End-User License Agreement for Animal Services Portal (EULA) [Animal Control]
IMPORTANT
This End-User License Agreement (the “Agreement”) is a legal agreement between you (whether as an individual or an entity) and HitsLab LLC, a Delaware limited liability company (hereafter the “Licensor, or “HitsLab”) regarding the use of HITSLab software entitled “HITSLab Animal Services Portal” which may include user or other documentation that is available “on-line” or in electronic form (the “Software”). Any software provided along with this Software that is associated with a separate end-user license agreement is licensed to you under the terms and conditions of that separate end-user license agreement.
DEFINITIONS
“Account” means a user’s subscription and/or means to access the System.
“Approved Users” means any User you have authorized to access your Licensed Content.
“Applicable Law(s)" means all applicable laws, regulations, rules, and guidance to which you are subject, whether by jurisdiction or organizational affiliation, including, but not limited to, any ethics or institutional review board (IRB) requirements, or institution or office/practice policies, or procedures.
“Confidential Information” means confidential or proprietary information of the other Party, including, without limitation, patient information, medical records, pricing information, software, functional and technical specifications, designs, drawings, analysis, research, processes, methods, ideas, “know-how”, business information, marketing information and materials and other information designated as confidential expressly or understood to be confidential by the circumstances in which it is provided. Confidential Information does not, however, include: (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the recipient; or (iii) information received by the recipient from a third party who was free to disclose it.
“Content” means data and electronic information of any kind, including but not limited to text, digital images and metadata, uploaded or otherwise provided to the Services and/or the System.
“Health Information” means information, including text, digital images, sound recordings and other data, concerning past, present or future veterinary health condition or past, present or future veterinary treatment or payment for veterinary treatment that is traceable or identifiable to a veterinary subject (e.g. a pet or other animal) owned by an individual and to that individual.
“Intellectual Property” means any and all software, technology, specifications, databases, code and all copyrights and all other intellectual property rights in and to the foregoing, including all derivative works, enhancements, customizations, modifications or upgrades thereto, owned, created, or provided by HITSLab in connection with the Services or otherwise.
“Notice” means the posting of any modification or amendment (on the system/on the website) thirty (30) days prior to the date upon which the modification or amendment becomes effective.
“Personal Information” means information that identifies Users of the System or as the owners of a veterinary patient or identifies an individual veterinary patient, and all pertinent information concerning any individual’s use of the System.
“Software” means the components of the System that are constituted by computer applications, whether installed and run locally on your Devices or accessed “on-line”, through the internet, on a “cloud” basis or otherwise.
“System” means the means the applications and platforms to which you have been granted access, which may include, but are not limited to, the HITSLab Animal Services Portal application, the HITSLab mobile applications, web applications, website, servers and networks, wherever situated, and the coded instructions (whether in the form of source code, object code, or interpreted code), logic, texts, rules and operating system data, and any associated metadata, buildfiles, makefiles, configuration files, database schema and database contents, for the foregoing.
“User” means you and any other user of the System.
“User ID” means a unique User identification used by a User to access the System.
“Your Health Information” means patient Health Information accessed by a clinician,
including You or Your authorized staff.
AUTHORITY TO ENTER AGREEMENT
If you are entering into this Agreement on behalf of a company or business, you represent
that you have the authority to bind such entity as well as any of its affiliates or subsidiaries
whose agents will utilize the System. In such case, the terms “you” or “your” shall also refer
to such entity and its subsidiaries and affiliates, and each of their successors and assigns, as
well as any employee or agent acting by or on behalf of any of the foregoing, as applicable
(you and HITSLab together as the “parties” and each as a “party”). If you do not have such
authority, or if you do not agree with this Agreement, you may not use the System or any of
the HITSLab applications.
a. By entering into this Agreement you also agree to the Terms & Conditions
Agreement for HitsLab Services (the “TOS”) incorporated by reference herein. If any
term of this Agreement conflicts any term of the TOS, this Agreement shall control.Access to System.
a. Access Rights.
