This END USER LICENSE AGREEMENT (the “EULA” or the “License“) is a legal agreement between you (the “Licensee” or “you“) and PORTABLE MEDICAL TECHNOLOGY LIMITED, a limited company, whose operational place of business is on the 3rd Floor, 41/42 High Street, Killarney, Co. Kerry, Republic of Ireland, Companies Registration Office number 505429 (“the Company“, “Licensor”, “PMT”, “our” or “we“) for your licensed use of and access to www.ONCOpatient.com (the “Website”), the internet based user interface (the “Web Application”) and the multi-platform smartphone and tablet software application (the “Mobile Application”) (together the Website, the Web Application and the Mobile Application are hereafter described as the “Platform”) which is branded as “ONCOpatient” and your access to the patient facing, information and patient support aid provided by PMT and as described on the Website from time to time (the “Services“) in accordance with the terms of this Agreement.
DISCLAIMER: ONCOpatient does not replace the advice of a doctor, medical practitioner or clinician. This Platform and the Content should only be used as a feedback connection or reporting aid or as a patient support. It is not intended to override the professional judgment of a healthcare professional. These statements and this Platform and the Content have not been evaluated by the FDA.
If you are feeling unwell, or experience a change in your symptoms which you perceive to be a worsening, we recommend that you contact your doctor or clinician.
BY REGISTERING FOR, UPLOADING TO, AND/OR DOWNLOADING DATA AND INFORMATION FROM THE PLATFORM AND YOUR SUBSEQUENT CONTINUED USE OF THE PLATFORM AND THE SERVICES, YOU CONSENT TO BE BOUND BY THIS LICENSE. BY TICKING THE BOX ON REGISTRATION, AND AT ANY OTHER TIME ON LOGGING IN TO THE WEBSITE, THE WEB APPLICATION AND/OR THE APPLICATION AND THROUGH YOUR CONTINUED USE OF THE SERVICES AND THE PLATFORM, YOU AGREE TO BE BOUND TO THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT REGISTER FOR THE PLATFORM OR USE ANY OF THE SERVICES. BY TICKING BOX YOU CONFIRM THAT YOU HAVE READ, ACCEPT, AND UNDERSTOOD THE TERMS OF THIS LICENSE AGREEMENT, THAT YOU ALSO CONSENT TO USE ELECTRONIC SIGNATURES AND ACKNOWLEDGE YOUR TICKING OF BOX TO BE AN ELECTRONIC SIGNATURE SUFFICIENT TO BIND YOU TO THE TERMS OF THIS LICENSE AGREEMENT.
1.GRANT AND SCOPE OF LICENSE
1.1 General: The Company provides you with access to the Services through the Platform, for your own personal non-commercial, reporting, and patient support use only.
1.2.1 Content: the Services and the Platform provides information, feedback questionnaires, and tools designed to assist and inform clinicians in the treatment of patients “Content”; and
1.2.2 User Generated Content: the information or content provided by an End User posted to the Platform.
1.3 Medical Device: a device or platform which complies with the Medical Devices Directive of the European Union (Council Directive 93/42/EEC).
1.4 License: PMT hereby grants to you a limited, personal, non-commercial, non- exclusive, non-transferable, temporary, revocable, non-assignable, non-sub-licensable license, and right to access the Platform and the Services though a generally available web browser, mobile device operating system, or through the Web and Mobile Applications in consideration of your strict and continued compliance with the following conditions:
1.4.1 your agreement, as evidenced by your acceptance of this EULA and your continued use of the Platform and the Services, to abide by the terms of this License;
1.4.3 not to use scraping, spidering, crawling, or other technology or software of a malicious nature to access or make available to third parties information or data secured by the Platform, whether such data or information relates to PMT, the Platform, the Services, or Content without the express written consent of PMT.
