Terms of Service
Terms of Service
Terms and Conditions
Welcome to CHIROSIGHT – a division of BIOKINEMETRICS, INC.
Thanks for using our ChiroSight products and services (“Services”). The Services are provided by BIOKINEMETRICS, INC. located at 211 E 4th St, Carroll, Iowa 51401
By using our Software or Services, you are agreeing to these terms and the terms provided in the “BIOKINEMETRICS Software and Application Restricted- Use License Agreement” (“License Agreement”). Please read these Terms and Conditions (“Terms”, “Terms and Conditions”, License Agreement) carefully before completing the subscription sign up or the software (the “Service”) operated by BIOKINEMETRICS, INC (“us”, “we”, or “our”).
Our Services are very diverse, so sometimes additional terms or product requirements (including age requirements) may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services.
Terminology
The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer notice, and any orall Agreements: “Client”, “You” and “Your” refer to you, the person accessing this website and accepting the Company’s terms and conditions. “The Company”, “Ourselves”, “We” and “Us” refer to our Company. “Party”, “Parties” or “Us” refers to both the Customer and ourselves, or either the Customer or ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether through formal meetings of a fixed duration, or by any other means, with the express purpose of meeting the Client’s needs in terms of providing the Company’s declared services / products, in accordance with and subject to applicable US laws. Any use of the above terminology or other words in the singular, plural, capital letters and/or plural, and/or these terms, is considered interchangeable and therefore a reference to them.
Using our Services
You must follow any policies made available to you within the Services.Don’t misuse our Services. For example, don’t interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.
Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. You may not use content from our Services unless you obtain permission from its owner or are otherwise permitted by law. These terms do not grant you the right to use any branding or logos used in our Services. Do not remove, obscure, or alter any legal notices displayed in or along with our Services.
In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.
Some of our Services may be available on mobile devices. Do not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.
Privacy Statement
We are committed to protecting your privacy. BIOKINEMETRICS’sprivacy policiesexplain how we treat your personal data and protect your privacy when you use our Services. By using our Services, you agree that BIOKINEMETRICS can use such data in accordance with our privacy policies.
Only authorized employees within the company who, in the course of their duties, can access and use information collected from individual customers.
We are constantly reviewing our systems and data to ensure the best possible service to our customers. Government authorities have created specific offences for unauthorized actions against computer systems and data. We will investigate such actions with a view to bringing legal action and/or civil action for damages against those responsible.
Purchases
If you wish to purchase any product or service made available through the Service (“Purchase”), you may be asked to supply certain information relevant to your Purchase including, without limitation, your Clinic Name, Clinic Owner, Primary Provider, EIN/SS#.
Subscriptions
You will be billed in advance on a recurring monthly basis. The payment card you provide will be charged the amount stated on the web page corresponding to the product you purchase, and your payment card will automatically be charged the same monthly amount every thirty (30) days thereafter. This fee obligation will continue until 12 monthly payments have been made based on the service package you selected.There is no refund allowed for License Fees or Monthly Fees paid under this Agreement. This is a binding non-cancellable agreement for a total of 12 monthly payments with automatic recurring annual renewals for additional 12-month terms. You may cancel the next 12-month term with a written notice at least 30 days prior to the renewal of the next term.
Software in our Services
When a Service requires or includes downloadable software, this software may update automatically on your device once a new version or feature is available. Some Services may let you adjust your automatic update settings.
BIOKINEMETRICS gives you a non-assignable and non-exclusive license to use the software provided to you by BIOKINEMETRICS as part of the Services during your subscription term. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by BIOKINEMETRICS, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.
Disclaimer
Exclusions and Limitations
The information contained on this website is provided on an ” as is ” basis. To the fullest extent permitted by law, this company:
- excludes all representations and warranties with respect to the Service, this website and its content or that are or may be provided by affiliates or any other third party, including with respect to any inaccuracy or omission in this website and/or the Company’s documentation; and
- excludes any liability for damages arising out of or in connection with your use of this website or any Services. BIOKINEMETRICS, and BIOKINEMETRICS’s suppliers and distributors, will not be responsible for lost profits, revenues, or data, financial losses or indirect, special, consequential, exemplary, punitive damages or damage caused to your computer, computer software, systems and programs and data relating thereto or any other direct or indirect, consequential or incidental damages.
Liability for our Services
To the extent permitted by law, the total liability of BIOKINEMETRICS, and its suppliers and distributors, for any claims under these terms, including for any implied warranties, is limited to the amount you paid us to use the Services.
In all cases, BIOKINEMETRICS, and its suppliers and distributors, will not be liable for any loss or damage.