Subject to the payment of the applicable fees and your compliance
with the terms and conditions of this Agreement, HITSLab and its licensors
hereby grant you the right to utilize the System, for your professional veterinary
practice or other animal-services practice purposes only, exclusively through your
Account and grant you such licenses as necessary to utilize the System on a
limited, non-exclusive, personal, revocable, non-sublicensable and non-transferrable basis. You may access the System from any device that will run the Software, such as: desktop or laptop computers (together as “Computer Equipment”) or smartphones and tablets (together as “Mobile Devices”; Mobile Devices and Computer Equipment together as “Devices” and each as a “Device”) that you own or control and as permitted by this Agreement and any other terms of use that may be applicable to the System or the use thereof. All access to and utilization of the System is provided under the terms and conditions of the Agreement. Aside from the licenses expressly granted herein, no licenses are made in or to the System or Software and no ownership right in the Services or Software is conveyed hereby. All rights not expressly granted under this Agreement are reserved by HITSLab and its licensors.b. User IDs.
A User ID may only be used by one person at a time on one Device at a
time. Your Account has one (1) primary User ID with which it is associated (your
“Primary ID”). You may provision additional User IDs through the
administrative control panel made available to you through your Account for the
rates as detailed therein.c. Fees.
You agree to pay all fees and charges associated with your Account and
User IDs on a timely basis. Unless otherwise stated, all fees and charges are due
and payable in advance, are non-refundable, and are exclusive of any applicable
federal, state, or local taxes. All such fees and charges (including any taxes and
late fees, as applicable) will be charged to the payment method you provided
when you created your Account. You will maintain a valid payment method
during the term of your use of such System. Fee schedules and rates are listed
within the administrative control panel made available through your Account,
which such fee schedules and rates may be changed, discounted or increased from
time to time within the sole discretion of HITSLab. Certain fees may be detailed
as non-refundable and payable in advance and you hereby acknowledge and
consent to such terms. Some of the features available to you through the System
may be available for use without fees provided that you consent to receive
advertisements, as detailed pursuant to Section 10 of this Agreement.
Accordingly, you hereby consent to being provided with such advertisements and
advertising content as detailed in this Agreement.Ownership and Intellectual Property.
The Software is owned by HITSLab and its licensors and is protected by the intellectual
property laws, among other laws, of the United States. HITSLab and its licensors own
and retain all rights, title and interest including, patents, trade-marks, copyrights, trade
secrets and other intellectual property rights in and to the System and Software, including
but not limited to source code, object code, interpreted code, configuration files, database
schemas, database contents, images, photographs, animation, themes, titles, characters,
video, audio, music and text embodied or contained, therein. If the System contains any
user documentation which is provided only in “on-line” or electronic form, you may print
one (1) copy of such documentation for backup or archival purposes. You may not copy
the printed materials accompanying the System for purposes other than mentioned herein.
Nothing in this Agreement shall be construed as granting to you any title and intellectual
property rights in and to the Software or the System, except for the limited license
mentioned herein.
a. RIGHT, TITLE AND INTEREST
You acknowledge that all right, title and interest in any and all technology,
including the hardware and software provided by HITSLab in connection with the
System and any trademarks or service marks of HITSLab or third parties whose
products or services are utilized in connection with HITSLab’s provision of the
System (other than information you provide; collectively, the “HITSLab
Intellectual Property”) is vested in HITSLab and/or in HITSLab’s licensors.
Unless otherwise expressly stated in this Agreement and as necessary to utilize
the System, you shall have no right, title, claims or interest in or to the HITSLab
Intellectual Property, and you may not use, copy, modify or translate the
HITSLab Intellectual Property or related documentation, or decompile,
disassemble or reverse engineer the HITSLab Intellectual Property, or grant any
other person or entity the right to do so. Unless otherwise expressly stated in this
Agreement, you are not authorized to distribute or to authorize others to distribute
the HITSLab Intellectual Property in any manner without the prior written
consent of HITSLab.
b. LICENSE TO USE YOUR CONTENT
You hereby provide an irrevocable, worldwide, non-exclusive license to HITSLab
to any intellectual property rights, whether copyrights, trademarks, trade dress,
patents, trade secrets, rights of publicity or right of privacy or otherwise, which
you may have in any Content or other materials (the “Licensed Materials”)
which you may provide to the System so as to allow HITSLab (a) to operate and
maintain the System and provide the System to its Users, (b) to maintain and
reproduce such Licensed Materials within the System as permitted by applicable
law, (c) to provide access to your Licensed Materials to Approved Users, and (d)
to incorporate anonymized Licensed Materials into derivative works as permitted
by applicable law, including, but not limited to, publications concerning statistical
research, statistical compilations and reports on or about the System.Restrictions.