1.5 Use: Any use of the Platform, its software, and/or Services or any part thereof in a manner contrary to the scope and purpose of this EULA is strictly prohibited and a violation of this Agreement, terminable in accordance with Section 12. ONCOpatient is not intended to replace the advice of a doctor or clinician. This Platform and the Content should only be used as reporting tool and patient support aid. It is not intended to override the professional judgment of a healthcare professional. This Platform and the Content are only available via licensed application marketplaces such as the Apple App Store and Google Play and (where applicable) directly as a web app from www.oncoassist.com. Sourcing this Platform from another source without the consent of PMT is not permitted and a direct breach of the terms of this Agreement.
1.6 Intellectual Property:
1.6.1 “Intellectual Property Right(s)” includes any patent, trade or other mark, registered design, topography right, copyright, database right, or any other right in the nature of any of the foregoing (or application, or right to apply for, any of the foregoing), and trade or business name, invention, discovery, improvement, design, technique, confidential process or information or know how, in each case subsisting anywhere in the world and whether registered, unregistered, or unregisterable, and any license or right of user of any of the foregoing, and the full right to all legal protection relating to the same;
1.6.2 PMT reserves all Intellectual Property Rights in and to the Platform, the Content and the Services and any such Intellectual Property Right shall at all times be and for all purposes remain vested in PMT and/or its licensors, including all copies made of the Website, the Web Application, and the Mobile Application in accordance with Section 10.
- ACCESS TO THE SERVICES
2.1. Your Account: PMT is offering access to and use of the Platform and the Services solely for use by the person or entity in whose name an account is registered and not for the use or benefit of any third party. In particular, no use of the Platform may be made by an individual other than to such individual to whom an account is registered. Information from that account will be made available to the Patient Care Team and/or the Support Group to whom you allow access whether in whole or in part, depending on your preferences and the steps taken by you in relation to controlling your privacy within the Platform. PMT may change, suspend, or discontinue any part of the Platform, the Content, and/or the Services at any time, including the availability of any feature, database, or content.
2.2 Account Limitation: The Company may also impose limits on certain features of the Platform and the Services or restrict your access to parts or all of the Services without notice or liability. For as long as the Company continues to offer the Platform and the Services, we shall provide and seek to update, improve, and expand. Therefore, the Company reserves the right, at its discretion, to modify this EULA at any time by posting a notice on the Web Application or the Mobile Application, or by sending you a notice via e-mail, and you consent to the receipt of such notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Platform and the Services following such notification constitutes your acceptance of the terms and conditions of this EULA as modified. Any new features that materially augment or enhance the Platform and/or the Services currently available, including the release of new tools and resources, shall be subject to this Agreement (as updated). You can review the most current version of the EULA at any time at: www.ONCOpatient.com/eula.
2.3 Account Availability: The Company will use reasonable efforts to ensure that the Platform and the Services are available twenty-four hours a day, seven days a week. However, access to the Platform and Services shall be as they may exist and be available on any given day and the Company has no other obligation, except as expressly stated in this EULA. There will be occasions when the Platform and the Services will be unavailable or interrupted for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by PMT to minimize such disruption where it is within the Company’s reasonable control. YOU AGREE THAT PMT WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE, OR LACK OF AVAILABILITY OF THE PLATFORM, SERVICES, OR OTHER CONTENT. The Company retains the right to create limits on use and storage with respect to the Platform and the Services determined at its sole discretion at any time with or without notice.
2.4 Eligibility: To be eligible to use the Website, the Application, and the Services, you must meet the following criteria and represent and warrant that you:
2.4.1 have been prescribed this Platform and the Services by your Patient Care Team;
2.4.2 are not currently restricted from use of the Website, the Application, and the Services, or not otherwise prohibited from having an ONCOpatient account;
2.4.3 will only maintain one End User Account at any given time (unless explicitly consented to by PMT);
2.4.4 will not violate any rights of PMT, including Intellectual Property Rights such as copyright, patent, design, or trademark rights;
2.4.5 agree to provide at your cost all equipment, software, and internet access necessary to use the Platform and the Services; and/or
2.4.6 understand and agree that use of the Platform and the Services may entail the applicability of certain incidental usage charges (“Incidental Charges”) during the installation and use of the Service. These Incidental Charges may, among others, be levied by your mobile network operator or your internet service provider. You are advised to consult your mobile data or internet data plan to identify the Incidental Charges which may be incurred prior to the installation and operation of these Services.
