IMO END-USER LICENSE AGREEMENT

The Software (defined hereunder) contains the following products from Intelligent Medical Objects, Inc. (“lMO”): Problem IT terminologies (collectively the “Service’). The Service and the “Elation Health” (“Software”) are separate products provided by separate entities. Your (either an individual or single entity) (“END-USER”) use of the Service in conjunction with the Software is subject to the terms and conditions of this End User License Agreement (“EULA”).

In consideration of the rights and restrictions contained herein, END-USER agrees as follows:

  1. Grant of License

The license granted herein is a non-exclusive, non-transferable license to use the Service solely in conjunction with the Software for internal use: (i) in a clinical setting; and (ii) in a non-production/non-clinical setting for backup, archival, support, testing, training and demonstration purposes; provided END-USER complies with the restrictions set forth in Section 2.

  1. Restrictions

END-USER shall not cause or permit others to copy, duplicate, redistribute, loan, rent, retransmit, publish, license or sub license or otherwise transfer, or commercially exploit, the Service, in whole or part. END-USER shall not prepare derivative works or incorporate the Service, in whole or part, in any other system or work; or reverse engineer, decompile, disassemble, decrypt, translate, alter, adapt or modify the Service, in whole or part.

  1. Ownership

This EULA provides only a license of rights to use the Service, and does not provide for the sale or other transfer of title. Except for third party content included in the Service, IMO has and shall have exclusive title to and ownership of all of its products, including the Service and of all of its sub-parts and components, and of all updates, modifications, alterations, customizations, derivative works, revisions or enhancements thereof, and of all software, source code, and trade secrets, and proprietary research, equations, screens, techniques, methodology, analysis, programming or know-how thereof.

Any ideas or requests for terms submitted by END-USER to the Software vendor or IMO for inclusion in the Service shall be considered part of a derivative work of the Service and shall be owned by IMO with all rights assigned by END-USER to IMO. END-USER shall not be charged for such regular inclusion of added terms. END-USER will have a perpetual, non-exclusive license to use, display or modify these requested terms apart from the Service.

  1. Technical Warranty

The Service, as provided by IMO, does not include any disabling devices such as devices that result in the electronic recapture of programming, undocumented functions, passwords, keys, security devices or trap doors, or any computer viruses.

  1. Disclaimer of Warranties

EXCEPT FOR WARRANTIES THAT MAY NOT BE DISCLAIMED AS A MATTER OF LAW OR THAT ARE INCLUDED HEREIN, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS AND IMO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OR NATURE OF THE SERVICE, NONINFRINGEMENT, COMPATIBILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

ANY WARRANTIES EXPRESSLY PROVIDED HEREIN DO NOT APPLY IF: (I) THE END-USER ALTERS, MISHANDLES OR IMPROPERLY USES, STORES OR INSTALLS ALL, OR ANY PART, OF THE SERVICE; (II) THE END-USER USES, STORES OR INSTALLS THE SERVICE ON A COMPUTER SYSTEM WHICH FAILS TO MEET THE SPECIFICATIONS FOR THE SOFTWARE; OR (III) THE BREACH OF WARRANTY ARISES OUT OF OR IN CONNECTION WITH ACTS OR OMISSIONS OF PERSONS OR ENTITIES OTHER THAN IMO.

  1. Assumption of Risk

THE END-USER ACKNOWLEDGES THAT THE SERVICE IS NOT A SUBSTITUTE FOR THE CARE PROVIDED BY LICENSED HEALTH CARE PRACTITIONERS. AS BETWEEN THE END-USER AND IMO, THE END-USER HEREBY ASSUMES FULL RESPONSIBILITY FOR: (A) ITS USE OF THE SERVICE; AND (B) ENSURING THE APPROPRIATENESS OF USING AND RELYING UPON THE INFORMATION IN VIEW OF ALL ATTENDANT CIRCUMSTANCES, INDICATIONS, AND CONTRAINDICATIONS. IMO SHALL NOT BE RESPONSIBLE AND HAS NO LIABILITY TO ANY PERSON FOR: (A) ANY ERRORS, MISSTATEMENTS, INACCURACIES OR OMISSIONS REGARDING CONTENT DELIVERED THROUGH THE SERVICE; (B) ANY DELAYS IN OR INTERRUPTIONS OF SUCH DELIVERY; OR (C) ANY DATA OR INFORMATION INPUT INTO THE SERVICE BY THE END-USER. ADDITIONALLY, IMO UNDERTAKES NO OBLIGATION TO SUPPLEMENT OR UPDATE CONTENT OF THE SERVICE.

THE SERVICE DOES NOT ENDORSE DRUGS, DIAGNOSE PATIENTS, OR RECOMMEND THERAPY. THE SERVICE IS AN INFORMATIONAL RESOURCE DESIGNED TO ASSIST LICENSED HEALTH CARE PRACTITIONERS IN DOCUMENTING THE CARE OF THEIR PATIENTS. THE INFORMATION CONTAINED WITHIN THE SERVICE IS INTENDED FOR USE ONLY BY PHYSICIANS AND OTHER HEALTH CARE PROFESSIONALS WHO SHOULD RELY ON THEIR CLINICAL DISCRETION AND JUDGMENT IN DIAGNOSIS AND TREATMENT.