Business uses of our Services
Yourclinic and business entity accepts these terms. It will hold harmless and indemnify BIOKINEMETRICS and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
Cancellation Policy
The Service will not be canceled mid-term. A minimum of 30 days notice (prior to the end of your Service Term) of cancellation is required. Such notice may be given, in person, by email, mobile phone, and/or fax, or by any other means, and will be accepted subject to written confirmation. You may cancel the next 12-month term with a written notice at least 30 days prior to the renewal of the next term.
Modifying and Terminating our Services
We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.
BIOKINEMETRICS has the right to terminate any Service Agreement for any reason whatsoever, including the termination of services already in progress. BIOKINEMETRICS may also stop providing Services to you or add or create new limits to our Services at any time.
Refunds Policy
No refund will be offered when a service is deemed to have commenced and is, for all intents and purposes, in progress.
Log Files
We use IP addresses to analyse trends, administer the site, track user’s movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information. Additionally, for systems administration, detecting usage patterns and troubleshooting purposes, our web servers automatically log standard access information including browser type, access times/open mail, URL requested, and referral URL. This information is not shared with third parties and is used only within this Company on a need-to-know basis. Any individually identifiable information related to this data will never be used in any way different to that stated above without your explicit permission.
Cookies
Like most interactive websites, this Company’s websiteuses cookies to enable us to retrieve user details for each visit. Cookies are used in some areas of our site to enable the functionality of this area and ease of use for those people visiting. Some of our affiliate partners may also use cookies.
Links others website
Our Service may contain links to third-party web sites or services that are not owned or controlled byBIOKINEMETRICS.
BIOKINEMETRICShas no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party web sites or services. The opinions expressed or material appearing on these websites are not necessarily shared or endorsed by us and should not be considered as the publisher of such opinions or material. Please note that we are not responsible for the privacy practices or content of these sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these sites.
You should evaluate the security and reliability of any other site linked to or accessed through this site before disclosing any personal information to them. This company will not accept any liability for any loss or damage, in any manner whatsoever, regardless of the cause, resulting from your disclosure of personal information to third parties.
You further acknowledge and agree that BIOKINEMETRICSshall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
Links to this website
You may not create a link to a page on this website without our prior written consent. If you link to any page on this website, you do so at your own risk and the exclusions and limitations set out above apply to your use of this website.
Copyright Notice
Copyright and other relevant intellectual property rights exist on all text relating to the Company’s services and the full content of this website. This Company’s logo is a registered trademark of this Company in the United States and other countries. The brand names and specific services of this Company featured on this web site are trade marked
Force Majeure
BIOKINEMETRICSshall be liable for any failure to perform any obligation under any Agreement which is due to an event beyond our control including but not limited to any Act of God, terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen.
Waiver
Failure of either Party to insist upon strict performance of any provision of this or any Agreement or the failure of either Party to exercise any right or remedy to which it, he or they are entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this or any Agreement. No waiver of any of the provisions of this or any Agreement shall be effective unless it is expressly stated to be such and signed by both Parties.
About these Terms
We reserve the right to modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. If a revision is material, we will try to provide at least 10 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than 2 days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately.
If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.
These terms control the relationship between BIOKINEMETRICSand you. They do not create any third-party beneficiary rights.
If you do not comply with these terms, and we don’t act right away, this doesn’t mean that we are giving up any rights that we may have (such as taking action in the future).
If it turns out that a particular term is not enforceable, this will not affect any other terms.
Contact Us
If you have any questions about these Terms, please contact us at [email protected].
BIOKINEMETRICS™ SOFTWARE AND APPLICATION RESTRICTED-USE LICENSE AGREEMENT
This Agreement governs your relationship with and obligations to BIOKINEMETRICS in connection with the Biokinemetrics™ Software and any hardware provided by BIOKINEMETRICS. You should carefully read this Agreement before signing the Election Agreement and before accepting the following terms and conditions by clicking “Accept” on your computer and installing and using the Software.
1. DEFINITIONS. In addition to other terms that are defined throughout this Agreement, the following terms have the meaning set forth below:
a) “Administrator Email and Password” means a unique password and/or other login information assigned by BIOKINEMETRICS to the Primary Provider, which enables the Primary Provider to install and administer the Software at a Clinic Site.
b) “Agreement” means this Biokinemetrics™ Software and Application Restricted-Use License Agreement between you and BIOKINEMETRICS.
c) “Application” means any add-on application (i.e., Software) available for use in connection with the Biokinemetrics™ base software.
d) “BIOKINEMETRICS” or “ChiroSight™” or “VetSight™” means Biokinemetrics and its agents, successors and assigns.