2.5 Suitability: You certify to PMT that you are legally permitted to use the Platform and the Services, and take full responsibility for the selection and use of the Platform and the Services, notwithstanding having been prescribed to use this Platform by your Patient Care Team. You are the best judge of the suitability of any software for your particular needs and you confirm that you have reviewed the Website, the Application, and the Web Application (as applicable) and are satisfied to proceed to engage with the Platform.
2.6 Prohibition by law: This Agreement is void where prohibited by law, and the right to use the Platform and Services are revoked in such jurisdictions. PMT makes no claim that the Services may be lawfully used or that User Generated Content may be uploaded or downloaded in any jurisdiction save the jurisdiction specified by this EULA. Access to the Content made available via the Platform may not be legally permitted by certain persons or in certain countries. If you use the Services or the Platform from outside the United States of America, you do so at your own risk and you are responsible for compliance with the laws of that jurisdiction. Furthermore, if you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with a detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
3.1 Registration Process:
3.1.2 Registering: When you register, you will be required to generate a unique log-in credential (a password) which relates to your own personal email address. Your password will be subject to certain limitations as regards availability, at the sole discretion of PMT. We reserve the right to forfeiture of your password at any time. The combination of your email address and password permits us to verify you as the permitted and authorized user of the particular End-User Account, as well as providing you and your Patient Care Team and Support Group with access to the secure parts of the Platform and the Services which relate to your Personal Data. Access to the secure aspects of the Platform and the Services is not permitted for any other person or entity using your email and password and you are responsible for preventing such unauthorized use. Certain dedicated and permitted members of your Patient Care Team will have access to such level as you permit them. If you do not provide them with certain levels of access to your information, the Platform will prevent them from accessing your information, which may result in limitations of outcome or a limit to or upon the capacity of such member or members of your Patient Care Team to provide assistance to you. Upon successful completion of the registration process, you will be afforded access to your End-User Account. You will be required to validate your End User Account through a validation process by email.
3.2 Access Denial: Individuals whose access to the Website, the Application or use of the Services has previously been terminated or limited by PMT may not register for another account, nor may you designate another individual to use your account on your behalf. PMT expressly reserves the right not to grant access to anyone they may choose to the Services, the Platform, or to create an End-User Account for any reason.
3.3 Authentication: The Platform relies on email addresses and passwords to know whether the person accessing the Platform and utilising the Services are authorized to do so. If someone accesses the Platform and or the Services using an email address and/or password that you have provided us with, we will rely on that email address and password and will assume that access has been made by you. You are recommended to change your password regularly to prevent unauthorized use. You are solely responsible for any and all access to the Platform, your End-User Account and/or use of the Services by persons using your email address and password. Please notify us immediately if you believe or become aware that your End-User Account is being used without your authorization. Similar or identical processes are implemented in respect of members of your Patient Care Team and/or your Support Group.
3.4: Access Indemnity: You indemnify us and hold us harmless for all damages and losses related to your failure to comply with the provisions of this Section 3, including, without limitation, your failure to secure your End-User Account from third party access.
- AGE AND RESPONSIBILITY
4.1 Age: Any individual making use of the Platform or the Services must be over 18 years of age to register or utilize them.
4.2.1 By using and registering for the Platform and the Services, you understand that you are financially responsible for the applicable costs (if any) of using the services as detailed in this Agreement.
4.2.2 You agree to notify us immediately of any unauthorized use of your log-on information or any other breach of security.
4.2.3 This Platform shall only be used as an electronic health reference, a reporting tool, and aid to decision making. It is not intended to override the professional judgment of a healthcare professional. In the first instance, it is the obligation of the Patient Care Team to populate the End User Account accurately. It is the obligation of the End User to review their electronic health record and the information provided. This Platform must not be considered complete or comprehensive due to possible errors in the database, in data insertion, and the Content. Use of the Platform is solely at the End User’s risk.
