ZOTEC PARTNERS, LLC
TERMS OF USE
PLEASE READ THESE ZOTEC PARTNERS, LLC (“Zotec”) TERMS OF USE (“Agreement” or “Terms of Use”) CAREFULLY BEFORE SELECTING THE “I accept the terms in the Zotec Partners Terms of Use” OPTION BELOW.
BY SELECTING THE “I Accept” OPTION BELOW, THE PERSON ACCEPTING THIS AGREEMENT (“Licensee”) IS CONFIRMING LICENSEE’S AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF LICENSEE IS REPRESENTING A CORPORATION, LLC, PARTNERSHIP, OR OTHER NON-INDIVIDUAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT ON BEHALF OF THAT ENTITY REPRESENTS AND WARRANTS THAT THEY HAVE ALL NECESSARY AUTHORITY TO BIND THAT ENTITY AND FURTHER AGREE TO PERSONALLY BE BOUND TO OBSERVE THIS AGREEMENT AS A REPRESENTATIVE OF THAT ENTITY. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE “Cancel” OPTION BELOW. IF LICENSEE DOES NOT AGREE TO THESE TERMS OF USE, LICENSEE MAY NOT ACCESS THE SOFTWARE.
BACKGROUND
WHEREAS, Licensee and Zotec have either entered into a services agreement or Licensee is an employee of Zotec or of a non-individual Licensee subject to a services agreement; and
WHEREAS, Licensee desires to access one or more Zotec Partners software and/or web applications (“Software”), which may contain medical, billing, financial, software, development, process, and other information relating to Zotec and/or Zotec clients, including but not limited to patient data, claims, contact information, product, processes, software code, software routines, research, development, concepts, ideas, designs, products under development, prototypes, specifications, test data, proposed pricing, marketing strategies, and the documentation thereof (collectively, the “Data”), and Zotec desires to provide Licensee with access to Software.
NOW, THEREFORE, in consideration of the mutual promises herein contained, the contractual or employment relationship of the parties, and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto covenant and agree as follows:
1. License Grant and Termination
Subject to the terms and conditions of this Agreement, Zotec hereby grants to Licensee a limited, non-transferable, non-exclusive and revocable license to access and use Software, in accordance with this Agreement, as made available to Licensee by Zotec. This Agreement shall terminate immediately and automatically upon the termination of the applicable services agreement or employment relationship. Zotec may also terminate this Agreement at any time upon ten (10) days notice to Licensee, which notice may be given by written notice or posting notice of unavailability of Software on the Software web application.
Zotec reserves the right to amend or discontinue Software and any service or material Zotec provides in Software at its sole discretion at any time without notice. Zotec shall not be liable to Licensee if for any reason all or any part of Software is unavailable at any time or for any period or discontinued. From time to time, Zotec may restrict access to some or all parts of Software to users, including registered users.
2. Ownership and Intellectual Property
This Agreement does not grant to Licensee any ownership interest in Software. Rather, Licensee has a license to access and use Software solely as provided in this Agreement. Licensee hereby agrees and acknowledges that Zotec owns all right, title, and interest in Software and Licensee will not contest those rights or engage in any conduct contrary to those rights. Licensee hereby grants Zotec a royalty-free, worldwide, transferable, sub- licensable, irrevocable, perpetual license to use or incorporate into Software or any of Zotec’s other services any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users and Administrators.
3. Permitted Use and Restrictions
“Authorized User(s)” means any person(s) designated by Licensee to access and use Software solely pursuant to the applicable services agreement or employment agreement and solely subject to the terms of this Agreement and in accordance with all applicable laws. Licensee will designate at least one Authorized User for purposes of administering the access of all Authorized Users to Software (“Administrator(s)”).
Licensee agrees that it is solely responsible for: (i) the request and approval of issuance, activation, security and use of log-on names and passwords associated with Licensee’s and its Authorized Users’ and Administrators’ access of Software (“Log-on Information”); (ii) ensuring that each Authorized User and Administrator will not disclose such Log-on Information to any other person or entity; (iii) ensuring that each Authorized User and Administrator will not permit any other person or entity to use his/her Log-on Information; (iv) ensuring that each Authorized User and Administrator will use Software and/or Data consistent with such Authorized User’s or Administrator’s authorized business responsibilities as established and determined by Licensee; and (v) ensuring that each Authorized User and Administrator will use Software and/or Data in accordance with the terms and conditions of this Agreement.