e) “Clinic Site” means the Primary Clinic Site and, if applicable, any other authorized location for which you purchase an Application entitling you to install and use the Software at such location.
f) “Data Services” means monthly managed data storage, access to the software, backup, and recovery services for data input into the Software, for which you must pay Fees to BIOKINEMETRICS, as well as selected support and training options.
g) “De-Identified Data” means protected health information that has been de-identified such that it does not identify patients or Providers as provided in Section 11 below.
h) “Documentation” means all written, online, or electronic materials or documentation made available or provided to you by BIOKINEMETRICS regarding the Software.
i) “Effective Date” means the date on which you execute an Election Agreement for the Software and you execute this Agreement by clicking “Accept” where indicated below.
j) “Election Agreement” means the Election Agreement for Biokinemetrics Software License and Monthly Services” executed by you regarding your election to acquire a license for use of the Biokinemetrics Software and your agreement to pay Fees for monthly services in the manner provided therein.
k) “Fees” means the applicable monthly fees for services utilized, if any, and support and training services as identified in the Election Agreement that is applicable to the Provider and defined in this License Agreement.
l) “Provider” means a provider of health care services, including the Primary Provider and any other Providers authorized to use the Software upon the purchase of an Application.
m) “Primary Provider” means the Provider designated in the Election Agreement to use the Biokinemetrics™ Software at the Primary Clinic Site.
n) “Primary Clinic Site” means a single location of the Primary Provider’s health care clinic or business designated in the Election Agreement at which the Software will be installed and used. Any secondary sites require a separate license.
o) “Secondary Site” means any physical address or location other than the Primary Clinic Site. It may also mean a separate business or separate database of the Software at the same location as the Primary Clinic Site.
p) “Software” means BIOKINEMETRICS’s Biokinemetrics™ base software supplied to you by BIOKINEMETRICS pursuant to this Agreement, as that software may be updated, upgraded, or modified by BIOKINEMETRICS in its sole discretion from time to time. “Software” also includes (unless otherwise specified herein) any Applications for the Biokinemetrics™ base software purchased by you from time to time during the term of this Agreement. Software applies to commercially used names by BIOKINEMETRICS including ChiroSight™ and VetSight™.
q) “User” means the individual end-user that may be authorized to use the Software at a Clinic Site upon your purchase of an Application.
r) “User ID” means the unique user identification assigned by BIOKINEMETRICS to the Primary Provider, which enables access and use the Software at a Clinic Site.
s) “You” or “you” means the Primary Provider, whether an individual or an entity, who has executed an Election Agreement and has agreed to the terms of and executed this Agreement by clicking “Accept” where indicated below.
2. SOFTWARE LICENSE. In consideration of payment of the Fees, BIOKINEMETRICS grants a personal, non-exclusive, non- transferable, restricted-use license to install and use one (1) copy of the applicable Biokinemetrics Software by the Primary Provider at the Primary Clinic Site by Users for internal health care practice management and business purposes (the “License”), subject to the terms of this Agreement. This License may be expanded to additional Users, Providers or Clinic Sites upon the purchase of appropriate Applications, as provided in Section 3 below. You acknowledge and agree that use of the Software is governed by this Agreement.
3. APPLICATIONS. Applications having a variety of purposes will be available for purchase for use in connection with the Biokinemetrics™ Software from time to time. If you purchase an Application, the License will include the right to install and use the purchased Application at the Clinic Site(s) by the Provider(s) and User(s) authorized by this License Agreement and the specifications of any Applications purchased by you, solely for use in connection with the Biokinemetrics™ Software, subject to the terms of this Agreement.
You agree that if you desire to increase the number of Providers or Users that may use the Biokinemetrics™ Software or increase the number of Clinic Sites at which the Biokinemetrics™ Software may be installed and used, you must purchase the applicable Application for that purpose. In such case, the scope of this License will be expanded to permit use of the Software by those additional Providers, Users and Clinic Sites covered by the purchased Applications.
You acknowledge and agree neither the License nor this Agreement grant you any right to use any Application unless such Application is purchased by you according to BIOKINEMETRICS’s standard Application purchase procedures in effect from time to time.
