End User License Agreement (EULA) Terms and Conditions
1. DEFINITIONS
The following terms, as they appear in this End User License Agreement (EULA), shall have the corresponding meanings set forth below for purposes of this EULA.
1.1 “Applicant” means the individual and any Persons of his or her household who are potential beneficiaries of government-funded health care or other benefits programs and whose Protected Health Information is disclosed using the Software.
1.2 “CHCF” means the California HealthCare Foundation, a California non-profit public benefit corporation.
1.3 “Derivative Works” means a work that is based upon one or more preexisting works such as a revision, modification, change, enhancement, addition, translation, abridgement, condensation, expansion, or any other form in which such preexisting work may be recast, transformed, or adapted, and if prepared without authorization of the owner of the copyright in such preexisting work, would constitute copyright infringement. For purposes hereof, Derivative Works shall also include any compilation that incorporates such a preexisting work.
1.4 “Documentation” means any text materials that set forth the functions, operations and use of the Software.
1.5 “Health Information” (as defined under HIPAA) means any information, whether oral or recorded in any form or medium, that: (1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
1.6 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, including, without limitation, the privacy and security standards, requirements and implementation specifications adopted under 45 CFR Parts 160 and 164.
1.7 “Individually Identifiable Health Information” (as defined under HIPAA) is information that is a subset of Health Information, including demographic information collected from an individual, and: (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual.
1.8 “Intellectual Property Rights” means any patent, copyright, trade secret, trademark, trade dress and any other intellectual property rights currently subsisting or arising in the future.
1.9 “License” shall have the meaning set forth in Section 2.1.
1.10 ”Protected Health Information” means Individually Identifiable Health Information that is transmitted or maintained in electronic or any other form or media.
1.11 “Software” means the Internet-based computer program known as “Health-e-Arizona” or “One-e-App” including any updates or Derivative Works of the Software.
2. LICENSE
2.1 Grant. Licensor hereby grants to Licensee a royalty-free and fully paid-up, nonexclusive, revocable, nontransferable, license, without the right to sublicense to use the Software and (if any) Documentation (the “License”) for the following purposes:
(a) Access the Software on-line via the In
ternet and use the Software solely for the purpose of application and enrollment to local, state and federal public health or social services programs; and
(b) Reproduce the Documentation (if any provided by Licensor) and incorporate all or any portion of the Documentation in documentation and training materials prepared by Licensee, in each case solely for internal use by Licensee for the purpose specified in Section 2.1(a) and provided that the copyright notices and other proprietary legends of CHCF are included on each copy of the Documentation and such materials.
2.2 Reservation of Intellectual Property Rights. The Software and Documentation involve valuable Intellectual Property Rights of CHCF. CHCF reserves all Intellectual Property Rights to the Software and Documentation. No title to or ownership of Intellectual Property Rights related to the Software or Documentation are transferred to Licensee under this EULA. CHCF retains all Intellectual Property Rights in and to the Software and Documentation and to all copies of the same, in whatever form contained.
3. OBLIGATIONS OF LICENSEE.
3.1 Limitations and Restrictions. Licensee shall:
(a) Use the Software and Documentation solely for the purposes described in Section 2.1(a);
(b) Not access the Software except as provided in Section 2.1(a), nor merge the Software with any other software, modify the Software in any way, or create any Derivative Works;
(c) Not remove, alter or obscure any such notices on Documentation (if provided by Licensor); and
(d) Not authorize any third party to access the Software (whether by disclosing user names, passwords or otherwise), nor transfer any of its rights or obligations in this EULA.
3.2 Protection Against Unauthorized Use. Licensee shall promptly notify Licensor of any unauthorized use of the Software or Documentation which comes to Licensee’s attention. Licensee shall immediately notify Licensor of any legal proceeding initiated by Licensee in connection with such unauthorized use.
4. TERMINATION
4.1 Termination At Will. Licensor may terminate this EULA upon delivery of written notice to Licensee.
4.2 Post-Termination. Upon termination of this EULA, Licensee shall promptly cease use of the Software and Documentation and destroy (and in writing certify such destruction) or return to Licensor all copies of Documentation (if any) then in Licensee’s possession or control.
4.3 Survival. Sections 2.3, 3, 4, 5, 6 and 7 and all other provisions of this EULA which may reasonably be interpreted or construed as surviving the termination of this EULA, shall survive the termination of this EULA.
5. DISCLAIMER OF WARRANTIES
5.1 THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; AND (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY, OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF CHCF, THE CENTER, OR SUB-SUBLICENSOR (WHETHER ACTIVE, PASSIVE OR IMPUTED). LICENSOR DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE AND DOCUMENTATION IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, IS ASSUMED BY THE LICENSEE. LICENSOR HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE SO
FTWARE AND THE DOCUMENTATION.
5.2 Damage Limitation. IN NO EVENT WILL LICENSOR OR CHCF HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHER CAUSE OF ACTION) FOR ANY INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFIT OR BUSINESS) EVEN IF LICENSOR OR CHCF OR ITS EMPLOYEES AND REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. INDEMNITY
Licensee shall indemnify, defend and hold Licensor and CHCF and their respective officers, directors, employees and agents, harmless from and against any and all liabilities, claims, demands, suits and actions, including, without limitation, reasonable attorneys’ fees and costs, arising out of or resulting from Licensee’s use of the Software or Documentation, including, without limitation, from Licensee’s or its employees’, agents’, or contractors’ negligent act or omission, breach of contract, willful misconduct, breach of any of the obligations set forth in Section 3.2, or failure to comply with applicable laws and regulations.
7. MISCELLANEOUS
Licensee acknowledges and understands that the rights and obligations under this EULA have been sublicensed from CHCF. Therefore, Licensee acknowledges and agrees that its obligations hereunder remain in effect for as long as it continues use the Software, and such obligations shall be for the benefit of CHCF and shall be directly enforceable by CHCF. In addition, all rights of Licensor under this EULA shall be directly enforceable by CHCF. Licensee will not assign (directly, by operation of law or otherwise) this EULA or any of its rights under this EULA without the prior written consent of Licensor. Any failure of Licensor to insist upon or enforce performance by Licensee under this EULA, or to exercise any rights or remedies under this EULA will not be interpreted or construed as a waiver or relinquishment of Licensor’s right to assert or rely upon such provision, right or remedy in that or any other instance; rather the same will be and remain in full force and effect. Except as may be otherwise provided in a written agreement between Licensor and Licensee signed by both parties (“Written Agreement”), this EULA supersedes any and all prior agreements between Licensor and Licensee relating to the Software and/or Documentation. No amendment of this Agreement will be valid unless set forth in a written instrument signed by Licensor. If there is a conflict between this EULA and the terms of any Written Agreement, the terms of the Written Agreement shall control. This EULA will be interpreted, construed and enforced in all respects in accordance with the laws of the state of California without reference to its choice of law rules.