Except as expressly permitted herein: (i) you may not rent, lease, loan, or grant a security
interest in the System, or transfer your rights or license to use the System or Software; (ii)
you may not reverse-engineer, decompile or disassemble any part of the System or the
Software; and (iii) you may not modify, distribute copy, adapt, translate, or create
derivative works based upon the System or Software and all accompanying materials.Termination.
This Agreement is effective for an unlimited duration unless and until terminated in
accordance with this section. You may terminate this Agreement at any time. Without
prejudice to any other rights it may have, the Licensor may terminate this Agreement
upon written notice if you do not abide with the terms and conditions contained herein.
Licensor may also, at any time, terminate Agreement upon written notice to you for any
reason or no reason as determined within its sole discretion. Upon the termination of this
Agreement for any reason, you must and will immediately cease all use of the System
and destroy all copies of the Software and all of its components on your Devices.Updates.
This rights and licenses granted herein are limited to the version of the System and
Software made available to you by HITSLab and its licensors through your Account and
does not include subsequent any versions of the System or Software not made available
to you through your Account. However, the HITSLab and its licensors may develop,
create or issue updates of the System or Software from time to time. At its sole option,
HITSLab may make such updates available to any number of its Users as it may decide
and your use of the System does not mean that HITSLab must make available any such
updates to you.Maintenance
Subject to applicable laws, HITSLab, at its sole discretion, may provide maintenance and
support services with respect to the System. You agree, together with HITSLab, that no
other party has any obligation whatsoever to furnish any maintenance and support
services with respect to the System or Software.NO WARRANTIES; ADDITIONAL DISCLAIMERS.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE SYSTEM IS
PROVIDED “AS IS” WITHOUT ANY WARRANTIES YOU ASSUME ALL RISKS
AND RESPONSIBILITIES ASSOCIATED WITH THE SELECTION AND USE OF
THE SYSTEM AND FOR THE INSTALLATION OF, USE OF AND RESULTS
OBTAINED FROM THE SOFTWARE AND THE SYSTEM. NEITHER HITSLAB
NOR ITS LICENSORS MAKES ANY WARRANTY THAT THE SYSTEM WILL BE
ERROR-FREE OR FREE FROM INTERRUPTION OR FAILURE. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, HITSLAB ON BEHALF OF ITSELF AND ITS
LICENSORS DISCLAIM ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES AND CONDITIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS WITH
RESPECT TO THE SYSTEM, THE SOFTWARE AND ANY ACCOMPANYING
WRITTEN MATERIALS.a. YOU AGREE THAT HITSLAB AND ITS LICENSORS TAKE NO
RESPONSIBILITY FOR AND DISCLAIMS ANY AND ALL LIABILITY
ARISING FROM ANY INACCURACIES OR DEFECTS IN THE
INFORMATION, SOFTWARE, COMMUNICATION LINES, INTERNET
OR YOUR INTERNET SERVICE PROVIDER ("ISP"), COMPUTER
HARDWARE OR SOFTWARE, OR ANY OTHER SERVICE OR DEVICE
THAT YOU USE TO ACCESS THESERVICES.b. Carrier Lines
YOU ACKNOWLEDGE THAT ACCESS TO THE SYSTEM WILL BE
PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS
LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL
EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND
THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES
(COLLECTIVELY, "CARRIER LINES") OWNED, MAINTAINED, AND
SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND
INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND
OUR CONTROL. HITSLAB AND ITS LICENSORS ASSUME NO
LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY,
SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION
WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY
DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS,
TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER
INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE
CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR
RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE,
NATIONAL, AND INTERNATIONAL LAWS.Limitation of Liability.
YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR
USE OF THE SYSTEM AND THE INFORMATION CONTAINED THEREIN OR
COMPILED BY THE SYSTEM. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL HITSLAB OR ANY OF ITS LICENSORS BE LIABLE
FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION
DAMAGES FOR LOSS OF DATA, DAMAGE TO EQUIPMENT, HARDWARE OR
SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS, ARISING OUT OF THE
USE OR INABILITY TO USE THE SYSTEM, UNDER ANY THEORY OF
LIABILITY, WHETHER IN CONTRCT, TORT, BREACH OF CONTRACT OR
ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NEITHER HITSLAB NOR ITS LICENSORS
MAKE ANY WARRANTY OR REPRESENTATION THAT THE INFORMATION OR
FUNCTIONS CONTAINED IN THE SYSTEM WILL MEET YOUR
REQUIREMENTS. FURTHERMORE, NEITHER HITSLAB NOR ITS LICENSORS
WARRANT THAT ANY SYSTEM ERRORS, DEFECTS OR INEFFICIENCY WILL
BE CORRECTED, NOR DOES HITSLAB OR ANY OF ITS LICENSORS ASSUME
ANY LIABILITY FOR FAILURE TO PROVIDE SUPPORT SERVICES AND TO
CORRECT ANY SUCH ERROR, DEFECT OR INEFFICIENCY. YOU
UNDERSTAND THAT UNDER NO CIRCUMSTANCES SHALL HITSLAB OR ITS
LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, ACCESSORY,
EXEMPLARY OR PUNITIVE DAMAGES SUFFERED BY YOU, ANY PARTY
CLAIMING ON BEHALF OF OR THROUGH YOU, OR ANY OTHER THIRD
PARTY INCLUDING FROM OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF. IN NO EVENT
WILL THE HITSLAB AND ITS LICENSORS TOTAL LIABILITY TO YOU FOR
ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN
CONTRACT, EXTRACONTRACTUAL OR OTHERWISE, EXCEED THE AMOUNT
PAID BY YOU FOR THE SOFTWARE.a. Unauthorized Access; Lost or Corrupt Data
NEITHER HITSLAB NOR ITS LICENSORS ARE RESPONSIBLE FOR
UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES, OR
EQUIPMENT BY INDIVIDUALS OR ENTITIES USING THE SYSTEM
OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT,
CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES,
PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE
SYSTEM, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR
DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY
RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT
OF THE SYSTEM. YOU HEREBY WAIVE ANY DAMAGES
OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS,
OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING
ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE
MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-
PARTY SOFTWARE. NEITHER HITSLAB NOR ITS LICENSORS ARE
RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION
TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE
SYSTEM.Privacy
a. Anonymized Information. The privacy of Health Information is very important
to HITSLab. HITSLab does not intend to make commercial use of Health
Information, except as expressly stated herein. HITSLab may aggregate and
anonymize Health Information so that it contains no Personal Information
(“Anonymized Information”). HITSLab may share Anonymized Information
with third parties on a commercial basis. Additionally, HITSLab may use
Anonymized Information to place targeted ads and advertising content, viewable
by you, within the System and within emails sent to the email address(es) you
provide to us, and you hereby expressly consent to the foregoing. Prior to any
such sharing of Anonymized Information, such Anonymized Information will be
certified by a third-party, independent statistician to ensure that it the Health
Information contained therein cannot be associated with any natural person
without substantial effort.
b. Collection of Data. The System can be used to help you monitor track veterinary
patients’ health-related measurements and facilitate documentation of those
measurements into an electronic medical record. As such, the data the System
collects from the veterinary patient gets stored on the Devices used to access our
System and the HITSLab’s System itself. The data on Devices that you access is
only accessible to the veterinary patient owner and the staff you have provided
your User ID credentials, but the data stored within the HITSLab System may
accessed in accordance with HITSLab’s Privacy Policy, which is incorporated by
reference into this Agreement and available at [http://hitslabs.com/privacy].
HITSLab reserves the right to change its Privacy Policy, at its sole discretion,
without specific notification other than posting an update on its website.
Moreover, neither HITSLab nor its licensors shall bear any liability for any loss,
damage or expense arising, directly or indirectly, from amendments to its Privacy
Policy. Each time you use the System, you consent to the collection and use of
Health Information by HITSLab according to the terms of its Privacy Policy as it
then reads. You understand that third parties, including cloud providers and the
manufacturers of the devices on which you access the System and Software, may
collect, use or disclose your Health Information uploaded to their systems or
cloud services providers while you are using your mobile device or other software
and that such collection, use or disclosure is subject to such third parties’ privacy
policies.