4. ADMINISTRATOR Designation; USER ID. Upon your execution of the Election Agreement and this License Agreement, (i) the Primary Provider will be assigned an Administrator Designation, and (ii) the Primary Provider will be assigned a User ID. You will not disclose or make available or permit or cause any other party to disclose or make available, the Administrator Email and Password or any User ID to any person other than the Primary Provider or the User to which that identifier was assigned, respectively. You will treat the Administrator Email and Password and each User ID as confidential information and will adopt and maintain reasonable and appropriate security precautions for the protection of each User ID and the Administrator Email and Password to prevent their disclosure to or use by unauthorized persons. Neither you nor any other person will not acquire any rights in any Administrator Email and Password or User ID, and such Administrator Email and Password and User ID may be revoked or changed at any time in BIOKINEMETRICS’s sole discretion. Except as may be required by law, you will not permit any third party (other than a User or Provider) to have access to or use the Software without BIOKINEMETRICS’s prior written consent, or to cause or permit any User, Provider or third party to install, access or use the Software at any location other than a Clinic Site. In the event a User ID or Administrator Email and Password is disclosed to or used by parties other than the authorized User or Provider to which those identifiers were assigned or at a location other than the Clinic Site which such identifier is authorized to be used, you will immediately be responsible for payment for all Application fees as if those unauthorized users or locations were additional Users, Providers or Clinic Sites (as applicable) authorized through the purchase of appropriate Applications, and BIOKINEMETRICS will be entitled to immediately charge your credit or debit card account for such fees in the manner authorized by you in the Election Agreement.
5. PAYMENT OF FEES. The License is granted to you (provided that you must pay the applicable fees for any Applications purchased or membership or software feature packages or programs), but certain Fees will apply if you utilize any data services in connection with your use of the Software or for special functions and features. You must pay the applicable monthly Fees for the data services (as agreed upon in the ELECTION AGREEMENT FOR BIOKINEMETRICS SOFTWARE LICENSE AND SERVICES AGREEMENT and/or any of its ADDENDUMS) utilized by you, which will be calculated and adjusted each thirty (30) day period to correspond to the highest number of gigabytes of Data Services utilized by you at any time during the preceding thirty (30) day period, as described in the Election Agreement. The Fees will be automatically charged monthly to your credit card or automatically debit your financial institution account in accordance with the terms described and the payment method selected by you in the Election Agreement and/or any additional addendums for specific Biokinemetrics™ programs. The Fees will be based on BIOKINEMETRICS’s fee schedule then in effect, which is subject to change at BIOKINEMETRICS’s sole discretion. In no event will you be entitled to a refund or proration of any Fees or any other amounts paid under this Agreement. Biokinemetrics limited warranties are set forth in sections 14 and 15 below.
6. RESTRICTIONS ON USE. You may not distribute, disclose, outsource, or otherwise make the Software or Documentation available to any other party. Further, you agree not to make available the Software or Documentation by or through any public computer-based information systems, bulletin boards, on-line services, remote dial-in, file server, network, or telecommunication links of any kind. Other than a single copy for backup or archival purposes as allowed by law, you may not copy or duplicate or permit any other person to copy or duplicate all or any part of the Software or Documentation. Any backup copy of the Software must contain all notices which are included on or within the Software and will be held by you pursuant to the terms and conditions of this Agreement, even after termination of this Agreement. You may not alter, modify, or adapt the Software, or create any derivative works from the Software. This Agreement gives you no rights to source code, and you expressly agree not to disassemble, decompile, reverse engineer, reverse compile, reverse assemble, or otherwise translate or convert all or any part of the Software, or attempt to reproduce or recreate the source code of all or any part of the Software or otherwise reduce it to a human- perceivable form. Further, you must not permit any other person to take any of the actions prohibited by this Section 6. You are solely responsible for purchasing, maintaining, and operating the hardware on which the Software is installed and any operating systems for such hardware. Your License does not give you the right to, and you may not, reproduce, sell, lease, sublicense, rent, or otherwise transfer or dispose of all or any portion of the Software. This Agreement and the License are not transferable or assignable by you, whether voluntarily or involuntarily. You represent and warrant to BIOKINEMETRICS that the Software will be used solely for your internal health care practice management and business purposes at the designated Primary Clinic Site, and that you will not use the Software for any purpose that is not expressly authorized by this Agreement.
7. ACCESS TO DATA. The Software allows you the capability to put in place on-site backup of your data. It is your responsibility to properly maintain such on-site backup and BIOKINEMETRICS does not assume any responsibility or liability for such on-site backup. Any data for which you utilize the Data Services in connection with the Software will be stored in a database maintained by Off-Site HIPAA compliant Web Services and/or by one or more third party cloud technology providers selected in BIOKINEMETRICS’s sole discretion. Such back-up is not intended to allow access for revisions or data review and instead is only to be available for restoring your on-site back-up in the event your on-site storage fails or is destroyed. Access to or use of that data or the Data Services will be subject to any operational constraints, restrictions, interruptions, and requirements of such third-party cloud technology provider that are now in effect or that may be in effect in the future. BIOKINEMETRICS will not be liable in any way for your failure to have access to or use of that data or any loss or corruption of that data, or the failure of the cloud technology provider or any phase or portion of the World Wide Web or Internet to provide access to or enable use of that data or the Data Services. BIOKINEMETRICS will access the data on the cloud storage associated under HIPAA agreement.
