1. LIMITED LICENSE. ScImage, Inc. (“we, “us”) grants to Licensee (“You”) a limited-scope License to use the SCIMAGE PICOM365.COM and / or PicomCloud software and any included third-party Software collectively the “Software”) along with the documentation for the Software ("Documentation"). This License authorizes You to use the Software via means of web site access (the “Site”). You are solely responsible for the results obtained from the use of the Software. You may use the Software and Documentation in the ordinary course of your business at your designated locations.
2. CONTENT. means all data, information, text, pictures, digital imagery and other content related to patients and other data that you may provide to us or to be processed by the Software. You own your Content. You are responsible for maintaining your own technical and procedural access controls and system security requirements and devices, necessary for maintaining Content privacy, confidentiality, integrity, authorization, authentication and non-repudiation and virus detection and eradication in order to maintain the accuracy of your Content. We act as a repository for your Content and are not responsible for ensuring that the Content you provide to us is correct, accurate or usable. You understand that providing access to your Content outside of the United States may be restricted by applicable law.
2.1. Access by SCIMAGE and Return of Content. We will allow authorized access to your Content by our personnel in accordance with our policies and procedures. Upon your written request within 30 days from the date our relationship terminates and at your expense, we shall return all Content held by us to You in our standard format. Upon the transfer to You of your Content, we, at our sole discretion, may delete all of the Content stored on PICOM365.COM and /or PicomCloud.
2.2. Use and Interpretation of Content. You assume full responsibility for any medical diagnosis or treatment resulting from the usage of the Content and agree to ensure that qualified medical personnel, who are given Content access, can determine the Content’s adequacy and quality; properly interpret the Content; and conduct themselves in a manner consistent with all applicable laws and regulations for patient care and patient data.
2.3. Conditions of Content Processing & Archiving. You understand that the Software uses data compression to facilitate faster transmission and storage. As a consequence some Content may have a loss of information associated with image processing functions (filters) or image data compression (lossy compression) operations and so Content on the Site may be lossless as well as lossy compressed. What this means is that once the Content is transmitted to us for storage, there could be a loss of Content quality once it is retransmitted back to medical personnel for review.
2.4. Licensee’s Representations, Warranties, Covenants, and Indemnification. represent and warrant that any Content that you transmit to us to store as your custodian is not prohibited Content and can be sent to us freely without any obligation, claim, restriction, limitation or condition to any third party or in violation of applicable law and that you will not misuse or abuse the Site. You agree to fully indemnify, defend and hold us harmless from any harm or loss to us from prohibited Content or misuse or abuse of the Site.
2.5. Internet Limitations. Sometimes the Internet breaks or doesn’t work properly. We will do what we can to remedy any Internet situation causing impaired, delayed, disrupted or corrupted Content that was not caused by us, but quite often it is beyond our control, third parties are responsible, and we both have to wait until they get their act together.
3. WARRANTIES AND LIMITATIONS
3.1. Performance. We warrant to You that if You use the Software properly it will properly work for the use in all material respects as described in our Documentation. If the Software doesn’t work that way then our obligation under this warranty is to correct any failure so it does perform in accordance with the Documentation.
3.2. Right to License; No Infringement. We warrant to You that we have the full legal right to for to use the Software. The Software does not infringe upon any United States patent, copyright, trade secret or other proprietary right of any third party. We will defend and indemnify You against any third party claim if we violate this warranty, but You need to promptly notify and cooperate with us and give us sole control of the defense, of any settlement and of any appeal. As your sole remedy we have the option, at our expense, to: (a) modify or replace all of the alleged infringing part of the Software so that it is no longer infringing, provided that the Software functionality does not materially change; or (b) procure for You the right to continue using the Software; or (c) remove the alleged infringing part of the Software and refund to You the fees paid by You to us over the last 12 months prior to the date of the alleged third party claim.
3.3. Exclusion for Unauthorized Actions and Results of Use. You understand that it’s your problem and not our obligation or liability under this Agreement for any Software performance problem, claim of infringement or any other issue caused by your unauthorized or improper use or modification of the Software, with other software, any old, unsupported Software, any unapproved third-party software, or any improper acts or omissions by You.
3.4. Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTIONS 3.1 AND 3.2 OF THIS AGREEMENT, THE SOFTWARE AND DOCUMENTATION IS PROVIDED "AS IS." WE ARE NOT MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT OR INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON¬INTERFERENCE, OR NON-INFRINGEMENT. THAT’S IT.
3.5. Limitations. EXCEPT FOR A THIRD-PARTY CLAIM UNDER SECTION 3.2, OUR TOTAL LIABILITY UNDER THIS AGREEMENT WILL UNDER NO CIRCUMSTANCES EXCEED THE INITIAL FEES ACTUALLY PAID BY YOU TO US OVER THE LAST 12 MONTHS. NOR SHALL WE BE LIABLE FOR THE COSTS OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES.
