1. Acceptance.By using, evaluating or testing PERSEVERE™ beta support tool and any related services (“PERSEVERE Beta”); or registering with Optima Integrated Health, Inc. (“OPTIMA”); You agree to be bound by this evaluation license agreement (this “Agreement”). OPTIMA reserves the right, at its sole discretion, to modify this Agreement at any time effective upon notice to You. Continued use of PERSEVERE Beta following notice shall mean You have read and accept such modifications. This Agreement is effective as of the earlier of either: (i) the date this Agreement is accepted by selecting the “I Accept” option presented on the screen upon accessing PERSEVERE Beta, or (ii) the date You begin using PERSEVERE Beta.
2. License Grant & Restrictions.OPTIMA hereby grants You a trial, royalty-free, limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide right and license for the Permitted Use of PERSEVERE Beta, subject to the terms and conditions contained herein. For the purposes of this Agreement, the Permitted Use shall mean using, evaluating or testing PERSEVERE Beta using de-identified patient cases [i.e., scenarios containing no patient Personal Health Information (PHI)]. In return, You agree to make reasonable efforts to: help OPTIMA test specific features and functions of PERSEVERE™; respond to OPTIMA’s inquiries; and to notify OPTIMA of errors or suggestions for improvement in PERSEVERE™. After using PERSEVERE Beta, You, in Your sole discretion, may, but are not required to, engage in discussions regarding a further business relationship with OPTIMA.
2.1 You shall maintain the confidentiality of any password used to access PERSEVERE Beta. You shall not publish or otherwise make available PERSEVERE Beta or related content to any third party without first submitting to, and receiving permission from, OPTIMA in writing.
2.2 You shall not, nor permit any employee or other third party to, by any means: reverse engineer or ascertain, derive or appropriate the source code or any trade secret information in PERSEVERE Beta. You shall not alter or remove any notices, graphics or text in PERSEVERE Beta or modify PERSEVERE Beta. You may not rent, lease or sublicense PERSEVERE Beta in any way. Your rights in PERSEVERE Beta are limited to those expressly granted in this Agreement. OPTIMA reserves all other rights and licenses not expressly granted hereunder.
2.3 You may use PERSEVERE Beta only in connection with the Permitted Use and are responsible for all activity occurring under the user name and password provided. You shall notify OPTIMA immediately of any unauthorized use of any password or account or any other known or suspected breach of security of which You are aware. You shall not: (i) use PERSEVERE Beta to send or store spam; infringing, obscene, unlawful or tortious material; material containing software viruses or other harmful matter; (ii) interfere with or attempt to gain unauthorized access to PERSEVERE Beta; (iii) otherwise fail to abide by all applicable laws, treaties and regulations in connection with Your use of PERSEVERE Beta, including those related to data privacy, HIPAA, international communications and the transmission of technical or personal data.
2.4 PERSEVERE Beta is intended only as a tool, which can be used to assist medical providers in coordinating, managing and communicating about routine Healthcare Services. The Service is not intended for use in any emergency or urgent matter, or for children or pregnant women. As a result of its limited role as a support tool to the medical provider, OPTIMA has no control over the appropriateness, accuracy, quality, timeliness, scope, price or risks of or associated with any Healthcare Service. Therefore, you agree to release OPTIMA from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Healthcare Services (including any injuries or disability arising therefrom). To the extent that any Healthcare Services are offered to any Patient, they are provided by the applicable Clinical Partner and its affiliated Clinicians, not OPTIMA. Accordingly, Healthcare Services are not deemed to be within the scope of the Service provided by OPTIMA, and OPTIMA shall have no obligation or liability regarding Healthcare Services.
3. Ownership. This Agreement is not a sale and all rights, title and interest to PERSEVERE Beta or related content, modifications thereto, and information provided by OPTIMA’s and Your intellectual property are the property of and shall remain with OPTIMA. The OPTIMA 4 BP name, logo and associated product names are trademarks of OPTIMA, and no right or license is granted to use them. You shall refrain from any unauthorized reproduction or disclosure of PERSEVERE Beta or any portion thereof. You shall not contest or challenge in any manner OPTIMA’s ownership of PERSEVERE Beta. You acknowledge that noncompliance with the provisions herein would cause irreparable harm to OPTIMA and that such noncompliance shall entitle OPTIMA to equitable relief as well as money damages without the requirement of posting bond.
4. Term; Termination. This Agreement shall remain in effect until terminated by either of the parties. Any unauthorized use or copying of PERSEVERE Beta or related content shall be deemed a material breach of, and shall automatically terminate Your rights under, this Agreement. OPTIMA, in its sole discretion, may terminate Your password, account or use of PERSEVERE Beta at any time with or without cause. You may terminate this Agreement upon seven (7) days’ notice to OPTIMA.
5. Representations & Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to PERSEVERE Beta.
PERSEVERE BETA IS INTENDED TO BE A TEST ONLY, AND SHOULD NOT BE USED IN CONNECTION WITH ANY REAL-LIFE MEDICAL CASES, SCENARIOS, PATIENTS OR INDIVIDUALS. PERSEVERE BETA IS NOT FDA OR HIPAA COMPLIANT, AND IT IS SOLELY YOUR RESPONSIBILITY TO AVOID ANY USE OF PERSEVERE BETA WHICH WOULD VIOLATE ANY SUCH APPLICABLE LAW OR REGULATION.
6. Indemnification. You shall indemnify, defend and hold harmless OPTIMA against any claims and expenses (including attorneys' fees and costs) arising out of: (i) a violation of Your representations and warranties; or (ii) Your breach of this Agreement.
7. Disclaimer of Warranties. OPTIMA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF PERSEVERE BETA, OR ANY RELATED CONTENT. OPTIMA DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF PERSEVERE BETA SHALL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, PERSEVERE BETA, OR SYSTEM; (B) ANY STORED DATA SHALL BE ACCURATE OR RELIABLE, (C) ERRORS OR DEFECTS SHALL BE CORRECTED OR TECHNICAL SUPPORT PROVIDED, OR (D) PERSEVERE BETA OR RELATED SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PERSEVERE BETA AND ALL RELATED CONTENT ARE PROVIDED TO YOU “AS IS.” ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY OPTIMA.
8. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to You.
9. Notice. OPTIMA may give notice by means of a general notice on PERSEVERE Beta, OPTIMA’s website or through electronic mail or written communication to Your address on record. You may give notice to OPTIMA (effective when received by OPTIMA) only by any of the following: letter sent by confirmed email to OPTIMA at the following email address: email@example.com; or letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to OPTIMA at the following address: 164 Townsend Street, Unit 11, San Francisco, CA-94107.
10. Assignment; Change in Control. This Agreement may not be assigned by You without the prior written approval of OPTIMA. OPTIMA may freely assign this Agreement.
11. General. This Agreement shall be governed by the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any disputes or claims arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of California. Neither this Agreement nor use of PERSEVERE Beta creates a partnership, employment or agency relationship between the parties. OPTIMA’s failure to enforce any right or provision in this Agreement shall not constitute a waiver unless OPTIMA so acknowledges and agrees in writing. This Agreement comprises the entire agreement between the parties regarding Your right to use PERSEVERE Beta and supersedes all prior discussions or agreements between the parties regarding the subject matter contained herein.