARRANT THAT ANY DEFECTS OR INACCURACIES WILL BE CORRECTED. THE
PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION
OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL
BASIS OF THE BARGAIN BETWEEN THE PARTIES.
LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH EHEALTH IS RECEIVING
HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY EHEALTH OF THE RISK
OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION
WITH LICENSEE'S USE OF ANY OR ALL OF THE PADMS SERVICES. ACCORDINGLY, LICENSEE AGREES
THAT EHEALTH SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR OTHER DAMAGES OF ANY NATURE, ARISING
OUT OF THE LICENSING OR USE OF ANY OR ALL OF THE EHEALTH SERVICES.
6. GENERAL
This Agreement embraces the full, complete understanding of the parties as to the
subject matter hereof, and may not be altered or modified, except by written amendment
or collateral agreement which expressly refers to this Agreement and which is duly
executed by eHealth and the Licensee’s duly authorized representative. The parties
expressly agree that this Agreement supersedes all prior or contemporaneous proposals
and all other oral or written understandings, representations, conditions and other
communications between the parties relating to such subject matter, as well as the
terms of all contemporaneous or future purchase orders. Licensee shall not transfer
or assign this Agreement or any rights or obligations hereunder under operation
of law, change of control, or otherwise, without the prior written consent of eHealth.
Any attempted assignment or transfer in violation of the foregoing will be void.
This Agreement will be governed and interpreted in accordance with the laws of the
United States and the State of New York, excluding the application of it conflicts
of law rules. In the event of litigation between the Licensee and eHealth concerning
the eHealth Services the prevailing party in the litigation will be entitled to
recover reasonable attorney fees and expenses from the other party. If any part
of this Agreement is found void and unenforceable, it will not affect the validity
of the balance of the Agreement, which shall remain valid and enforceable according
to its terms. The Licensee agrees that the Software will not be shipped, transferred
or exported into any country or used in any manner prohibited by the United States
Export Administration Act or any other export law, restrictions or regulations.