3.6. Consequential Damage Exclusion. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU OR ANY OTHER AFFILIATED PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DATA OR SOFTWARE, WORK STOPPAGE OR IMPAIRMENT OF OTHER GOODS OR DELIVERY OF SERVICES, OR ANY INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING SUCH DAMAGES ARISING FROM ANY BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND WHETHER OR NOT FORESEEABLE, EVEN IF WE HAVE BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BY YOU.
3.7. Other Limitations. Under no circumstances will any affiliated person or customer of yours or any other person for which You granted Software access be considered a third-party beneficiary of this Agreement. All the rights and remedies you have for using the Software are exclusively expressed in this Agreement. There aren’t any others.
4. CONFIDENTIALITY AND OWNERSHIP
4.1. SCIMAGE's Proprietary Items, Ownership Rights. Our Software and all intellectual property associated with our Software including patents, copyrights, trademarks, trade secrets and all other proprietary rights exclusively belong to us. You are obtaining a limited License.
4.2. Use Restrictions. You will not do, attempt to do, nor permit any other third party to do, any of the following: (a) use the Software for any purpose, at any location or in any manner not specifically authorized by this Agreement; (b) make or retain any copy of the Software except as specifically authorized by this Agreement; (c) create or recreate the source code for the Software, or re-engineer, reverse engineer, decompile or disassemble the Software; make derivative works;(d) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Software or fail to preserve all copyright and other proprietary notices in the Software; (e) sell, market, license, sublicense, distribute or otherwise grant to any third party the use of the Software; or (f) use the Software to conduct any type of service bureau or time-sharing operation or to provide remote processing, network processing, network telecommunications or similar services to any third person in competition with us.
4.3. Enforcement. If You should breach this Agreement, then in addition to all other rights and remedies which we have at law or in equity, we can seek a decree of specific performance or an injunction issued by any competent court, requiring a breach by You to be cured or enjoining all other third parties involved in harming us.
5.1. Termination by Customer. You may immediately terminate this Agreement, by giving written notice of termination to us, upon the occurrence of any of the following events: (a) we breach any of the material obligations of this Agreement and we don’t cure the breach within thirty (30) days after You have given us written notice describing the breach; (b) we go out of business or go bankrupt..
5.2. Termination by US. We may immediately terminate this Agreement, by giving written notice of termination to You, upon the occurrence of any of the following events:(a) You breach any of your material obligations under this Agreement and do not cure the breach within thirty (30) days after we have given You written notice describing the breach; (b) you go out of business or go bankrupt.
5.3. Effect of Termination. Upon a termination of this Agreement You will stop using the Software, return all copies of the Software to us. You understand that You remain liable for any payments due us up to the date of termination.
6. OTHER PROVISIONS
6.1. Parties in Interest. You understand that You cannot assign this Agreement or any of its rights hereunder without our prior written consent, except our consent is not required if you make an assignment to (a) a purchaser of or successor to substantially all of your business unless such purchaser or successor is a competitor of us; or (b) an affiliate of your, provided that the scope of the License granted under this Agreement does not change and You guarantee the obligations of the assignee. Any assignment by you in breach of this Section is void.
6.2. Export Laws; Restricted Rights. You agree that you will comply with all applicable United States export laws and regulations. You agree that You will not export or re-export directly or indirectly (including via remote access) any part of the Software to any jurisdiction outside the United States.
6.3. Governing Agreement. IF THERE IS ALSO A CUSTOMER SALES AGREEMENT THEN THIS AGREEMENT IS SUBJECT TO ALL OF THE PROVISIONS OF THAT CUSTOMER SALES AGREEMENT, INCLUDING WITHOUT LIMITATION THE PAYMENT OBLIGATIONS, ACCEPTANCE TERMS, CUSTOMER OBLIGATIONS, LIABILITY EXCLUSIONS AND LIMITATIONS, GOVERNING LAW AND JURISDICTION, AND ALL OTHER TERMS AND CONDITIONS SET FORTH IN THE CUSTOMER SALES AGREEMENT. THE CUSTOMER SALES AGREEMENT WILL BE DEEMED TO MODIFY, AMEND, SUPERSEDE AND CONTROL THIS AGREEMENT TO THE EXTENT ANY PROVISION OF THE CUSTOMER SALES AGREEMENT IS INCONSISTENT OR IN CONFLICT WITH ANY PROVISION OF THIS AGREEMENT.
