By using the System in any way, you, the Client, agree to be bound by these terms and conditions. If you do not agree to these terms and conditions, do not use the System and exit now.
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Restrictions on Use.
The Client may not lease, sublicense, distribute, transfer, copy, modify, store or time-share the System. The Client will take all reasonable steps to protect the System from unauthorized access, copying or use. Company reserves all rights not expressly granted to the Client in this Agreement. Company is the sole owner of the System as against the Client, including all associated intellectual property rights.
The Client is authorized to access and use data on the System solely for clinical and educational purposes in the radiotherapy industry, and for no other purpose. Violation of this policy may result in infringement of intellectual property and contractual rights of Company or third parties which is prohibited by law and could result in substantial civil and criminal penalties. Company reserves the right to deactivate or suspend the Client’s use of the System if Company reasonably suspects the Client’s use to involve or facilitate illegal, abusive or unethical activities.
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HIPPA Compliance.
All data uploaded to the System will be publicly accessible to other users of the System. Company, on request, will provide to the Client an upload tool, called the “EduCase Uploader,” which will remove individual patient identifiers from the Client’s DICOM files as they are uploaded into the System. The Client may only upload data into the System using the EduCase Uploader, and may not upload any data into the System by any other means whatsoever.
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Security.
The Client will assume sole responsibility for the security of passwords issued to the Client for the use of the System. Passwords are subject to cancellation or suspension by Company at any time, including upon nonuse for such period as Company may determine. If the Client believes that a password is being used by someone other than the Client’s authorized personnel, the Client must notify Company immediately.
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Data.
Company will be the sole owner of all data that the Client enters into the System. Company may use the Client’s data in the operation of Company’s business, including to copy, distribute, transmit, sell, publicly display, publicly perform, reproduce, edit, modify, translate and reformat the Client’s data. Company may not, however, use any of the Client’s individual patient identifiers in violation of The Health Insurance Portability and Accountability Act (“HIPPA”). The Client will only be permitted to view data on the System, and will not be permitted to download its or any other data from the System. Company will have no obligation to return the Client’s data, to permit the Client to download data from the System, to segregate the Client’s data on the System, to refuse viewing to other persons of the Client’s data on the System, or to delete any of the Client’s data from the System.
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Client’s Responsibilities.
Client is responsible for (i) determining whether the System will achieve the results Client desires; (ii) installing, operating and maintaining proper computer systems (including the environment for the computer systems) for the access and use of the System, including internet connections; (iii) selecting personnel qualified to access and use the System; (iv) adopting reasonable measures to limit the Client’s exposure concerning the use of the System, including examination and confirmation of data prior to input into the System, examination and confirmation of data viewed on the System, provision for identification and correction of errors and omissions, preparation and storage of backup data, replacement of lost or damaged data or media, and reconstruction of data; (v) compliance with all local, state, and federal laws pertaining to the use and disclosure of any data or other materials; (vi) ensuring that it has the right to upload its data into the System and that such data may be accessed or used by other users of the System without liability or restriction; and (vii) retaining backup copies of all of its data uploaded into the System.
In addition, the Client specifically acknowledges that the System is a tool intended only to give convenience to the Client. The System might include data provided by Company to assist the Client and to enhance the functionality of the System. The Client understands that it is solely responsible for the entirety of its use of the System, for all of its outputs from the System, for all data and other materials that it uses from the System, for all of its decisions made based on the System, and for all medical care that it may render related to its use of the System. The Client will indemnify and hold Company, its owners, officers, employees, and directors harmless from and against any loss, claims, demands, expenses (including court costs and attorney fees) or liability of whatever nature or kind arising out of Client’s use or nonuse of the System.
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Warranties.
Data and materials on the System are provided for general reference only and are not warranted to be free of errors, other deficiencies or potential interruptions. The content on the System is provided in large part by the clients and associates of Company, including you as a Client. These persons upload data into the System to be viewed by the other users of the System. Company does not review or scan any of this data. Company gives no validation, assurance or warranty whatsoever regarding any data on the System.
The System and the data in the System are provided as-is. Except as set forth in this Section, Company makes no warranties about the System or its data, or Company’s services, express or implied, including any implied warranty of merchantability or fitness for a particular purpose, or any warranty as to the performance results or the accuracy, completeness or currentness of the System or any data and other materials in the System. In no event will Company be liable for the Client’s use of the System.
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Limitation of Liability.
Company’s liability to the Client hereunder will be limited to the aggregate of all amounts paid by the Client to Company hereunder for the 12 months prior to the date of the applicable claim. Client may not bring any action, regardless of form, in connection with this Agreement more than one year after accrual of such action. In no event will Company be liable to Client for any incidental, indirect or consequential damages or lost profits of Client, including loss of goodwill or reputation (notwithstanding that Company may have been advised of the possibility of such damages). In no event will Company be liable for loss of data or records of the Client, it being understood that the Client will be responsible for assuring adequate back‑up and storage procedures.
Company will not be liable to the Client for any failure or delay caused by events beyond its control, including failure or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor or equipment, or technical failures, Acts of God and the like.
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Entire Agreement; Modification; Waiver.
This Agreement constitutes the entire agreement between the parties pertaining to the matters set forth herein and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by all parties. No waiver of any of the provisions of this Agreement will be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver. Notwithstanding the foregoing, Company may post general notices to all of its clients on the System, which notices will be binding on the Client.
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Governing Law; Jurisdiction.
This Agreement will be governed by and construed under California law without reference to conflicts of law principles. In any legal proceeding involving, directly or indirectly, any matter arising out of or related to this Agreement, the parties each irrevocably submits to the exclusive jurisdiction of any state court located in Santa Clara County, California, or the Federal District Court for the Northern District of California, and agrees not to raise any objection to such jurisdiction or to the laying or maintaining of the venue of any such proceeding.