Your use of dicomfix™ (“The Software”) is subject to the terms and conditions of these Terms Of Service (the “Agreement”) between you (“The Customer”) and DicomSmart Medical Systems Inc. (“DicomSmart”). By using the Software, you agree to be legally bound by the Agreement.
DicomSmart grants to The Customer a non-transferable, non-sub licensable, non-exclusive license during the applicable Subscription Term to use one copy of The Software, but only in accordance with the technical specification documentation generally made available by DicomSmart to its customers with regard to the specific Software and Hardware requirements (“Documentation”).
The Software is licensed on a yearly or monthly subscription basis (“Subscription Term”) as selected by The Customer. The start date of the Subscription Term shall be the date when DicomSmart delivers to Customer the access credentials for their copy of the Software (“The Effective Date”). Unless terminated earlier in accordance with Section 3, each Subscription Term will automatically renew upon expiration of the initial Subscription Term for successive periods equal in length to the Initial Subscription Term unless either party gives the other prior written notice of cancellation at least ten (10) days prior to expiration of the then-current term. The rates for any Subscription Term renewals shall be DicomSmart’s then-current Subscription rates.
Customer shall not (and shall not allow any third party to):
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, DicomSmart has and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.
All payments are non-refundable and shall be made in U.S. dollars. Subscription fees are payable as follows:
All Software and Documentation shall be delivered by electronic means.
For cloud based managed installations uploaded images, reports or other information will be available only during the Subscription Term. DicomSmart shall not be responsible for the storage or return of uploaded data or other uploaded information after the Subscription Term termination date or expiration date if no renewal occurs.
This Agreement is effective as of the Effective Date and expires on the day that the Subscription Terms for all Software licensed hereunder have expired. Either party may terminate this Agreement if the other party:
Sections 1.3 (License Restrictions), 1.4 (Ownership), 2 (Payment and Delivery), 3 (Term of Agreement), 4.3 (Disclaimer),6 (Publicity), 7 (Confidential Information), 8 (Limitation of Remedies and Damages),11 (Compliance with Laws and Regulations), 12 (General), and Customer’s ownership of Customer Content described in Section 5.2 shall survive any termination or expiration of this Agreement.
DicomSmart warrants to Customer that the Software shall operate in substantial conformity with the Documentation. DicomSmart does not warrant that Customer’s use of the Software will be uninterrupted or error-free, will not result in data loss, or that any security mechanisms implemented by the Software will not have inherent limitations. DicomSmart’s sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in DicomSmart’s sole discretion, to use commercially reasonable efforts to provide Customer with an error-correction or work-around which corrects the reported non-conformity. DicomSmart shall have no obligation with respect to a warranty claim unless notified of such claim within the Subscription Term.
The above warranty shall not apply:
THIS SECTION 4 CONTAINS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4 THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER DICOMSMART NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SUBSCRIPTION TERM.
DicomSmart may provide The Customer additional professional consulting services (“Professional Services”). The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of either or both of:
Customer hereby grants DicomSmart a limited right to use any Customer data or other materials provided to DicomSmart in connection with the Professional Services (the “Customer Content”) solely for the purpose of performing the Professional Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Content.
Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by DicomSmart (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of DicomSmart without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Without limiting the foregoing, Customer shall ensure that its Procurement Agent is subject to written confidentiality terms that are no less protective of DicomSmart than the terms of this Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DICOMSMART’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO DICOMSMART UNDER THIS AGREEMENT.
The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
DicomSmart shall defend, indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s use of the Software in accordance with the terms of this Agreement, provided that DicomSmart shall have received from Customer:
If Customer’s use of any of the Software is, or in DicomSmart’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, DicomSmart may, in its sole discretion:
DicomSmart shall provide the support and maintenance services set forth on Exhibit A (“Support and Maintenance”) for each Subscription Term.
The Customer agrees to use the Software in compliance with all applicable laws, state or federal, including local laws, and including the laws of the country or region in which The Customer resides or is registered or in which The Customer uses the Software, if outside of the United States.
DicomSmart may not and shall not be held liable for any illegal acts or omissions of The Customer against any person, including, without limitation, any government agency, office, or entity, whether in violation of the rules and regulations of HIPAA, or any other applicable law, whether state or federal, including the laws of the country or region in which The Customer resides or is registered or in which The Customer uses the Software, if outside of the United States, committed while or in connection with using the software. The Customer agrees to indemnify, hold harmless, and forever defend DicomSmart in any proceeding, state, federal, local, executive, judicial, or otherwise, against DicomSmart resulting from The Customer’s use of the software, whether illegal or otherwise. The Customer agrees to reimburse DicomSmart in full for any costs incurred by DicomSmart while defending any action, executive, legal, or otherwise, resulting from The Customer’s use of the software, including but not limited to court costs and reasonable attorney’s fees. In any event, if any action or adverse judgment results to DicomSmart from The Customer’s installation or use of the software, DicomSmart’s liability, whether to The Customer or to any third party, shall be limited to the price The Customer paid to DicomSmart under any agreement between The Customer and DicomSmart for using the software. No award, fine, or any other remedy or penalty assessed against DicomSmart, whether in favor of end user or any third party, shall be in excess of the amounts or monies end user paid to DicomSmart for a limited right to use the software granted hereunder.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
This Agreement shall be governed by the laws of the State of Florida and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the Florida state and United States federal courts located in Broward County, Florida, United States, and both parties hereby submit to the personal jurisdiction of such courts.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given:
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that DicomSmart offers subscription-based products and that, in order to provide improved customer experience, DicomSmart may make changes to DicomSmart type products (including the dicomfix™ Software) or Documentation. In such event, DicomSmart will update the Documentation accordingly.
