END USER LICENSE AGREEMENT
IMPORTANT -- READ CAREFULLY BEFORE USING BREGSTORE.COM
BY USING BREGSTORE.COM, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
END USER LICENSE AGREEMENT AND THE TERMS HEREIN, AND UNDERSTAND EACH, AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THIS WEB BASED SYSTEM.
1. Limited License Provided by the BregStore.com Web Based System;.
1.1 Limited License. BREG will provide YOU with access to the BregStore.com Web Based System via the internet at a URL as determined (and may be changed from time to time) by BREG in its sole discretion, and BREG grants YOU, during the term of this Agreement pursuant to Section 4 hereof and under the terms and conditions set forth in this Agreement, a limited, non-exclusive, revocable, nonassignable, non-transferable, non-sublicense license to so access and to use the BregStore.com Web Based System solely as a tool designed to allow YOU to purchase products from BREG. YOU may not provide any third party (other than its designated employees as part of their employment for YOU) with access or use of the BregStore.com Web Based System or any part thereof
1.2 Login Information. YOU will receive a login identity or username and password for accessing the BregStore.com Web Based System via the internet at a URL as determined (and may be changed from time to time) by BREG in its sole discretion (collectively, "Login Information"). BREG may require YOU to change the Login Information upon request, in which case YOU shall change the Login Information and all obligations regarding same shall apply immediately to the Login Information as changed. YOU and YOUR employees may only log in to access and use the BregStore.com Web Based System with the Login Information provided to YOU. YOU may not share any of the Login Information with any other person or permit any other person to access, know and/or use any of the Login Information, except solely with those employees that are authorized to access and use the BregStore.com Web Based System under the terms and conditions of this Agreement, provided, however, that each such employee shall be required by YOU to comply fully with the confidentiality and secrecy obligation and use restrictions set forth in this Agreement.
1.3 Maintenance and Support Terms. BREG agrees to provide YOU with reasonable maintenance and support services as necessary to correct any material defect, error or malfunction to the extent arising from any defect or error in the functionality of the BregStore.com Web Based System as residing on BREG's server. BREG shall have no obligation or liability in connection with any interference, lack of access or use, errors, defects or malfunction, including, but not limited to, any interference with the access, use or functionality arising from any connection or connectivity, non- or insufficient compatibility of YOUR hardware, software, connections, systems, methods, methodology, data or processing with the BregStore.com Web Based System or any of its software, data, processing, methods or methodology. BREG shall not be obligated, and nothing in this Agreement or its performance shall cause BREG to be obligated, to provide any services other than the maintenance and support services under the terms of this Section 1.3.
1.4 Modifications to the BregStore.com Web Based System. BREG may at any time, without notice to YOU, update, upgrade, modify, change or add to the BregStore.com Web Based System or any part thereof, and add, delete or change features or parts of the BregStore.com Web Based System, and provide or implement patches, error corrections, or fixes. Any such update, upgrade, modification, change, addition, or deletion may change any of the requirements for YOU to be able to access or use the BregStore.com Web Based System as intended, in which case the provisions in Section
2.2 shall apply to achieve continued compatibility and meet the requirements for access and use of the BregStore.com Web Based System.
2. YOUR Obligations. 2.1 Downtime. YOU acknowledge, accept and agree that access and use of the BregStore.com Web Based System may be subject to interruptions and interferences. BREG may, from time to time, take down or shut down access to the BregStore.com Web Based System, or parts thereof, for testing, maintenance, repair, service or other reasons as BREG may deem necessary ("Downtime"). YOU acknowledge that, during any Downtime, YOU and YOUR employees may not be able to access and use some or all parts of the BregStore.com Web Based System. In no event shall BREG or a licensor or contractor of BREG be liable to YOU, any of YOUR owners or employees, or any third party in connection with any Downtime.