- USER UNDERTAKINGS
5.1 Undertaking: Except as expressly set out in this License or as permitted by any local law, you undertake not to:
5.1.1. use the Services for any unlawful or illegal purpose;
5.1.2. act dishonestly or fraudulently by engaging in objectionable conduct, or by posting inappropriate, inaccurate, or objectionable content to or through the Platform;
5.1.3 publish inaccurate information in the designated fields on registration for the Platform or the Service (e.g. do not include a link or an email address in your name field)
5.1.4. make any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Platform, the software, and/or content contained in either or both;
5.1.5. make any translation, adaptation, arrangement, or any other alteration of the permanent aspects of the Platform or any of the software contained in either or both;
5.1.6. make any form of distribution to the public of the content of the Platform, the software, in whole or in part, or of copies thereof;
5.1.7. make any form of distribution to the public of the Content or any other content on the Platform save as in accordance with the terms of this EULA;
5.1.8. remove or alter any copyright, meta-tags, or other proprietary notice from the Platform, the Software and/or the Content;
5.1.9 disseminate, sell, give away, hire, lease, offer or expose for sale, or distribute the content of the Platform, the Content, or another associated data, information, product, or content wholly or partially derived from any of the foregoing;
5.1.10. create an End-User Account for anyone other than a natural person;
5.1.11. harass, abuse, or harm another person, including sending unwelcomed communications to others using the Services;
5.1.12. use or attempt to use another End Users account without authorization from PMT (excluding the Patient Care Team for and on behalf of an End User) or that End User or create a false identity on the Website and/or the Application;
5.1.13. Upload, post, email, transmit, or otherwise make available or initiate any content that:
- a) falsely states, impersonates, or otherwise misrepresents your identity to PMT, including but not limited to the use of a pseudonym;
- b) is unlawful, libellous, abusive, obscene, discriminatory, or otherwise objectionable;
- c) adds to a content field such content that is not intended for such field (i.e. submitting a telephone number in the “Name” or any other field, or including telephone numbers, email addresses, street addresses, or any personally identifiable information for which there is not a field provided by PMT);
- d) includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships.
- e) infringes upon patents, trademarks, trade secrets, copyrights, or other proprietary rights; and/or
- f) includes any unsolicited or unauthorized communication, advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. This prohibition includes but is not limited to (i) using PMT to send messages to people who have not expressly consented to the receipt of such contact through the privacy controls on the system; (ii) sending messages to distribution lists, newsgroup aliases, or group aliases.
5.1.14. imply or state, directly or indirectly, that you are affiliated with or endorsed by PMT unless you have entered into a written agreement with PMT;
5.1.15. reverse engineer, decompile, disassemble, decipher, or otherwise attempt to derive the source code for any underlying intellectual property used in the Platform or to provide the Services, or any part thereof;
5.1.16. use manual or automated software, devices, scripts, robots, other means or processes to access, “scrape,” “crawl,” or “spider” any web pages or other services contained in the Platform;
5.1.17. infringe or use the ONCOpatient brand, logos, and/or trademarks, including, without limitation, using the word “ONCOassist” or “ONCOpatient” in any business name, email, or URL or including PMT’s trademarks and logos except as expressly permitted by PMT;
5.1.18 use bots or other automated methods to access the Platform, add or download contacts, send or redirect messages, or perform other activities through the Platform, unless explicitly permitted by PMT;
5.1.19. Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Platform;
5.1.20. Attempt to or actually access the Platform by any means other than through the interfaces provided by PMT. This prohibition includes accessing or attempting to access PMT using any third-party service, including software-as- a-service platforms that aggregate access to multiple services, including ONCOpatient and proxy services;
5.1.21. Deep-link to the Platform for any purpose, (i.e. including a link to ONCOpatient other than the home page) unless expressly authorized in writing by PMT or for the purpose of authorized promotion;
5.1.22. Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on ONCOpatient’s infrastructure, including, but not limited to, sending unsolicited communications to other Users or PMT personnel, attempting to gain unauthorized access to ONCOpatient, or transmitting or activating computer viruses through or on the Platform.
5.2. Compliance Indemnity: You hereby agree to indemnify and hold PMT and its licensors harmless from and against any liabilities, damages, judgments, costs, and expenses (including reasonable legal fees and indirect and consequential loss) (“Losses”) arising out of your registration for the Website, any downloading, installation, and use of the Platform software, or use of the Services in a manner inconsistent with this EULA.