Upon DicomSmart’s written request, Customer shall certify in a signed writing that Customer’s use of the Software is in full compliance with the terms of this Agreement (including any copy and user limitations). With prior reasonable notice of at least 10 days, DicomSmart may audit the copies of the Software in use by Customer provided such audit is during regular business hours; Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with the licensed scope of use.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.
Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof:
The Software may contain or be provided with components subject to the terms and conditions of third party “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or DicomSmart shall provide a list of the Open Source Software for a particular version of the Software to Customer upon Customer’s written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
DicomSmart uses third party hosting that strives to ensure maximum uptime (99.9%). DicomSmart reserves the right to interrupt access to any Cloud hosted instance of the Product for the sake of performing maintenance, updates, audits and security requirements with prior notice to the Customer (Planned Maintenance Windows) or for emergency updates (Unplanned Maintenance Window).
This Software Support Policy (“Support Policy”) describes the policies and procedures under which DicomSmart provides support and maintenance services (“Support”) for its proprietary commercial software product dicomfix™ (“Software”).
Support is provided for the Software pursuant to the separate Agreement under which Customer has purchased Support and is subject to the terms and conditions of that separate agreement and the terms of this Support Policy.
Support is only provided during the Subscription Term.
Support is provided through email or live chat with the following response times:
An issue is considered “serious” if it prevents access to the platform outside of a maintenance window. DicomSmart will make all reasonable efforts necessary to keep a response time of 3 hours or less for serious issues reported inside or outside business hours.
DicomSmart will make all reasonable efforts necessary to remedy, provide an error-correction or work-around which corrects the reported non-conformity to any error of the Software presented by the Customer through the established communication channels.
The installation of the Software and the deployment and installation of new releases that could include error-correcting patches is done by DicomSmart through a remote desktop connection to the local components provided at the sole cost and expend of the Customer.
Support also includes the provision of expert level guidance and troubleshooting to Customer in connection with questions and issues arising from the following Customer activities with respect to the Software: Usage Issues: Software experts will answer “how to” questions related to standard and intended product usage. Basic Configuration Issues: Support for configuration includes troubleshooting Customer’s configuration settings for existing installations or referring the Customer to the proper Documentation.
Software that is used on or in conjunction with hardware or software other than as specified in the applicable Documentation.
Altered or modified Software, unless altered or modified by DicomSmart.
Defects in the Software due to accident, hardware malfunction, abuse or improper use.
Training, customization, integration and any issues arising from non-standard usage of the Software.
Data backup services.
The Support Policy covers the Current Release, that is, the latests and most current release of the Software as announced on Software’s website (“Current Release”) and the immediate previous release to the Current Release (“Previous Release”).
Releases are marked by a version number composed of a major, minor and patch number. If no patch for the minor version exists, the patch number is omitted.
Error corrections and patches can only be deployed to installations running the Current Release.
DicomSmart may make changes to the list of Supported Platforms, and Hardware requirements from time to time when making new releases of the Software available.
Customer shall obtain Support by reporting individual issues to DicomSmart. Each individual issue reported to DicomSmart shall be tracked from initial report through final resolution (each such issue, an “Incident”).
Customer is responsible for designating at least one authorized Contact once the subscription period starts.
Customers are expected to make every effort to ensure that the individuals that are designated as authorized contacts are qualified to support the Customer teams internally.
To be qualified, these individuals should know the internal systems, tools, policies, and practices in use by the Customer, and they should also be proficient users of the Software. Each such qualified contact is a “Contact”.
Incidents are to be submitted to DicomSmart by a Contact through the communication channel(s) (email,live chat) specified.
In order to expedite the resolution of Incidents, DicomSmart expects that Customer will make every attempt possible to:
For each Incident reported by Customer in accordance with these procedures, DicomSmart shall:
Incidents shall be closed in the following manner:
For solvable issues, depending on the nature of the issue, the resolution may take the form of an explanation, recommendation, usage instructions, workaround instructions, or advising Customer of an available software fix.
For unsolvable issues, DicomSmart undertakes to provide an explanation why the issue is not solvable, and provide the reporting Customer suggestions for a work-around or other ways to mitigate the issue.
For issues outside of scope of Support, DicomSmart may also close issues by identifying the Incident as outside the scope of the Support or arising from a version, platform or usage case which is excluded from the Support Policy.