Licensee agrees that it is solely responsible for the request and approval to immediately deactivate the Log-on Information for any Administrator and any Authorized User that is no longer authorized to access Software (due to termination, change of position, end of assignment or otherwise).
Licensee agrees that it is solely responsible for: (i) advising each Administrator and each Authorized User of his/her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (ii) any and all damages, costs and expenses caused by or in any way arising from any use of any Log-on Information (whether authorized or unauthorized) and any use of Software by Authorized Users, Administrators and anyone accessing Software using Log-on Information issued by or for Licensee. Licensee is further responsible for keeping current with all operating system and security updates as prompted and/or released by any and all devices used to access Software.
Licensee agrees that it will notify Zotec immediately if Licensee believes the security of any Log-on information or the Software web application has been compromised in any way (contact Zotec Partners Privacy Officer at (317) 805-4108 or privacy@zotecpartners.com ).
Licensee expressly agrees that it will not: (i) use Software in manner other than as permitted by this Agreement; (ii) provide access to Software to any third party; (iii) reverse engineer Software or assist another in the same; (iv) interfere, or attempt to interfere, with Software in any way; (v) engage in any fraudulent, illegal or unauthorized use of Software.
Zotec will determine Licensee’s compliance with the terms of this Agreement at its sole discretion and its decision shall be final and binding. Any violation of the terms of this Agreement may result in restrictions on Licensee’s access to and use of all or part of Software and may be referred to law enforcement authorities.
Licensee agrees that Zotec may suspend Licensee’s access to and use of Software as a result of: (i) any untimely payment of any amounts due by Licensee to Zotec under this Agreement, the Primary Agreement or any other agreement entered into by and between Licensee and Zotec; (ii) Licensee’s breach of the terms of this Agreement; (iii) there is a threat or attack on Software or other event that may create a risk to Software, Zotec or any of Zotec’s customers; or (iv) Licensee’s or its Authorized Users’ use of Software disrupts or poses a security risk to Software or any of Zotec’s customers, may harm Zotec’s systems or those systems of any of Zotec’s customers, or may subject Zotec or any third party to liability.
4. Prohibited Uses
Licensee may use Software only for lawful purposes and in accordance with this Agreement. Licensee agrees not to use Software:
· To send, knowingly receive, upload, download, use, or re-use any material which does not comply with this Agreement.
· To transmit, or procure the sending of, any advertising or promotional material.
· To impersonate or attempt to impersonate Zotec, another user, or any other person or entity (including, without limitation, by using e-mail addresses or usernames associated with any of the foregoing).
· To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of Software, or which, as determined by Zotec, may harm Zotec or users of Software or expose Zotec to liability.
Additionally, Licensee agrees not to:
· Use Software in any manner that could disable, overburden, damage, or impair the Software or interfere with any other party's use of Software, including their ability to engage in real-time activities through Software.
· Use any robot, spider, or other automatic device, process, or means to access Software for any purpose, including monitoring or copying any of the material in Software.
· Use any manual process to monitor or copy any of the material in Software or for any other unauthorized purpose without Zotec’s prior written consent.
· Use any device, software, or routine that interferes with the proper working of Software.
· Introduce any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful.
· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of Software, the server(s) on which Software is stored, or any server, computer, or database connected to Software.
· Attack Software via a denial-of-service attack or a distributed denial-of-service attack.
· Otherwise attempt to interfere with the proper working of Software.
5. Confidential Information
Licensee acknowledges the proprietary and confidential nature of the contents, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio and the design, selection and arrangement) of Software and its Data and any and all of Zotec information provided to Licensee through Software, including but not limited to Zotec’s trade secrets, intellectual property and proprietary rights, business and financial information, technical information, processes and the terms of this Agreement (collectively, the “Confidential Information”).
Licensee agrees not to: (i) use Confidential Information for any purpose other than use of Software pursuant to this Agreement, and (ii) disclose Zotec’s Confidential Information to any third party without Zotec’s prior written consent. At a minimum, Licensee agrees to limit access to Zotec’s Confidential Information to those advisors, attorneys, contractors, consultants and employees having a need to know Zotec’s Confidential Information for that party either to exercise its rights or fulfill its obligations, as applicable, under this Agreement or any applicable services agremeent.
These Terms of Use permit Licensee to use Software for Licensee’s professional use only in accordance with the applicable agreements. Licensee must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material in Software, except as follows:
· Licensee’s computer may temporarily store copies of such materials in RAM incidental to Licensee’s accessing and viewing those materials.