5.3 Warranty: You represent and warrant that you have the legal right and capacity to enter into this EULA in your jurisdiction.
6 PMT‘S UNDERTAKINGS
6.1 PMT Indemnity: We shall indemnify you against any claim that your use of or access to the Platform or Services infringes the copyright of any third party provided:
6.1.1 such claim relates to the technology and software underlying the Platform and or the Services;
6.1.2 we are immediately notified of any such claim;
6.1.3 you do not make any admission of liability;
6.1.4 we are given immediate and complete control of such claim, including the right to conduct the defence of any claim and to make any settlements as appropriate; and
6.1.5 the claim does not arise because of or related to any of the circumstances set out in Section 5 above.
6.2 Remedies: We shall have the right, at our discretion, to replace, modify or change the software incorporated in the Services to make any such software non-infringing. The maximum aggregate liability of PMT shall be equal to that which is set out in section 9 of this Agreement. This states the entire liability of PMT to you in respect of the infringement of the Intellectual Property Rights of any third parties.
6.3. Disclosure of End User Information:
6.3.1. You acknowledge, consent, and agree that we may access, preserve, and disclose your registration and any other information you provide to us, if required to do so by law or we, in good faith believe that such access, preservation, or disclosure is reasonably necessary in our opinion to:
(a) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders, or other compulsory disclosures;
(b) enforce this Agreement;
(c) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency;
(d) respond to customer service inquiries; or
(e) protect the rights, property, or personal safety of ONCOassist or PMT employees, our users or the public.
6.4 Compliance with the Medical Devices Directive (93/42/EEC): PMT confirms that the Platform is a Medical Device designed and manufactured to comply with the relevant essential requirements set out in the European Union’s Medical Device Directive (93/42/EEC). When used under the conditions and for the purpose intended, PMT will not compromise the clinical condition or the safety of patients, or the safety and the health of users, or where applicable other persons. These statements, and the Platform, have not been evaluated by the United States Food and Drug Administration.
7 THIRD PARTY SITES
7.1 Links: PMT via ONCOpatient, if it includes third party materials and links to third party web sites in its Content (“Third Party Site(s)”) is not responsible for and does not endorse any features, content, advertising, products or other materials on or available from Third Party Sites or applications. If you decide to access Third Party Sites, you do so at your own risk and agree that your use of any Third Party Sites is on an “as-is” basis without any warranty, and your use of any Third Party Site is subject to the terms and conditions contained therein.
- WARRANTY & DISCLAIMER
8.1 ANY INFORMATION OR CONTENT CONTAINED IN THE PLATFORM OR PROVIDED VIA THE SERVICES IS PROVIDED “AS IS” OR “AS AVAILABLE”. While PMT strives to provide you with useful and accurate evidence based information, PMT does not warrant, and expressly disclaims, that the information contained in CONTENT PROVIDED BY this PLATFORM is up-to- date and complete.
8.2 ONCOPATIENT AS A PLATFORM does not replace the advice of a doctor/MEDICAL PRACTITIONER. the care of patients depends on a combination of fundamental scientific principles, evidence based research and sound clinical judgment. ONCOPATIENT is not intended to replace THE clinical judgment OF A MEDICAL PRACTITIONER; it is intended to provide REPORTS, FEEDBACK AND information to assist the MEDICAL PRACTITIONER responsible for treating the patient AND ASSISTING IN THEIR treatment decisions.
8.3 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED WITH THE PLATFORM, THE SERVICES, OR DO NOT AGREE WITH THE TERMS OF THIS EULA, YOU MAY CLOSE YOUR ONCOPATIENT ACCOUNT AND TERMINATE THIS EULA IN ACCORDANCE WITH SECTION 12 (“TERMINATION”) AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. This PLATFORM, AND THE CONTENT PROVIDED BY IT, must not be considered complete or comprehensive due to possible errors in the database.