8. SOFTWARE SERVICES/TRAINING AND SUPPORT PACKAGES. Software support services and Web-based Software training will be available to you during the Term if your monthly service fee is paid in full and current. You may arrange for such training or request support by accessing BIOKINEMETRICS’s The Learning Center (TLC) website that is accessed from a link inside the software product. BIOKINEMETRICS reserves the right to decline or discontinue Software support or training services at any time and for any reason, and BIOKINEMETRICS makes no representations or warranties regarding the Software support or training services. Pricing may change at the sole discretion of BIOKINEMTRICS. The software support packages are SOLD at the sole discretion of BIOKINEMTRICS. There is no secondary site location license allowed under the same license. Any additional site shall require a separate agreement and license.
9. TERM AND TERMINATION. The term of this Agreement and the License will commence on the Effective Date and will continue and automatically renew for the term provided in your Election Agreement (the “Term”). Notwithstanding, BIOKINEMETRICS may immediately terminate this Agreement upon your breach of or default under any term of this Agreement, the Election Agreement, or the Business Associate Agreement by providing written (email) notice to you. BIOKINEMETRICS may also immediately terminate this Agreement upon written notice in the event of your death, dissolution or other termination of existence, insolvency, or the commencement (whether voluntary or involuntary) of any bankruptcy, receivership, assignment, or similar proceeding by or against you. Upon termination, you will be obligated to pay for, and your credit or debit card account may be charged in the payment method selected in the Election Agreement for, any Fees incurred by you during the last thirty (30) or less days of the Term, but which were not paid prior to termination. The termination of the Agreement will not relieve a party of any liability for any breach or default of this Agreement, or limit or affect in any way any other rights, interests, or protections that the other party may have under this Agreement or at law or in equity.
10. COMPLIANCE BY USERS. You are responsible and will be liable for assuring full compliance with this Agreement by your employees and agents, including, without limitation, the Primary Provider and User to which this License applies and any additional Providers (and their employees and agents) or Users of the Software which may be authorized by Applications purchased by you from time to time during the Term.
11. HIPAA. You are required to execute a Business Associate Agreement in the form provided to you by BIOKINEMETRICS for purposes of complying with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) The Business Associate Agreement shall be binding between you and BIOKINEMETRICS only to the extent that BIOKINEMETRICS qualifies as a “business associate,” as that term is defined in 45 C.F.R. § 160.103. The Business Associate Agreement shall not apply to any information that does not constitute “protected health information,” as that term is defined in 45 C.F.R. § 160.103. Your failure to execute the Business Associate Agreement constitutes a breach of this Agreement and is cause for BIOKINEMETRICS to immediately terminate this Agreement and the License.
You understand and agree that BIOKINEMETRICS may, from time to time in its sole discretion and pursuant to 45 C.F.R. § 164.514, de- identify protected health information that it retrieves from the database described in Section 7 to compile reports, statistics, or other records incorporating such de-identified information on an aggregate basis (the “De-Identified Information”). This De-Identified Information will neither identify a Provider or a Provider’s patients; provided, however, upon the prior written agreement of BIOKINEMETRICS and a Provider, the Provider may elect for such information to only be de-identified with respect to patient information, but not Provider information. BIOKINEMETRICS may sell, distribute, or otherwise use and disclose such reports, statistics or other records based on such De-Identified Information to third parties in BIOKINEMETRICS’s sole discretion without restriction. You agree not to hold BIOKINEMETRICS liable for such sale, disclosure, or distribution of those reports, statistics, or records or the use by third parties of such reports, statistics, or records.
12. OWNERSHIP; WORK PRODUCT. The Software and the Documentation may contain patented and/or copyrighted material, trade secrets, artist graphics, and/or other confidential or proprietary information and materials of BIOKINEMETRICS or its suppliers or licensors. The Software and the Documentation is protected by some or all the following: United States patent and copyright laws and international treaty provisions and other federal, state, and other laws protecting the trade secrets or confidential or proprietary information and materials of BIOKINEMETRICS and its suppliers and licensors; and you agree to fully comply with all of those laws. BIOKINEMETRICS and its suppliers and licensors reserve all patent, copyright, trade secret, trademark, service mark, and all other confidential, proprietary, intellectual, and other rights in and to the Software and the Documentation, and all rights and interests in and to the Software and the Documentation will always remain BIOKINEMETRICS’s or its suppliers’ or licensors’ sole and exclusive property. You must not obscure, remove, or otherwise alter any notice of BIOKINEMETRICS’s or any of its suppliers’ or licensors’ ownership or other rights, including, without limitation, patent, or copyright notices, from any part of the Software or Documentation or any output derived from the Software.
