End-User License Agreement for Animal Services Portal (EULA)
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 patient (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 you personally as a User of the System or as the owner of a veterinary patient, identifies your veterinary patient, and all pertinent information concerning you and your 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 personal use 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 computers, medical practice electronic medical records applications, platforms or services (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"). Your User ID is associated with your Health Information.c. Fees.
You agree to pay all fees and charges associated with your Account, if any, 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 11 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.DISCLAIMER REGARDING HEALTH & MEDICAL INFORMATION.
THE SYSTEM IS NOT A SUBSTITUTE FOR, AND DOES NOT PROVIDE, VETERINARY ADVICE. THE SOFTWARE IS PROVIDED FOR PERSONAL EDUCATIONAL, INFORMATIONAL AND CONVENIENCE PURPOSES ONLY AND IS NOT TO BE USED FOR THE DIRECTION OF CARE OF INDIVIDUAL VETERINARY PATIENTS UNLESS EXPCITLY SPECIFIED AND CONSENT IS OBTAINED BY YOUR VETERINARY PROVIDER FOR THIS USE. THE SYSTEM IS GENERAL IN NATURE AND IS NOT INTENDED FOR ANY PARTICULAR PURPOSE, INCLUDING, IN ANY WAY, TO BE A SUBSTITUTE FOR A VETERINARY EXAM OR PROFESSIONAL VETERINARY ADVICE, VETERINARY OPINION, DIAGNOSIS OR TREATMENT, SYMPTOM ASSESSMENT, HEALTH COUNSELING OR VETERINARY OPINION FOR VETERINARY PATIENTS. THE SOFTWARE IS LIMITED TO PROVIDING USERS WITH ACCESS ONLY TO VETERINARY HEALTH INFORMATION AND OTHER INFORMATION STORED BY SUCH USERS AND THEIR VETERINARY-CARE PROVIDERS. ALWAYS SEEK THE ADVICE OF APPROPRIATELY QUALIFIED AND REGULATED VETERINARY PROVIDERS WITH ANY QUESTIONS YOU MAY HAVE WITH REGARD TO A SPECIFIC VETERINARY CONDITION FOR WHICH YOU ARE CONCERNED. IT IS IMPORTANT NOT TO DISREGARD OR DELAY SEEKING CONSULTATIVE ADVICE BECAUSE OF SOMETHING YOU HAVE READ OR VIEWED IN THE SYSTEM. RELIANCE ON ANY INFORMATION PROVIDED IN THE SYSTEM IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION.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 same into an electronic medical record. As such, the data it collects from the veterinary patient gets stored on the Device 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 veterinary providers to whom you have provided consent to utilize the System in the collection of and access to your Health Information (as detailed below), 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.
If you are using the System at the direction of and in the course of veterinary treatment by a veterinary-care provider, that veterinary-care provider shall obtain written consent from you to permit your Health Information to be loaded into and managed by the System, and for the provider to view your information on the System as permitted by law. Please note that if you are using the System for veterinary treatment purposes at the direction of a veterinary-care provider and in the course of veterinary treatment, that provider may access your veterinary information and may share it with his, her or its business partners who require access to veterinary patient information, pursuant to applicable privacy laws and regulations. In addition, your veterinary Health Information may also be used or disclosed by the veterinary-care provider 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 permitted by relevant laws and regulations. The Health Information accessed by your veterinarian or other veterinary health professional that is uploaded or otherwise transferred to your health record maintained by your veterinarian or other veterinary health professional is owned by you or your veterinarian or other veterinary health professional, as determined by the law in your jurisdiction.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].
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