· Licensee may store files that are automatically cached by Licensee’s Web browser for display enhancement purposes.
Licensee must not:
· Modify copies of any materials from the Software.
· Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
· Licensee must not access or use for any personal purposes any part of Software or any services or materials available through Software.
If Licensee prints, copies, modifies, downloads or otherwise uses or provides any other person with access to any part of Software in breach of these Terms of Use, Licensee’s right to use Software will cease immediately and Licensee must, at Zotec’s option, return or destroy any copies of the materials Licensee have made. No right, title, or interest in or to Software or any content in Software is transferred to Licensee, and all rights not expressly granted are reserved by Zotec. Any use of Software not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.
To access Software, Licensee will be asked to provide certain registration details or other information. It is a condition of Licensee’s use of Software that all the information Licensee provide is correct, current, and complete.
If Licensee chooses or is provided with a username, password, or any other piece of information as part of Zotec’s security procedures, Licensee must treat such information as confidential, and Licensee must not disclose it to any other person or entity. Licensee also agrees not to provide any other person with access to Software or portions of it using Licensee’s username, password, or other security information. Licensee agrees to notify Zotec immediately of any unauthorized access to or use of Licensee’s username or password or any other breach of security by contacting the Zotec Partners Privacy Officer at (317) 805-4108 or privacy@zotecpartners.com . Licensee also agrees to ensure that Licensee exits from Licensee’s account at the end of each session. Licensee should use particular caution when accessing Licensee’s account from a public or shared computer so that others are not able to view or record Licensee’s password or other personal information. Zotec has the right to disable any username, password or other identifier, whether chosen by Licensee or provided by Zotec, at any time if, in Zotec’s opinion, Licensee has violated any provision of these Terms of Use.
6. Trademarks
The Zotec name, the Zotec logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Zotec or its affiliates or licensors. Licensee must not use such marks without the prior written permission of Zotec. All other names, logos, products and services names, designs, and slogans in Software are the trademarks and/or registered marks of their respective owners.
7. Compliance and Accuracy of Information
Licensee acknowledges and agrees that: (i) any and all information Licensee provides, transmits and/or transfers to Zotec, through Software or by other means, that may reasonably be understood to be used by Zotec in connection with Software will be accurate and will comply with all applicable federal, state, and local laws, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”); and (ii) Licensee is solely responsible for the accuracy of such information and compliance with such laws with regard to the storage, transmittal and provision of such information. Licensee represents and warrants that it has all rights and authorizations necessary to provide, transmit and/or transfer any such data that Licensee provides to Zotec.
8. Monitoring and Enforcement; Termination
Zotec has the right to:
· Remove or refuse to post any messages, content, or other materials (“User Contributions”) for any or no reason in Zotec’s sole discretion.
· Take any action with respect to any User Contribution that Zotec deems necessary or appropriate in Zotec’s sole discretion, including if Zotec believes that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of Software or the public, or could create liability for Zotec.
· Disclose Licensee’s identity or other information about Licensee to any third party who claims that material posted by Licensee violates their rights, including their intellectual property rights or their right to privacy.
· Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of Software.
· Terminate or suspend Licensee’s access to all or part of Software for any violation of these Terms of Use.
Without limiting the foregoing, Zotec has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials in or through Software. LICENSEE WAIVES AND HOLDS HARMLESS ZOTEC AND ITS AFFILIATES, OTHER LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ZOTEC OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER ZOTEC, SUCH PARTIES, OR LAW ENFORCEMENT AUTHORITIES.
However, Zotec cannot review material before it is posted in Software, and Zotec cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, Zotec assumes no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. Zotec has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
· Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
· Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
· Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
· Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use.
· Be likely to deceive any person.
· Promote any illegal activity, or advocate, promote, or assist any unlawful act.
· Impersonate any person or misrepresent Licensee’s identity or affiliation with any person or organization.
· Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter or advertising.
· Give the impression that User Contributions emanate from or are endorsed by Zotec or any other person or entity, if this is not the case.
The information presented in or through Software is made available solely for general information purposes. Zotec does not warrant the accuracy, completeness, or usefulness of this information. Any reliance Licensee place on such information is strictly at Licensee’s own risk. Zotec disclaims all liability and responsibility arising from any reliance placed on such materials by Licensee or any other visitor to Software, or by anyone who may be informed of any of its contents.