Any, ideas, discoveries, inventions, patents, products, copyrightable works, or other information (collectively, “Work Product”) developed in whole or in part by BIOKINEMETRICS in connection with providing the Software and any related services under this Agreement will be, and will remain, the exclusive property of BIOKINEMETRICS. Upon request, Primary Provider will execute (and will cause any other Provider or User designated by BIOKINEMETRICS to execute) all documents necessary to confirm or perfect BIOKINEMETRICS’s exclusive ownership of such Work Product.
Any patient or other health-related data input into or generated or compiled through the use of the Software and stored in the database described in Section 7 will be owned by you. Notwithstanding the foregoing, BIOKINEMETRICS will own all right, title and interest in and to, and you hereby transfer and assign all of your right, title, and interest in and to, all De-Identified Information that BIOKINEMETRICS makes or aggregates from any such patient or health-related data, as provided in Section 11 above.
13. INDEMNIFICATION. You agree to indemnify and hold BIOKINEMETRICS harmless from and against all claims, losses, demands, liabilities, expenses, fees, and damages, including attorneys’ fees and court costs, arising from, or relating to your breach, default, or failure to comply with any provision of this Agreement, the Election Agreement, or the Business Associate Agreement. The parties’ obligations under this Section 13 will survive the termination of this Agreement and the parties’ relationship as described herein.
14. LIMITED WARRANTY. (i) Software. BIOKINEMETRICS warrants that the Software in the form installed and downloaded over the web will perform substantially in accordance with the descriptions and specifications of the Software set forth in the Documentation for a period of ninety (90) days from the date of installation of the Software, provided that it is used only on the computer hardware for which it is designed, and it is installed, maintained, and used in accordance with the Documentation. This warranty is void if the failure of the Software to substantially perform as warranted in this Section 14 has resulted from your negligence or breach of this Agreement or from accident, abuse, misapplication, modification, or alteration in any way by any person other than BIOKINEMETRICS, or any factors or occurrences beyond the reasonable control of BIOKINEMETRICS. BIOKINEMETRICS does not warrant that the Software will be error-free or free from interruptions or other failures or that the Software will meet your requirements. BIOKINEMETRICS does not represent or warrant that use of and access to any data stored in the database described in Section 7 will be uninterrupted or that such data will be free from defects, errors, or loss. BIOKINEMETRICS does not make any representations or warranties regarding any of the following: (a) the computer hardware on which the Software is installed or used, (b) any updates, upgrades, or modifications to the Software which may be provided to you, (c) Data Services, (d) use of Software on hardware not designed for or compatible with the Software; or (e) the Documentation.
(ii) Hardware. No hardware except the BIOK4600 or BIOK7600 sensor (“Sensor”) installed by BIOKINEMETRICS is warranted by BIOKINEMETRICS, regardless of whether such other hardware was sold, installed, or paid for by BIOKINEMETRICS. For example, if you purchase a computer workstation or a Summit x-ray machine from BIOKINEMETRICS upon which the Software is installed, BIOKINEMETRICS does not warrant such computer workstation, monitor, or x-ray tube or generator system and your only warranty is the manufacturer warranty, if any, provided by the manufacturer, subject to any such terms applicable thereto. You agree not to open, disassemble, tamper with, damage or move from its original location of installation, the box or flat panel device in which the Sensor is located. Any such actions shall void all warranty and BIOKINEMETRICS shall be relieved of all liability or obligations with respect to the Sensor or Software.
If the Software or Sensor fails to conform to the above limited warranty during the warranty period and you notify BIOKINEMETRICS in writing of that failure within the warranty period, BIOKINEMETRICS will do one of the following at no additional cost to you, with the choice to be made at BIOKINEMETRICS’s option and in its sole discretion: (a) correct or repair the Software or Sensor, or (b) terminate this Agreement and provide you a copy of your data in the manner provided in Section 7. This is BIOKINEMETRICS’s entire liability and your sole and exclusive remedy for the Software’s failure to conform to the above limited warranty. Any corrected or repaired Software will be warranted as provided in this Section 14 only for the remainder of the original warranty period or for thirty (30) days from the date of correction or repair, whichever is longer.