2.2 Equipment and Connectivity. YOU are solely responsible for purchasing, procuring, establishing, installing and maintaining at YOUR sole cost and expense all software (including, without limitation, any and all licenses or other rights necessary for using such software), hardware, mobile computers, communication, internet access and com1ection (whether through telephone, cable, DSL, Tl, ISDN, or any other form or type of access, connection or connectivity), electricity, and any other accessories and prerequisites that are or may be necessary for the access and use of the BregStore.com Web Based System, and neither BREG nor any licensor or contractor of BREG shall be liable for, or obligated to pay or reimburse YOU or any third party for, any costs, charges, fees, taxes, rates, or other payments incurred or made therefor or in connection therewith.
2.3 Data and Information. YOU may, to the extent permitted by the purposes for which the access and use of the BregStore.com Web Based System licensed and provided to YOU hereunder, upload, enter and furnish data and information, including, without limitation, data and information consisting of or containing personally identifiable health, credit and other information and data (the "Data"), and store, as permitted by the BregStore.com Web Based System, Data on a server controlled by BREG. YOU may upload, enter, and furnish any Data solely in accordance with any applicable law, including, without limitation, the Health Insurance Portability and Accountability Act (HIPAA), any regulations issued pursuant thereto, and any other privacy or health-care regulatory law, and to obtain any consent or approval from any individual or entity necessary under any applicable Law for uploading, entering, or furnishing any Data. YOU are solely responsible and liable for ensuring compliance with any applicable law in connection with the uploading, entering and/or furnishing of any Data, and shall defend, indemnify and hold harmless BREG and any affiliate, officer, employee, agent, licensor and contractor of BREG from and against any claim, lawsuit, and other proceeding, and any damages, liabilities, judgement, penalty, cost and expense arising from or in connection with any violation, compliance or non-compliance of such applicable law.
2.4 Limitations. YOU will not, directly or indirectly, (i) assign, sublicense, transfer, pledge, lease, rent, sell or share the BregStore.com Web Based System or permit any person not authorized under this Agreement any access or use thereof; (ii) copy or reproduce any information, work, data or other content of the BregStore.com Web Based System except to the extent necessary as part of of accessing and using the BregStore.com Web Based System as permitted under this Agreement; (iii) cause, undertake or permit any unauthorized access or use, or any interference with, the BregStore.com Web Based System or any part thereof; (iv) access or use the BregStore.com Web Based System for the purpose of or in connection with any violation of any applicable law, or the infringement of any copyright, patent, trademark, trade secret, or other right of any kind; and/or (v) take any action to circumvent, manipulate, change or defeat any download or copy protections, firewalls, virus, spam or similar screening, or security or content usage rules, programs or features in connection with the BregStore.com Web Based System, and/or any access to or use of the BregStore.com Web Based System. Without affecting any of the foregoing prohibitions or other specific prohibitions set forth in this Agreement, in case of doubt, any use not specifically permitted under this Agreement shall be deemed prohibited.
3. Termination. 3.1 Termination by Breg without Cause. This Agreement may be terminated by Breg at any time without notice.
3.2. Compliance with Laws. YOU will at all times comply with all applicable federal and state laws, rules, regulations and guidelines pertaining to the Services, including but not limited to: (a) the disclosure requirements and self-referral prohibitions of the Federal Ethics in Patient Referrals Act, 42 U.S.C. § 1395nn (the "Stark Law") and any applicable state self-referral laws, (b) the federal anti-fraud and abuse statute, 42 U.S.C. § 1320a-7b(b) (the "Anti-Kickback Statute") and any applicable state antikickback laws; and (c) the patient privacy requirements set forth in the Health Insurance Portability and Accountability Act ("HIPAA") and its implementing regulations at 45 C.F.R. Parts 160 and 164 and any applicable state patient privacy laws.
4. Confidential Information; Intellectual Property.
4.1 Nondisclosure. YOU will, during the Term of this Agreement and at all times thereafter, treat as confidential and not disclose, publish or otherwise make available to the public or to any individual, firm or corporation any Confidential Information (as hereinafter defined).