8.4 pmt IS NOT RESPONSIBLE AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES OR COMMUNICATION (SUCH AS EMAILS, FORUM POSTINGS, OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) UPLOADED TO THE PLATFORM. THE TRANSMISSION OF ANY SUCH MESSAGES OR COMMUNICATION SHALL BE ENTIRELY THE RESPONSIBILITY OF THE MOBILE NETWORK OPERATOR OR BROADBAND INTERNET PROVIDER. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR PERSONAL USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE PLATFORM OR ANY USER MANUALS MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US. FURTHER, IN PROVIDING FEEDBACK VIA THE QUESTIONNAIRES, YOU CONSENT TO NOTICES BEING SENT TO YOUR PATIENT CARE TEAM RESULTING FROM CERTAIN CRITERIA WHICH DETERMINES THE NEED, IN CERTAIN CIRCUMSTANCES, FOR YOUR PATIENT CARE TEAM TO BE NOTIFIED OF YOUR RESPONSES. WE DO NOT GUARANTEE THE DELIVERY OF SUCH MESSAGES WHETHER BY ERROR WITHIN THE PLATFORM, EXTERNAL INFLUENCES PREVENTING SUCH MESSAGES BEING RECEIVED BY YOUR PATIENT CARE TEAM, INCLUDING CONNECTIVITY ISSUES OR YOUR PATIENT CARE TEAM FAILING TO LOG INTO OR INTERACT WITH THE PLATFORM IN THE CORRECT MANNER. YOU ARE BEST PLACED TO DETERMINE WHAT IS NECESSARY IN A PARTICULAR MEDICAL CIRCUMSTANCE AND IF WE RECOMMEND THAT YOU CONNECT WITH OR CONTACT YOUR PATIENT CARE TEAM, IT IS A MATTER FOR YOU TO DECIDE TO DO SO, IN SUCH FASHION AS YOU MAY DECIDE.
8.5 pmT DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS, INCLUDING YOUR PATIENT CARE TEAM; THEREFORE, PMT DISCLAIMS ALL LIABILITY FOR A) IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION AND B) FAILURE IN CARE ARISING FROM LACK OF INTERACTION WITH OR BY THE PATIENT CARE TEAM WITH THE PLATFORM OR C) ERROR OR OMISSION ARISING FROM THE PLATFORM.
8.6 pmt DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN OPERATION. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. PMT DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONALITY. FURTHERMORE, PMT DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE PLATFORM DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
- LIMITATION OF LIABILITY.
9.1 Precedence: This Section prevails over all other provisions of this EULA and sets out the entire liability of PMT in respect of:
9.1.1 the performance, non-performance, purported performance, or delay in performance by PMT of its obligations under this EULA; and
9.1.2 otherwise in relation to this Agreement or the entering into or performance of this EULA.
9.2 Losses not excluded: Nothing in this EULA shall exclude or limit PMT’s liability specifically;
9.2.1 under the torts of fraud, deceit, misrepresentation, and related torts;
9.2.2 for death or personal injury caused by any breach of duty of PMT arising from a foreseeable injury or death pertaining to the Platform, but excluding any medical misadventure or failure of diagnosis or treatment;
9.2.3 any breach of an obligation implied by unfair trade practices statutes or related state or federal consumer protection laws (if any); or
9.2.4 any other liability to the extent that under applicable law it cannot be excluded or limited.
9.3 No Implied Terms: The terms of this EULA are in lieu of all other conditions, warranties, and other terms concerning the supply or purported supply of, or failure to supply or delay in supplying, any services which might but for this Clause have effect between PMT and you or would otherwise be implied or incorporated into this EULA or any collateral contract, whether by statue, common law, or otherwise (including the implied conditions, warranties, or other terms as to satisfactory quality, fitness for purpose, or as to the use of reasonable skill and care), all of which are hereby excluded.
9.4 Non–Contractual Liability: Subject to 9.2, PMT does not accept, and excludes all liability for breach of any obligation or duty to take reasonable care or exercise reasonable skill other than any such obligation or duty arising under this EULA.