  1. Disclaimer of Liability

EXCEPT FOR IMO’S OBLIGATIONS UNDER SECTION 8(B), IN NO EVENT SHALL IMO BE LIABLE TO ANY PERSON INCLUDING, BUT NOT LIMITED TO END-USER AND PERSONS TREATED BY OR ON BEHALF OF END-USER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS EULA OR THE SERVICE. !MO’S TOTAL LIABILITIES ARISING OUT OF OR RELATED TO THIS EULA ARE LIMITED TO THE FEES RECEIVED BY IMO FROM THE SOFTWARE’S LICENSOR FOR END-USER’S USE OF THE SERVICE.

  1. Indemnification
      A. By END-USER. END-USER agrees to indemnify, defend, and hold IMO harmless from any claims, costs, liabilities,judgments, attorneys’ fees, settlements, penalties or other losses in all causes including, but not limited to losses for tort, personal injury, medical malpractice or product liability arising out of or relating to: (a) the END-USER’s use of the Service; (b) any data or information input into the Service by END-USER; (c) END-USER’s negligence or intentional misconduct; and (d) any breach of this EULA by END-USER. In the event that END-USER indemnifies IMO, then: (i) END-USER will retain qualified counsel with demonstrable experience defending claims of the type to be defended, who shall be preapproved by IMO; and (ii) END-USER agrees to let IMO participate in the defense of any action, at IMO’s option and expense.

     

      B. By IMO. IMO agrees to indemnify, defend, and hold END-USER harmless against third party claims, costs, liabilities, judgments, attorneys’ fees, settlements, and penalties brought against END-USER arising out of, related to, or alleging that the IMO Service infringes on a United States patent, trademark or copyright of a third party (collectively “Indemnified Claim”); provided END-USER promptly, but within thirty (30) days, notifies IMO in writing of such Indemnified Claim. IMO shall have sole control of the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided END-USER will have the right to approve the terms of any settlement or compromise that restricts its rights granted under this Agreement or subjects it to any ongoing obligations. IMO shall have no indemnification obligation to END-USER to the extent that an Indemnified Claim arises out of: (i) END-USER’S violation of this EULA; (ii) information incorporated into the Service by END-USER or Software vendor; (iii) a modification or addition to the Service made by END-USER or Software vendor; or (iv) the use of the Service in combination with any program or equipment or any part thereof not furnished or approved by IMO.
  1. Intellectual Property Disclaimers; Use of Trademarks

END-USER will not alter, cover or remove any trademark, copyright or other proprietary rights notice placed by IMO or a third party in or on the Service. END-USER will not use or modify any IMO or third party trademarks, trade names, service marks, corporate names or logos or those of its affiliates (collectively “Marks”) or any advertising materials containing any of the foregoing unless it has obtained the prior written approval of IMO, which may be withheld for any reason. Goodwill associated with the Marks inures solely to IMO and the respective third party owners. END-USER acknowledges and agrees that it shall not, directly or indirectly, do anything inconsistent with the validity, ownership, distinctiveness or integrity of the Marks, or the goodwill attaching thereto, nor shall it assist any third party in doing so.

  1. END-USER Documentation

END-USER is responsible for generating any user documentation related to the Service.

  1. Security

END-USER shall establish the appropriate firewalls and security systems, such that the Service is accessed only by authorized employees or contractors of END-USER and is not used in a manner that would violate the terms of this EULA.

  1. Third Party Beneficiary

END-USER agrees that IMO shall be, and is hereby, named as an express third-party beneficiary of this EULA for the purpose of enforcing at law and at equity all rights under this EULA against END-USER, the covenants of END-USER and the warranty disclaimers and limitations of liability set forth in this EULA, whether or not such provisions make specific reference to IMO or the Service.

  1. Term and Termination

The term of this EULA begins upon installation of the Software and/or Service and continues for the term specified in END-USER’s Software license agreement. This EULA may be terminated by IMO or Software vendor at any time if: (i) END-USER violates any provision of this EULA; or (ii) Software vendor’s relationship with IMO terminates. If this EULA is terminated for any reason, END-USER agrees to immediately return or destroy all copies of the Service and all companying items and certify the return or destruction thereof.

  1. Third Party Content

Other Content. END-USER acknowledges that the Service includes third-party content. END-USER agrees to the terms and conditions set forth in Schedule B of this EULA.

  1. General

END-USER will ensure that anyone with authorized access to the Service will comply with the provisions of this EULA If any provision of this EULA is determined to be unenforceable, the rest of this EULA will remain in full force. Headings in this EULA are for convenience only and are not part of this EULA The delay or failure to assert a right herein or to insist upon compliance with any term or condition of this EULA shall not constitute a waiver of that right or excuse a subsequent failure to perform any term or condition. END-USER may not assign any of the rights herein without prior written approval from IMO. This EULA will be governed by the State of Illinois without regard to choice-of-law principles. The courts of the State of Illinois and/or the United States District Court for the Northern District of Illinois shall have exclusive jurisdiction over any action arising under or related to the subject matter of this EULA and the parties agree to submit to the jurisdiction of the courts of the State of Illinois and the United States District Court for the Northern District of Illinois. This EULA is the entire agreement between END-USER and IMO as to the subject matter. Any amendment must be in writing signed by both END-USER and IMO.