4.2 Confidential Information Defined. For the purposes hereof, the term "Confidential Information" will mean the Login Information and any information provided to or obtained by YOU regarding, and any information containing or pertaining to, the BregStore.com Web Based System; provided, however, that the term "Confidential Information" will not include information that (a) is or becomes generally available to the public other than through YOUR fault or (b) becomes available to YOU on a non-confidential basis from a source other than Breg provided that such source is not bound by a confidentiality agreement with Breg or its subsidiaries or affiliates. YOU agree to use reasonable efforts to safeguard the Confidential Information from unauthorized disclosure and to disclose said Confidential Information to YOUR respective employees or advisors strictly on a "need to know" basis only and only if such employees or advisors are subject to a confidentiality undertaking that is as strict as those set forth in this Section 6. YOU agree to advise any and all such employees and advisors of the confidential nature of the Confidential Information and will take appropriate steps to ensure that any employee or advisor to whom such Confidential Information is disclosed will abide by the provisions of this Agreement and will be responsible for the failure of any of YOUR employees or advisors to abide by the provisions of this Agreement. Except as provided in this Section 6, YOU will not disclose Confidential Information to any third party without the express prior written consent of Breg, including the mere existence of this Agreement and the terms contained herein.
4.3 Required Disclosures. In the event that YOU, or any of YOUR officers or employees, are requested pursuant to, or required by, applicable laws, rules, regulations or legal process to disclose any of the Confidential Information, YOU, or YOUR officer or employee, that is requested to disclose (the "Disclosure Party") will notify Breg promptly so that Breg may seek a protective order or other appropriate remedy (with YOUR help, if necessary) or, in Breg's sole discretion, waive compliance with the terms of this Section 6. In the event that no such protective order or other remedy is obtained, or that Breg waives compliance with the terms of this Section 6, YOU will furnish only that portion of the Confidential Information which it is advised by legal counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be afforded the Confidential Information.
4.4 Intellectual Property. YOU acknowledges and agrees that BREG (or a licensor of BREG, if, as and to the extent applicable) is and remains the owner of all rights, title, and interest in and to the BregStore.com Web Based System, all Login Information, all websites, domain names and URLs thereof or therefor, all software, documentation, content, data, features, processes, layouts, works, technology, designs and intellectual property thereof or therein, any part thereof, any update, modification, derivative work, improvement or technology related thereto, and any and all copyrights, patents, trademark and service mark (including, without limitation, "Breg," "Breg, Inc.," "BregStore.com"), trade secret or other intellectual property rights of any kind therein or thereto (collectively and individually, "Breg Property"). Neither YOU nor any third party shall have or acquire any right, title, interest, ownership, license or use right (other than the limited license during the term of this Agreement set forth in Section 1.1 of this Agreement and, regarding the Login Information, Section 1.2 of this Agreement), entitlement or expectation regarding any Breg Property.
4.5 Equitable Relief. In the event of a breach or threatened breach of any of the provisions of this Section 6, YOU hereby consent and agree that Breg will be entitled to an injunction or similar equitable relief from any court of competent jurisdiction restraining YOU from committing or continuing any such breach or threatened breach or granting specific performance of any act required to be performed by YOU under any of such provisions, without the necessity of showing any actual damage or that money damages would not afford an adequate remedy and without the necessity of posting any bond or other security. Nothing herein will be construed as prohibiting Breg from pursuing any other remedies at law or in equity which it may have.
5. Independent Contractor. This Agreement is intended to create a relationship of independent contractors that are contracting with one another solely for the purpose of carrying out the objectives of this Agreement. Except as specifically set forth herein, neither BREG, nor YOU, nor any of their respective affiliates, agents, employees or representatives, will be construed solely by reason of this Agreement or their participation in any Agreement to be the affiliate, agent, employer, employee, partner, joint venturer or representative of the other party. Neither party is authorized to enter into or execute any contract, order or other commitments on behalf of the other party, and neither party has the authority to otherwise obligate the other party.