15. LIMITATION OF WARRANTIES AND LIABILITY. EXCEPT AS PROVIDED IN THE EXPRESS LIMITED WARRANTY MADE IN SECTION 14 OF THIS AGREEMENT, BIOKINEMETRICS MAKES NO WARRANTY OR REPRESENTATION AND THE SOFTWARE, HARDWARE AND SERVICES ARE PROVIDED “AS IS.” ALL WARRANTIES OTHER THAN THE EXPRESS LIMITED WARRANTY MADE IN SECTION 14 OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY BIOKINEMETRICS AND ITS LICENSORS AND SUPPLIERS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
IN NO EVENT WILL BIOKINEMETRICS’S OR ITS SUPPLIERS’ OR ITS LICENSORS’ AGGREGATE LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY CLAIM OR COUNTERCLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT, IF ANY, EXCEED THE AMOUNT OF ANY FEES PAID BY YOU TO BIOKINEMETRICS UNDER THIS AGREEMENT DURING THE TERM.
YOU ACKNOWLEDGE THAT ACCESS TO THE SOFTWARE AND THE DATA SERVICES 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 BIOKINEMETRICS’S CONTROL. BIOKINEMETRICS ASSUMES 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, INTERRUPTIONS, INTERCEPTIONS, 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 SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS.
BIOKINEMETRICS IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES OR EQUIPMENT BY INDIVIDUALS OR ENTITIES USING THE SOFTWARE OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SOFTWARE, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES, INCLUDING BACKUP PROCEDURES. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT, HARDWARE OR SOFTWARE MALFUNCTION, SECURITY VIOLATION, OR THE USE OF THIRD-PARTY SOFTWARE. BIOKINEMETRICS IS NOT RESPONSIBLE FOR THE CONTENT OR ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH YOUR USE OF THE SOFTWARE.
IN NO EVENT WILL BIOKINEMETRICS OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR ANY LOST PROFITS, BUSINESS, OR GOODWILL ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SOFTWARE, WORK STOPPAGE, OR LOSS OF DATA, EVEN IF BIOKINEMETRICS OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
16. EXPORT RESTRICTIONS. You agree that you will not, directly or indirectly, export or transmit the Software to any country, person or entity to which such export or transmission is prohibited or is restricted by any statute, rule, regulation, order or other restriction of the United States or any United States agency, without full compliance with all such statutes, rules, regulations, orders and restrictions, including, if required, obtaining any licenses and consents of the U.S. Department of Commerce or such other governmental entity as may have jurisdiction over such export or transmission.
17. FORCE MAJEURE. If the performance by any party of any obligation is prevented, restricted, or interfered with by causes beyond such party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice thereof, then the obligations of the party invoking this provision will be suspended to the extent reasonably necessary as a result of such event. Force Majeure includes, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, national emergencies, insurrections, riots, and wars.
18. ASSIGNMENT. BIOKINEMETRICS may assign this Agreement at any time, without notice to you. You will not assign this Agreement or the License without the prior written consent of BIOKINEMETRICS, which may be withheld in its sole discretion. Any attempted assignment in violation of this section will be void. This Agreement will inure to the benefit of, and will be enforceable by, a party’s successors and permitted assigns.
19. INTEGRATION. This Agreement, together with the applicable Election Agreement, is the entire agreement between you and BIOKINEMETRICS pertaining to the subject matters of this Agreement and supersedes all written or oral preliminary agreements and all prior or contemporaneous discussions and understandings between you and BIOKINEMETRICS in connection with the subject matters of this Agreement, including, without limitation, any sales literature, brochures or other written or oral descriptive or advertising material. BIOKINEMETRICS objects to any additional or different terms that may be set forth in any documentation provided by you. This Agreement may only be waived or amended by a separate writing signed by both you and BIOKINEMETRICS. The failure of either party to enforce any provision of this Agreement will not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance. To the extent the terms of this Agreement conflict with the Election Agreement, the terms of this Agreement will control.
20. SEVERABILITY. If any term of this Agreement is held to be invalid, illegal, or unenforceable, in whole or in part, the remaining terms of this Agreement will not be affected thereby and will continue to be valid, legal, and enforceable, and if any term of this Agreement is held to be invalid, illegal, or unenforceable as written, but by limiting such term it would become valid, legal, and enforceable, then such term shall be deemed to be written, construed, and enforced as so limited. Without limiting the foregoing, each term of this Agreement which provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is subject to this Section 20.
21. GOVERNING LAW; VENUE. This Agreement will be governed by and construed in accordance with the laws of the State of Iowa, United States of America, but without regard to conflicts of law principles. The parties consent to the exclusive jurisdiction of the courts of the State of Iowa with respect to any dispute arising out of this Agreement and you agree not to challenge the jurisdiction of the Iowa courts over any such disputes. You agree that venue shall be either in the Iowa District Court for Polk County, Iowa or in the United States District Court for the Southern District of Iowa.