c. Consent. As an veterinary-care or other animal services provider, you shall obtain
written consent from the individual responsible for each of your veterinary
patients to access and store each such veterinary patient’s Health Information on
the System as permitted by law and, where appropriate and permitted, share it
with your business partners who require access to Health information, subject to
the requirements of applicable privacy laws and regulations. In addition, use of
said Health Information for purposes of treatment, payment (including but not
limited to veterinary insurance claims and reimbursement) and operations of the
veterinary practice, as well as for other purposes is strictly governed by laws and
regulations. You are solely responsible for compliance with these health
information privacy and security laws and regulations and agree to indemnify,
defend and hold harmless HITSLab and licensors and affiliates for any
claims or proceedings with regard to your uses and disclosures of Health
Information of your patients that you access, obtain and use by and through
the System.Technical Requirements
You are solely responsible for: (a) the selection of the System to achieve your intended
results; (b) obtaining, provisioning, configuring, maintaining, paying for, and protecting
from loss and damage all equipment and services necessary for the installation and use of
the System and all data used in association with the System; (c) providing a safe and
suitable location and environment for the installation and use of the Software; (d) the use,
installation, implementation and operation of the System and the results obtained
therefrom; (e) scanning for and preventing the receipt and transmission of viruses, Trojan
horses, worms or other destructive or disruptive components; (f) maintaining complete
and current backup and archival copies of all data contained on your Devices prior to
installing or using the System; and (g) maintaining the security of the Devices and
networks you use to access the system, including the installation of software, operating
system, browser, security and other updates and patches as necessary.Security: HITSLab will protect Health Information and Personal Information using
reasonable security measures. While the security measures are expected to reasonably
protect such information, neither HITSLab nor its licensors warrant that the System, or
any data stored thereon, will be completely secure. There are risks inherent in placing
information on and accessing information from the Internet if you have any concerns
regarding the security of your information or the use of the Internet to access Health
Information or Personal Information, you should consider not utilizing the HITSLab
System.Unauthorized Access; Lost or Corrupt Data
NEITHER HITSLAB NOR ITS LICENSORS ARE RESPONSIBLE FOR
UNAUTHORIZED ACCESS TO ANY HEALTH INFORMATION OR
PERSONAL INFORMATION STORED ON OR TRANSMITTED
THROUGH THE SYSTEM, OR TO ANY DATA, FACILITIES, OR
EQUIPMENT BY INDIVIDUALS OR ENTITIES USING THE SERVICES
OR SYSTEM OR FOR UNAUTHORIZED ACCESS TO, ALTERATION,
THEFT, CORRUPTION, LOSS, OR DESTRUCTION OF ANY DATA,
FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH
THE SYSTEM, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR
DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY
RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT
OF THE SYSTEM. YOU HEREBY WAIVE ANY DAMAGES
OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS,
OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING
ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE
MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-
PARTY SOFTWARE. NEITHER HITSLAB NOR ITS LICENSORS ARE
RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION
TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE
SYSTEM.Compliance with Applicable Laws
It is your responsibility to comply with, and ensure that your use of the System complies
with, all applicable federal, local, state and foreign laws and regulations, including
without limitation all laws relating to data privacy, international communications and the
exportation and transmission of technical data and other regulated materials. You
represent and warrant that (i) you are not located in a country that is subject to a U.S.
Government embargo, or that has been designated by the U.S. Government as a “terrorist
supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited
or restricted parties. The System is not available in all languages nor is it available in all
countries. Neither HITSLab nor its licensors makes any representation that the System is
appropriate or available for use in any particular location. HITSLab and its licensors
reserve the right to change, suspend, remove, or disable access to the System at any time
without notice. In no event will HITSLab or its licensors be liable for the removal of or
disabling of access to any such System.Indemnification
You agree to indemnify HITSLab and its directors, officers, members, owners,
employees, agents, licensors, successors and permitted assigns, and the successors and
predecessors to each of the foregoing, as well as other Users, from and against any and all
Claims and Proceedings directly or indirectly arising from, connected with or relating to:
(a) your use of the System; (b) any breach by you of any of the representations,
warranties or provisions of this Agreement; (c) the actions of any person gaining access
to the System under a User ID assigned to you, including any actions which adversely
affect the System or any information accessed through the System, including but not
limited to any security breaches of the System; and (d) your negligence or willful
misconduct. In this Agreement, “Claims” means third party claims, counterclaims,
complaints, demands, causes of action, liabilities, obligations, damages, legal fees, costs,
expenses, and disbursements, including without limitation reasonable attorneys’ fees and
court costs, of any nature or kind, whatsoever and howsoever arising, whether known or
unknown, whether in law or in equity or pursuant to contract, tort, extra-contractual
theory or statute, and whether in any court of law or equity or before any arbitrator or
other body, board or tribunal; and “Proceedings” means third party actions, suits,
proceedings, and hearings of any nature and kind in any court of law or equity or before
any arbitrator or other body, board or tribunal.Third Party Intellectual Property Claims
You agree, that in the event of any third party claim that the System or your utilization of
the System infringes that third party’s intellectual property rights, HITSLab will be solely
responsible for the investigation, defense, settlement and discharge of any such
intellectual property infringement claim. You acknowledge that HITSLab is solely
responsible for addressing any claims of any third party relating to the System or your
possession and/or use of that System, including, but not limited to: (i) product liability
claims; (ii) any claim that the System fails to conform to any applicable legal or
regulatory requirement; and (iii) claims arising under consumer protection or similar
legislation.Severability and Complete Understanding.