9.5 Indirect Loss: Subject to 9.2, PMT shall not be liable in contract, tort, or otherwise howsoever for any of the following losses or damage, (whether or not such damage was foreseen, foreseeable, known, or otherwise):
9.5.1 revenue, actual or anticipated profits, contracts, use of money, anticipated savings, business, opportunity, goodwill, reputation, damage, or corruption of data ; or
9.5.2 any indirect or consequential loss howsoever caused (including, for the avoidance of doubt, whether such loss or damage is of a type specified in 9.5.1).
9.6 Breach of Warranty: For the avoidance of doubt, PMT shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the following circumstances:
9.6.1. any use of the Services by you other than in accordance with the terms of this Agreement or use of the Services for a purpose for which they were not designed;
9.6.2. any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Platform;
9.6.3. any reverse assembly, reverse compilation, reverse engineering, or adaptation of the whole or part of the Platform;
9.6.4. any alteration, modification, adjustment, translation, adaptation, or enhancement made by you to the Website or the Application or any combination, connection, operation or use of the Platform with any other equipment, software or documentation;
9.6.5 any dissemination, sale, hire, lease offer, or exposure for sale or distribution of the Platform;
9.6.6 any item of third party hardware or software, even if forming part of the software or if the Licensor has recommended such third party hardware or software;
9.6.7 any breach by you of your obligations under this Agreement or of the Licensor’s Intellectual Property Rights; or
9.6.8 any act, omission, negligence, fraud, or default of or by you.
9.7 Class Action Waiver: You and PMT specifically waive the right to arbitrate or litigate in court any claim or dispute as a class action, either as a member of a class or as a representative, to the fullest extent permitted under applicable law.
9.8 Jury Trial Waiver: You specifically waive the right to a trial by jury to the fullest extent permitted under applicable law.
- INTELLECTUAL PROPERTY RIGHTS
10.1 Vesting: You acknowledge that all Intellectual Property Rights, title and interest in the Platform and the Services contained therein, throughout the world belong to PMT, that rights in the these are licensed (not sold) to you, and that you have no rights in, or to, the Platform and the Services other than the right to use them in accordance with the terms of this EULA.
10.2 Contributions: PMT via the Platform provides a feedback facility and engages in surveys from time to time. Please note that PMT develop or are developing similar ideas independently of any content, information, ideas, suggestions, or other materials which you may supply. Any ideas, suggestions, documents, improvements, comments, proposals, or feedback in relation to the operation of the Platform and or the Services (“Feedback”) in whatever manner or form facilitated by the Platform; any such communication with PMT whether verbally, via postings on blogs, forums, questionnaires, email, and the like (“Communication”), you acknowledge and agree that such Feedback and or Communication (together “Contributions”):
10.2.1. do not contain confidential or proprietary information;
10.2.2. do not create any express or implied obligation of confidentiality in respect of PMT;
10.2.3. PMT is free to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide;
10.2.4. does not preclude PMT from having something similar to the Contributions already under consideration or in development;
10.2.5. that you irrevocably waive and assign all right, title, and interest in and to the Contributions to PMT;
10.2.6. does not entitle you to any compensation, royalty, or reimbursement of any kind from ONCOassist or PMT under any circumstances; and
10.2.7 you further agree to provide PMT with such assistance as may be required in documenting, perfecting and maintaining PMT’s rights in and to any such Contributions.
- INTEGRITY OF DATA
11.1 Not Bespoke: You acknowledge that the Platform, the Services, and the software have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Platform and the Services as described on the Website meet your requirements.
11.2 Minor Errors: You acknowledge that the Platform and the Services may not be free of bugs or errors and you agree that the existence of any errors shall not constitute a breach of this License.
11.3 Insurance: You agree that you are the best judge of the value and importance of the data held on your End-User Account and that you will be solely responsible for taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.
12.1 Duration: This License is effective either until deactivated by you by emailing us at email@example.com.
12.2 Immediate Termination: PMT may terminate this License immediately if:
12.2.1 you commit a material or persistent breach of this License which you fail to remedy (if remediable) within 14 days after the service on you of notice requiring you to do so;
12.2.2 you file a petition for bankruptcy;
12.2.4 for just cause at the sole discretion of PMT to include, but not limited to the abuse of any fair usage policy or for the breach of any matter outlined under Section 5.1 above.