7. FEES; PAYMENT TERMS; SUSPENSION OF SERVICES
7.1. Fees You agree to pay all amounts due, including any late payment fees, as are specified in an online fee table, schedule, signed quotation or in an invoice (collectively, “Fees”). All Fees are quoted in United States currency. You will provide us with a valid and updated credit card information or with a valid Purchase Order or alternative document reasonably acceptable to us. If You provide us with credit card information, You authorize us to charge your credit card for all services provided by us. Such charges shall be made as due, either monthly or in accordance with any different billing frequency mutually agreed upon by both parties in written format. If the payment will be made via a method other than credit card (e.g., Purchase Order), we will invoice You in accordance with the relevant terms of the applicable agreement. Except as otherwise provided in this Agreement, Fees are non-refundable. Any charges incurred by us as a result of changes to an order, cancellations or returns by You will be paid by You. All applicable duties, taxes or similar amounts (other than based on our net income), You agree to pay, or to promptly reimburse us for, all such amounts. If You don’t pay us we reserve the right to suspend any or all services until You pay all overdue accounts.
7.2. Fee Modifications. We reserve the right to modify the Fees by providing written notice to You. If You do not object in writing to our Fee modification within ninety (90) days of receipt of notice from us, then our Fee modification shall be deemed to have been accepted by You. On the other hand, if You do object in writing to the Fee modification within (90) days of receipt of notice from us, then You shall have the right to terminate this Agreement upon thirty (30) days prior written notice to us.
7.3. Payment Terms. The following payment terms shall be applicable with respect to all amounts payable to us under this Agreement: (a) if elected by You, we will charge your credit card on file for all Fees or if You do not have a valid credit card on file, we will invoice You for the payment of Fees. All such amounts shall be due and payable within thirty (30) days after your receipt of our invoice. (b) Late payments are subject to an interest charge, which is the lower of: (i) 1.5% of the outstanding balance per month, or (ii) the maximum legal rate. If any unpaid amounts are referred to collection, You agree to reimburse us for all costs and expenses of collection, including all of our reasonable attorneys’ fees.
7.4. Suspension of Services. If any amount owing by You under this or any other agreement for our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized us to charge to your credit card), we may, without limiting our other rights and remedies, accelerate your unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our services to You until such amounts are paid in full.
7.5. Credit Card Purchase Terms. The following additional terms are in effect for any services purchased by our customers using credit cards (“Credit Card Holder” or “Customer”) for payment. In the event of conflict between the Credit Card Purchase Terms listed below and the other provisions of this Agreement, the Credit Card Purchase Terms below shall exclusively control for credit card purchases. THERE IS NO WAIVER TO THESE TERMS FOR CREDIT CARD PURCHASES.
(a) Holder: The term "Credit Card Holder" as used under these Terms is defined as the person or entity in whose name the credit card was issued by the bank or financial institution that appears on the credit card. When a complete a purchase of services from us using a credit card for payment, they agree to be bound by these Terms. Such a Customer acknowledges they are the Credit Card Holder authorized to make the purchase using the credit card.
(b) ALL SALES ARE FINAL. THERE ARE NO RETURNS, REFUNDS, OR CANCELLATIONS ACCEPTED.
(c) Chargeback Policy: "Chargebacks” are the reversal of a credit/debit card purchases made by Customer. Customer acknowledges they understand our no return policy on credit card purchases. Customer agrees that in accordance with the no return policy they will not initiate chargeback proceedings with their card issuer for purchases of services made from us.
(d) Customer agrees that if they file a chargeback with their credit card company, in regards to purchases of services made from us under this Agreement, then Customer agrees to reimburse us for all costs and expenses including cost of the services and for any expenses, including cost of suit and legal fees, incurred by us due to Customer’s actions.
(e) Customer further agrees if they initiate a chargeback on a valid, authorized purchase of services, then Customer authorizes us to recover the amount of the chargeback and any fees referenced above by any means we deem appropriate or necessary, including but not limited to re-charging their credit card for the chargeback.
8. PRIVACY NOTICE
8.1. Our Commitment to Privacy. Your privacy is important to us and we are committed to protecting your information as well as your patients’. To better protect your privacy we provide this notice explaining our online information practices and the choices you can make about the way your information is collected and used.
8.2. This notice applies to all information collected or submitted on PICOM365.COM or PicomCloud. We typically collect the following personal information: (a) Name (b) Title (c) Email Address (d) Phone Number (e) Medical Facility Name (f) Address of Medical Facility
8.3. How We Use This Information. We use the information You provide to contact You in order to provide You with information on our products and services. This information is also used to initially determine your needs and the manner in which we can provide solutions that make sense for your workflow. We do not sell or share this information with outside parties.
8.4. Our Commitment to Data Security/HIPAA. To prevent unauthorized access to patient data, maintain data accuracy and ensure the correct use of patient information, we have put into place appropriate physical, electronic and managerial procedures in accordance with the HIPAA Security Rule in compliance with the administrative, physical and technical safeguards of 45 CFR 164.308, 164.310 and 164.312. These procedures are also compliant with applicable HIPAA Privacy Rule requirements set out in 45 CFR Section 164.504(e) and HITECH electronic health record privacy requirements and notification of breach rules.
8.5. How to Contact Us: In the event you have questions or concerns about our privacy policies, please call us at 1-866-SCIMAGE (1-866-724-6243) or send us an email at firstname.lastname@example.org.