If any provision of this Agreement is found to be contrary to law or otherwise invalid or
unenforceable by a court of competent jurisdiction, then such provision shall be limited to
the minimum extent necessary to effect the order of the court and construed in a way to
most closely reflect the intentions of the parties. All other provisions shall remain in full
force and effect. HITSLab’s failure to insist on or enforce strict performance of this
Agreement shall not constitute a waiver of any provision or any right, nor shall any
course of conduct between HITSLab and you or any other party be deemed to modify any
provision of this Agreement. Both parties agree that this Agreement is the complete and
exclusive statement of the mutual understanding to the parties and supersedes and cancels
all previous written, oral, or other agreements, communications, and understandings
relating to the subject matter of this Agreement. Both parties further agree that any
waivers and modifications must be in writing and signed by the party making such
wavier, expect as otherwise provided in this Agreement. No agency, partnership, joint
venture, employment, or other kind of business relationship is created as a result of this
Agreement unless expressly granted by the terms of this Agreement and you do not have
any authority of any kind of bind HITSLab in any respect whatsoever.Governing Law, Arbitration and Waiver of Class Action.
This Agreement shall be governed by the internal laws of the State of New York without giving effect to any
conflict of laws principles that may provide the application of the law of another
jurisdiction. For any disputes not subject to the arbitration provisions below, you will to
submit to the personal jurisdiction of the state and federal courts located within New
York County. By entering into this agreement, you and HitsLab are each waiving the
right to trial by jury or to participate in a class action lawsuit. Each party hereby
waives trial by jury to the fullest allowable extent of the law for any such claim or dispute
arising from or related to this Agreement or the use of the Services. Any claim or dispute
in connection with this Agreement shall be resolved in a cost effective manner through
binding arbitration on an individual basis. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association in effect at the time of the arbitration, except as they may be modified by this
Agreement or by mutual agreement of the parties. The seat of the arbitration shall be in
New York County. The arbitration shall be conducted by one arbitrator, selected by
HITSLab. The arbitration award shall be in writing and shall be final and binding on the
parties. The award may include an award of costs, including reasonable attorney’s fees
and disbursements. Any judgment on the award rendered by the arbitrator may be entered
by any tribunal of competent jurisdiction. You hereby affirmatively consent to the
dispute resolution and arbitration process described herein and waive all defenses
or objections thereto, whether based on personal jurisdiction, forum, venue, service,
or otherwise. Any and all personal appearances related to arbitration will take place in
New York County, New York. Notwithstanding the foregoing, we may seek injunctive or
other equitable relief to protect our intellectual property rights or in response or
anticipation to any of your breaches of this Agreement in any court of competent
jurisdiction. HitsLab shall not be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any injunctive or other
equitable remedy referred to in this section and you irrevocably waive any right you may
have to require the obtaining, furnishing or posting of any such bond or similar
instrument.Miscellaneous.
The section titles in this Agreement are for convenience only and have no
legal or contractual effect; as used in the Agreement, the word “including” means
“including but not limited to”. Whenever the context so requires, each pronoun or verb
used herein shall be construed in the singular or the plural sense and each capitalized
term defined herein and each pronoun used herein shall be construed in the masculine,
feminine or neuter sense. The construction of this Agreement shall not take into
consideration the Party who drafted or whose representative drafted any portion of this
Agreement, and no canon of construction shall be applied that resolves ambiguities
against the drafter of a document.Contact Information
Should you have any questions, complaints or claims with respect to this Agreement or
the Software, or if you desire to contact HITSLab for any reason, please contact:HITSLab LLC
c/o Barton LLP
420 Lexington Avenue
Suite 1830
New York, NY 10170
Or www.hitslabs.com/contactAdditional License and Copyright Notices. The System includes licensed components
third party software packages, including “open source” packages, the copyright notices
for which can be viewed at [www.hitslabs.com/components].