If Software contains links to other sites and resources provided by third parties, these links are provided for Licensee’s convenience only. Zotec has no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from Licensee’s use of them. If Licensee decides to access any of the third-party websites linked to Software, Licensee does so entirely at Licensee’s own risk and subject to the terms and conditions of use for such websites.
13. Indemnification
Licensee agrees to indemnify, defend and hold harmless Zotec, its affiliates, and each of their officers, directors, employees, agents, suppliers, licensors, third party partners, successors and assigns from and against all claims, losses, expenses, third party claims, damages and costs, including, without limitation, attorneys’ fees, arising from or relating to: (i) any breach by Licensee of the terms of this Agreement; (ii) any content, data or other information provided by Licensee to Zotec, through Software or by other means, that may reasonably be understood to be used by Zotec in connection with Software, including but not limited to any failure by Licensee to comply with HIPAA and HITECH; (iii) Licensee’s access, use or misuse of Software; (iv) Licensee’s failure to comply with any and all applicable laws, orders, codes and regulations, including, without limitation all privacy laws, in Licensee’s use of Software; and (v) any access to Software using Licensee’s Log-on Information.
14. Warranty Disclaimer and Limitation of Liability
LICENSEE AGREES THAT SOFTWARE, INCLUDING ALL CONTENT AND DATA ON AND SERVICES OFFERED IN CONNECTION WITH SOFTWARD ARE PROVIDED ON AN "AS IS" BASIS WITH NO WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ZOTEC DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES OR OTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ZOTEC DOES NOT REPRESENT OR WARRANT THAT SOFTWARE WILL BE AVAILABLE FOR ANY SPECIFIED TIME OF DAY OR DURATION.
AS A CONDITION OF LICENSEE’S USE OF SOFTWARE, LICENSEE WARRANTS TO ZOTEC THAT LICENSEE WILL NOT USE SOFTWARE FOR ANY PURPOSE THAT IS UNLAWFUL OR PROHIBITED BY THE TERMS OF THIS AGREEMENT, THE PRIMARY AGREEMENT, THE BAA OR ANY OTHER AGREEMENT ENTERED INTO BY AND BETWEEN LICENSEE AND ZOTEC. LICENSEE AGREES THAT IT WILL MAKE NO CLAIM AGAINST ZOTEC FOR LOST DATA, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM ACCESS OR USE OF Software. LICENSEE AGREES THAT ZOTEC WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, WHETHER OR NOT ZOTEC HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, TORT, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH ANY ERRORS OR OMISSIONS, VIRUSES OR OTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, THE USE, INABILITY TO USE, OR PERFORMANCE OF SOFTWARE OR THE DATA, CONTENT OR SERVICES AVAILABLE FROM SOFTWARE OR ANY LOSS, PERSONAL INJURY, PROPERTY DAMAGE, BUSINESS INTERRUPTION OR OTHER DAMAGES IN CONNECTION THEREWITH.
WITHOUT LIMITING THE FOREGOING, ZOTEC’S LIABILITY IN CONNECTION WITH SOFTWARE, DATA, THE SERVICES OR THE TERMS OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE LICENSE TO ACCESS AND USE Software UNDER THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ANY CAUSE OF ACTION OR CLAIM LICENSEE MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR SOFTWARE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
15. Force Majeure
Either party shall be excused from any delay or failure in performance hereunder to the extent caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, third-party labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
16. Miscellaneous
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the terms of this Agreement shall continue in effect. Licensees agree that no joint venture, partnership, employment, or agency relationship exists between Licensee and Zotec as a result of this Agreement or Licensee’s access or use of Software. Zotec’s performance of the terms of this Agreement is subject to existing laws and legal process, and nothing contained in these terms is in derogation of Zotec’s right to comply with law enforcement requests or requirements relating to Licensee’s access and use of Software or information provided to or gathered by Zotec with respect to Software. A printed version of this Agreement and of any notice relating thereto given in electronic form shall be admissible in judicial, arbitration or administrative proceedings based upon or relating to the terms of this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Indiana, without regard to conflict of law principles. In any litigation or arbitration related to this Agreement, the prevailing party will be entitled to recover (from the other party) the prevailing party’s reasonable attorney's fees, court costs, and expert witness fees. Without limiting the foregoing, any provision that by its nature is intended to survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement, including but not limited to the confidentiality provisions in Section 4, the indemnification obligations in Section 6 and the disclaimer of warranties and limitation of liability in Section 7.
Effective Date: September 30, 2021