12.4 Upon termination for any reason:
12.4.1 all rights granted to you under this License shall cease;
12.4.2 you must cease all activities authorized by this License;
12.4.3 you must immediately pay to the Licensor any sums due to the Licensor under this License if applicable; and
12.4.4 All data stored and retained in the System will be deleted within a reasonable period.
14.1 Service messages: For the purposes of service messages and notices about the Services to you, PMT may place a banner notice across the Platform to alert you to certain changes such as modifications to this EULA. Alternatively, notice may consist of an email from PMT to an email address associated with your account, even if we have other contact information, or via a digital distribution platform for mobile applications, applicable to your particular device.
14.2: General Communication: You also agree that PMT may communicate with you through your account or through other means including email, mobile, and telephone about your account or services associated with ONCOpatient. Please review your settings to control what kind of messages you receive from us. To unsubscribe from any communication we circulate to you, please click on the unsubscribe mechanism at the bottom of the communication. You acknowledge and agree that we shall have no liability associated with or arising from your failure to do so, to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Platform and Services.
14.3 Contacting ONCOpatient/PMT: In addition PMT may be contacted via mail at: 3rd Floor, 41/42 High Street, Killarney, Co. Kerry, Ireland and feedback@ONCOpatient.com
15 AMENDMENTS TO THE LICENSE
15.1 Amendments: PMT reserves the right, at our sole discretion, to amend, add, or delete any of the terms and conditions of this License. PMT will post notifications of any such changes to this License on the Website or in the Application, will provide a link to the revised version of this License, and may provide such other notice as the Licensor may elect in its sole discretion. If any future changes to this License are unacceptable to you or cause you to no longer be in compliance with this License, you may terminate this License in accordance with the terms herein.
15.2 Evidence of Acceptance: Your installation, download, and/or use of any updated or modified Software (if any) and/or your continued use of the Website, the Application, or the Services following notice of changes to this License as described above means you accept any and all such changes. PMT may change, modify, suspend, or discontinue any aspect of the Website, the Application, and/or the Services at any time.
15.3 Limits: PMT may also impose limits on certain features without notice or liability. You disclaim any right, title, or interest, monetary or otherwise, in any feature or content contained in the Platform and/or the Services.
16.1 Strict Performance: If PMT fails, at any time during the term of this License, to insist on strict performance of any of your obligations under this License, or if PMT fails to exercise any of the rights or remedies to which it is entitled under this License, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
17 CONFIDENTIAL INFORMATION
17.1 Confidential/Non-Confidential Relationship:
18 SEVERABILITY: Severance of Terms: If any of the terms of this License are determined by any competent authority to be invalid, unlawful, or unenforceable to any extent, such term, condition, or provision will to that extent be severed from the remaining terms, conditions, and provisions which will continue to be valid to the fullest extent permitted by law.
19 ENTIRE AGREEMENT: This EULA and any document expressly referred to in it represents the entire agreement between you and PMT, in relation to the license hereunder and supersedes any prior agreement, representation, understanding, or arrangement between us, whether oral or in writing. Both Parties hereunder acknowledge that, in entering into this EULA, neither Party has relied on any representation, undertaking, or promise given by the other or implied from anything said or written in negotiations between us before entering into this License except as expressly stated in this License.
- LAW AND JURISDICTION
20.1 Jurisdiction: This EULA is governed by Irish law. Any dispute arising from, or related to, any term of this EULA shall be subject to the exclusive jurisdiction of the Irish courts.
20.2 LANGUAGE: Any dispute arising from, or related to, any term of this EULA arising between the Parties, shall be resolved or determined based on the English language version alone. These terms were originally written in English. In the event that these terms are translated into any other language, the translation shall be for review purposes only and have no legal effect.
- RELATIONSHIP: Nothing in this Agreement shall create, evidence, or imply any agency, partnership, or joint venture between you and PMT. Neither you nor PMT shall act or describe itself as the agent of the other; nor shall either party represent that it has any authority to make commitments on behalf of the other.