This is a legal agreement between you, the user ("Licensee") and OncoTreat, Inc. ("OncoTreat"). OncoTreat owns DxTreat web application software program ("Software"). By using the Software Licensee agrees to be bound by the terms of this License Agreement (the "Agreement").
1) Disclaimer. The information provided in the Software is no substitute for medical advice, diagnosis, or treatment by a healthcare provider based on individual patient assessment, including the healthcare provider's examination of each patient and consideration of laboratory data and other factors unique to the patient. The Software may be accessed and used use (only as expressly permitted hereunder) as a mean to communicate your symptoms to your health care provider and as a reference to enhance your understanding of your healthcare provider's diagnosis and treatment advice, bearing in mind that individual and unique circumstances may lead your healthcare provider to reach decisions not presented in the Software. Also, standards and practices in medicine change constantly as new data become available. Only the most current release of OncoTreat should be consulted when information is sought. Nothing contained in the Software is intended to advocate or recommend the purchase or selection of any product or service.
2) License. OncoTreat grants to Licensee, a nonexclusive, nontransferable right to use the Software on one computer system or mobile device.
3) Copyright. Licensee shall not copy the Software, in whole or in part. Licensee may not copy any part of the documentation, nor modify, adapt, translate into any language, or create derivative works based on the documentation without the prior written consent of OncoTreat. Documenation includes all help messages, images or videos.
4) Ownerhsip. OncoTreat retains all right, title, and interest in the Software and documentation, and reserves all rights not expressly granted to Licensee.
5) Restrictions. This Software is licensed to Licensee who must be a patient suffering from a disease or condition, or a provider treating a patient with a disease or condition who is using Software to transmit his or her info to the provider. The use is only allowed for transmitting patient information to the physician, and for the patient to gain general knowledge about his or her condition. Licensee acknowledges that the scope of the licenses granted hereunder do not permit Licensee (and Licensee shall not allow any third party) to:
6) No Transfer. Licensee shall not sublicense, transfer or assign this Agreement or any of the rights or licenses granted under this Agreement without the prior written consent of OncoTreat.
7) Confidential Information. "Confidential Information" means (i) the Software, in object and source code form, and any related technology, idea, algorithm or information contained therein, and any trade secrets related to any of the foregoing; (ii) documentation, manuals, instructions, information, data, drawings, benchmark tests, and specifications provided to Licensee by OncoTreat in connection with the Software; (iii) either party's product plans, costs, prices and names; non-published financial information; marketing plans; business opportunities; personnel; research; development or know-how; (iv) any information designated by the disclosing party as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and given to the receiving party and designated as confidential in writing within thirty(30) days; (v) the terms and conditions of this Agreement, and any addenda signed by both parties; provided, however that "Confidential Information" will not include information that: (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (b) is known and has been reduced to tangible form by the receiving party at the time of disclosure and is not subject to restriction; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) is lawfully obtained from a third party who has the right to make such disclosure; (e) is released for publication by the disclosing party in writing. Each party will protect the other's Confidential Information from unauthorized dissemination and use with the same degree of care that each such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose, directly or indirectly, to third parties the other's Confidential Information without the prior written consent of the other party.
8) Termination. OncoTreat may terminate this Agreement or any license granted under it, without notice, in the event of breach or default by Licensee. Upon termination, Licensee will relinquish all rights under this Agreement, and must cease using the Software. The provisions of Sections 4 , 7, 8, 10, 12 and 13 shall survive any termination of this Agreement.
9) No Warranty. There is no warranty of any kind. NEITHER ONCOTREAT NOR ANY OTHER PARTY OR MEDICAL SOCIETY MAKES ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE, WHICH ARE LICENSED "AS IS". ALL WARRANTIES ARE EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE. ANY STATEMENTS OR REPRESENTATIONS MADE BY ANY OTHER PERSON OR ENTITY ARE VOID. YOU ASSUME ALL RISK AS TO THE QUALITY, FUNCTION, PERFORMANCE, AND ACCURACY OF THE SOFTWARE. LIMITATION OF LIABILITY. IN NO EVENT WILL ONCOTREAT OR ANY OTHER PARTY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, PROMOTION OR MARKETING OF THE SOFTWARE BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, RELIANCE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA OR PROFITS, OR FOR INABILITY TO USE THE LICENSED MATERIALS, WHETHER SUCH DAMAGES ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY, AND EVEN IF ONCOTREAT OR SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ONOCTREAT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE PROGRAM WILL BE CORRECTED. IN NO EVENT SHALL ONCOTREAT OR SUCH OTHER PARTY'S LIABILITY FOR ANY DAMAGES OR LOSS TO YOU OR ANY OTHER PARTY EXCEED THE LICENSE FEE YOU PAID FOR THE SOFTWARE.
Licensee assumes the entire risk as to the results and performance of the Software. Some states/jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply.You agree that this Agreement shall not be subject to the United Nations Convention on Contracts for the International Sale of Goods.
10) Limitation of Liability. LICENSEE AGREES THAT IN NO EVENT SHALL ONOCTREAT OR ITS AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THESE ONOCTREAT PRODUCTS, EVEN IF ONOCTREAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will OncoTreat be liable to Licensee for damages in an amount greater than the fees paid for the use of the Software. Some states/jurisdictions do not allow the limitation or exclusion of incidental or consequential damages, so the above limitations or exclusions may not apply.
11) Indemnity. In the event that a claim alleging infringement of an intellectual property right arises concerning the Software (including but not limited to patent, trade secret, copyright or trademark rights), OncoTreat in its sole discretion may elect to defend or settle such claim. OncoTreat in the event of such a claim may also in its sole discretion elect to terminate this Agreement and all rights to use the Software, with a refund of the fees paid for use of the Software less a prorated allowance for use thus far.
12) Information You Submit to Us. When you submit any information to us, you give us an irrevocable, perpetual license to use, reproduce, modify, or adapt that information.
13) Miscellaneous. This Agreement is the entire agreement between Licensee and OncoTreat with respect to the license to the Software, and supersedes any previous oral or written communications or documents (including, if you are obtaining an update, any agreement that may have been included with the initial version of the Software). This Agreement is governed by the laws of the State of California, USA. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is found to be invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect. Failure to prosecute a party's rights with respect to a default hereunder will not constitute a waiver of the right to enforce rights with respect to the same or any other breach.