22. ARBITRATION. The parties acknowledge and agree that any and all disputes, claims, controversies and disagreements of any kind or nature whatsoever, arising from or relating to this Agreement or the transactions contemplated hereby, including the existence, construction, validity, interpretation, performance, non-performance, enforcement, operation or breach hereof, shall be submitted to binding arbitration in Polk County, Iowa before a single arbitrator selected in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any award or decision rendered by such arbitrator (including any decision as to which party/ies shall pay legal fees and expenses in connection with the arbitration proceedings) shall be final and binding on all parties, and judgment on such award or decision may be entered by any party in the Iowa District Court in Polk County or the highest state court having jurisdiction. The arbitration proceedings shall be governed by and conducted in accordance with Iowa Code Chapter 679A, as amended from time to time, as supplemented by the Commercial Arbitration Rules of the American Arbitration Association, to the extent not inconsistent with Chapter 679A. The provisions of this Agreement shall be a complete bar and defense to any suit, action or proceeding instituted in any federal, state, or local court or before any administrative tribunal with respect to any controversy or dispute which is arbitrable as set forth herein.
23. SALES AND USE TAX. Unless required by law, BIOKINEMETRICS will not charge or otherwise collect from you state sales or use tax on the license or purchase of Software, including any subsequent purchase of an Application, or on the Fees for the Monthly Services Fees for the software as long as the Software is delivered to you electronically. You acknowledge, however, that the state, city, or other jurisdiction in which you reside, if outside of the state of Iowa, may subject the Software license or purchase and payment of the Data Services Fees to state or local sales or use tax. You are solely responsible for determining whether the Software license or purchase and the Data Services Fees subject you to sales or use tax outside the state of Iowa. Furthermore, you are responsible for the payment of such sales or use tax and any filing or related obligations under applicable state and local laws. BIOKINEMETRICS is not responsible or otherwise liable to you for any state or local sales or use tax liability that you may incur due to your transactions with BIOKINEMETRICS. In clicking the “Accept” box below, you acknowledge your understanding of the provisions set forth in this Section 23 and hereby agree not to hold BIOKINEMETRICS liable for any sales or use tax liability arising based on your license or purchase of the Software, your payment of the Data Services Fees, or any other transaction with BIOKINEMETRICS under this Agreement.
24. HEADINGS. The headings in this Agreement are for convenience of reference only and shall not be used to interpret or construe any of the terms of this Agreement. Words and phrases of this Agreement will be construed in the singular or the plural number, and as masculine, feminine, or neuter gender, according to the context.
25. AUTHORITY/VALIDITY. By your execution of this Agreement by clicking “Accept” where indicated below, you warrant and represent to BIOKINEMETRICS that you have the authority to enter into and agree to the terms of this Agreement and to perform your duties and obligations hereunder (or, if you are representative of an entity, you warrant and represent that you have the authority to execute this Agreement on behalf of and bind the entity which you represent to perform its duties and obligations hereunder).
The License is only valid if you agree to the terms of this Agreement by clicking the “Accept” box below. By clicking the “I Accept” button/box below you acknowledge you have read and agree to be bound by all the terms of this Agreement. If you do not agree to the terms of this Agreement, click “Cancel” below and the License will be invalid, and your use of the Software will be denied.
26. Software and Application Restricted-Use License Agreement and the HIPAA-Business Associate Agreement. Your agreement to and execution of the Software and Application Restricted-Use License Agreement and the HIPAA- Business Associate Agreement are conditions to the grant of the License and your ability to install and use the Biokinemetrics™ Software.
Please click the applicable boxes below if you agree to be bound by all the terms and conditions of the Software and Application Restricted-Use License Agreement and the HIPAA-Business Associate Agreement and published Documentation. If you do not agree to be bound by all of these agreements, please click the “Cancel” box below, and your INSTALLATION will be cancelled, and your use of the Software will be denied.
This Restricted License Agreement shall supersede all prior Agreements, warranties, terms, and conditions, between BIOKINEMETRICS and YOU; with both parties do hereby agree that this document shall be in effect as long as the YOU are current on your FEES and within the warranty timeframe elected.
For all Customers: BY CLICKING THE I ACCEPT BUTTON BELOW (“I ACCEPT”) OR SIGNING BELOW YOU ARE REPRESENTING THAT YOU HAVE READ THE ENTIRE RESTRICTED-USE LICENSE AGREEMENT AND AGREE TO BE BOUND BY THESE TERMS AND THAT YOU UNDERSTAND THERE IS NO REFUND OF ANY AMOUNT ALLOWED.