6. Warranties; Limitation of Liability.
6.1 Warranties. BREG MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND REPRESENTATIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND WORKMANSHIP, REGARDING THE BREGSTORE.COM WEB BASED SYSTEM, ANY PART THEREOF, ANY SOFTWARE, HARDWARE, CONNECTION, CONNECTIVITY, UPTIME, PROCESSING-SPEED, MAINTENANCE, SUPPORT, ERROR CORRECTION AND OTHER SERVICE OR GOOD OF ANY KIND PROVIDED OR MADE AVAILABLE OR USED IN CONNECTION THEREWITH, AND ANY SPECIFIC SUCCESS OR RESULT OR ACCOMPLISHMENT, AND ANY OTHER PRODUCT, SERVICE, CIRCUMSTANCE AND OTHER THING, FACT OR CIRCUMSTANCE OF ANY KIND.
6.2 Limitation of Liability. BREG WILL NOT BE LIABLE TO YOU (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOUR RIGHTS) FOR ANY DAMAGES OF ANY KIND, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGE) AS A RESULT OF A BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, SHOULD HAVE ANTICIPATED, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. THE PROVISIONS OF THIS SECTION 6.2 ARE INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT. THE LIMITATION OF LIABILITY UNDER THIS SECTION 6.2 SHALL BE INTERPRETED TO BE EFFECTIVE TO THE GREATEST EXTENT PERMISSIBLE UNDER SUCH APPLICABLE LAW OF MANDATORY APPLICATION.
7. Miscellaneous.
7.1 Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of California, without regard to the conflict of laws principles thereof All disputes which arise in connection with, or are related to this Agreement or any breach thereof, shall be resolved, if not settled, by litigation only in San Diego County, California or the Federal Court otherwise having territorial jurisdiction over San Diego County and subject matter jurisdiction over the dispute, and not elsewhere. 7.5 No Third Party Beneficiary. Except as expressly provided in this Agreement, no person or entity that is not a party to this Agreement shall be a third party beneficiary of any rights or obligations hereunder or be entitled to enforce any of said rights or obligations.
7.2 Entire Agreement; Binding Effect. This Agreement contains the entire and final agreement among the Parties with respect to YOUR use of the BregStore.com Web Based System and supersedes all prior agreements, whether written or oral, with respect thereto. No provision hereof may be modified, amended, or waived in any manner whatsoever other than by a supplemental writing signed by the Parties or their respective successors in interest. Any permitted assignment under Section 10.4 of this Agreement shall not constitute an amendment of this Agreement. Subject to Section 10.4 below, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors, assigns, heirs, executors and legal representatives.
7.4 Assignment. Except as otherwise provided herein, YOU may not assign any of YOUR rights or delegate any of YOUR duties under this Agreement without the prior written consent of BREG; provided, however, that BREG may assign its rights and/or delegate its duties to an affiliate of BREG without the prior written consent of YOU. Any unauthorized attempted assignment will be null and void and of no force and effect.
7.5 No Third Party Beneficiary. Except as expressly provided in this Agreement, no person or entity that is not a party to this Agreement shall be a third party beneficiary of any rights or obligations hereunder or be entitled to enforce any of said rights or obligations.
7.6 Waivers. The waiver by a Party of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein. The subsequent acceptance of performance or payment of compensation hereunder by a Party shall not be deemed to be a waiver of any preceding breach by the other Party of any term, covenant or condition of this Agreement regardless of such Party's knowledge of such preceding breach at the time of acceptance of such performance.
7.7 Severable Provisions; Headings. The provisions of this Agreement are severable, and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially unenforceable provision to the extent enforceable, shall nevertheless be binding and enforceable. The headings of paragraphs in this Agreement are for convenience only and shall not affect or limit the interpretation of its provisions.
7.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
