End User License Agreement

909 Healthcare, Inc.

End User License Agreement

PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE USING THE 909 HEALTHCARE APPLICATION (THE “APPLICATION”). BY CLICKING “I ACCEPT” AND USING, DOWNLOADING, ACCESSING, COPYING, OR INSTALLING THE APPLICATION ON ANY OF YOUR DEVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK “I DO NOT ACCEPT” AND DO NOT USE, DOWNLOAD, ACCESS, COPY OR INSTALL THE APPLICATION.

WARNING: IN THE EVENT YOU ACCEPT THIS AGREEMENT IN ERROR, YOU ARE STRICTLY PROHIBITED FROM USING THE APPLICATION. UNAUTHORIZED USE MAY RESULT IN CIVIL AND/OR CRIMINAL LIABILITY. USE OF THE APPLICATION BY YOU OR YOUR AGENT SIGNIFIES YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. License.

The Application is licensed to you by 909 Healthcare, Inc.., a Florida corporation (“909 Healthcare”). 909 Healthcare shall at all times retain all rights title and interest in and to the Application and related documentation. You are hereby granted a limited, nonexclusive, worldwide, revocable, nontransferable license to:

use the Application on a computer, laptop, tablet or smartphone device at any given time for the user for purposes related to the screening of potential COVID-19, influenza, influenza-like illness in accordance with the terms of this Agreement.
utilize the Application to the extent allowable and in compliance with all applicable laws, rules, regulations and policies.

2. Restrictions.

The Application contains copyrighted material, trade secrets and other proprietary material. In order to protect them, and except as expressly permitted by this Agreement and/or applicable laws, without the prior written consent of 909 you may not:

decompile, reverse engineer, disassemble or otherwise reduce the Application to a human-perceivable form;
copy, sell, transfer, assign, sublicense, modify, network, rent, lend, loan, or distribute the Application or create derivative works based upon the Application in whole or in part;
perform services for third parties using the Application;
modify or create derivative works of Application or of any content available on or through the Application; copy or publicly display the Application other than in connection with the use of the Application in your medical practice;
use or enable a third party to use the Application contrary to the terms of this Agreement.

In any country in which any of the restrictions under this section are expressly prohibited or limited by applicable law, such restrictions will not be enforced, solely to the extent required to comply with applicable law. If any of such restrictions are not enforceable due to applicable law, then, to the extent allowed under applicable law: (i) before engaging in the activity that would have otherwise been prohibited by such restrictions (i.e. reverse engineering), you must provide 909 Healthcare advanced written notice of your intent to engage in such activity; (ii) you must not disclose the results of any reverse engineering, decompilation or modification to any third parties; and (iii) you must not create any software that would be substantially similar to the expression of the Application or that would be used in any manner that would be restricted by copyright.

3. Use.

All users may only have one user account. Users must provide 909 with your legal first and last name, your organization’s name (if applicable), your contact phone number, your email address, and the names of the organization, locations and departments where the Application will be used. You shall not impersonate any other person, falsify your profile information, or misrepresent to 909 Healthcare or any other user your true legal identity.

All users are required to use a password to register as a user and login to the Application. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE SECURITY OF YOUR DEVICE AND LOGIN PASSWORD AND FOR PROTECTING THE PRIVACY AND SECURITY OF THE INFORMATION YOU ENTER INTO THE APPLICATION. You may not create a user account on behalf of any other person or entity. You agree to use the Application only for lawful purposes and agree to follow all applicable laws, rules, regulations and policies applicable to your use of the Application, including but not limited to all laws, rules, and regulations relating to the protection and privacy of health information.

You shall not use the Application to:

transmit any content that is: unlawful, abusive, threatening, harmful, obscene, lewd, offensive, defamatory or otherwise objectionable; engage in activity that may disseminate any computer viruses or other malware, programs, files or code designed to interrupt, destroy, gain access to or limit the functionality of any computer software or hardware or telecommunications equipment;
disseminate or transmit any content or other materials through use of the Application that constitutes unsolicited advertising, promotional materials, surveys, spam, junk mail, chain letters, or other unsolicited bulk e-mail or duplicative messages;
sell, offer for sale or advertise any guns, weapons, ammunition, drugs, alcohol, pornography, or any illegal goods or services through use of the Application; or
transmit any information that you do not have proper authority or consent to share with third parties.

The Application allows users to enter information for each survey created in the Application. The user is solely responsible for obtaining any and all necessary consents before entering it into the Application. You represent and warrant that any and all content uploaded to, entered in or provided through the Application does not infringe the rights of any third parties and that all information is accurate, complete and may be relied upon by other users of the Application. You further agree that you have all rights necessary to and do hereby grant to 909 Healthcare a worldwide, perpetual, irrevocable, royalty free, fully paid license to reproduce, distribute, share, perform and display such content to and with users through the Application. 909 Healthcare uses commercially reasonable electronic means to prevent users from viewing and accessing the content of other users. You shall not copy, sell, transmit, modify, make derivatives of, perform, display or redistribute any content that you obtain from use of the Application without prior written consent from the owner of such content. 909 Healthcare has the right in its sole and exclusive discretion to terminate your user account and block your access to the Application if it believes that you have violated any term of this Agreement.

4. Termination.

This Agreement and the license to use the Application granted hereunder is effective until terminated. You may terminate this Agreement at any time by stopping all use of the Application, removing the Application and any applicable software from your device, cancelling your user account and destroying related documentation. This Agreement will terminate immediately without notice from 909 Healthcare if you fail to comply with any provision of this Agreement. Upon termination, 909 Healthcare revokes any and all licenses previously granted to you and may block your access to use the Application, your user account and/or any other services offered by 909 Healthcare. 909 Healthcare reserves the right, in its sole and exclusive discretion, at any time and from time to time to modify any or all of the services available through the Application without liability of any kind. 909 Healthcare further reserves the right to suspend or terminate the Application in whole or in part, at any time in 909 Healthcare’s sole and exclusive discretion.

5. Export Law Assurance.

You agree and certify that neither the Application nor any other technical data received from 909 Healthcare, nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. If the Application has been rightfully obtained by you outside of the United States, you agree that you will not re-export the Application nor any other technical data received from 909 Healthcare, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which you obtained the Application.

6. Disclaimer of Warranty on Software.

You expressly acknowledge and agree that use of the Application is at your sole risk. The Application and related documentation are provided "AS IS" and without warranty of any kind and 909 HEALTHCARE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 909 HEALTHCARE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE APPLICAITON IS ASSUMED BY YOU. FURTHERMORE, 909 HEALTHCARE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU (AND NOT 909 HEALTHCARE OR 909 HEALTHCARE’S AUTHORIZED REPRESENTATIVES) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

7. Limitation of Liability and Disclaimer.

UNDER NO CIRCUMSTANCES INCLUDING NEGLIGENCE, SHALL 909 HEALTHCARE, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF USE OR YOUR MOBILE DEVICE OR COMPUTER, CORRUPTION OR HARM TO YOUR MOBILE DEVICE OR COMPUTER AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE APPLICATION OR RELATED DOCUMENTATION, EVEN IF VENDOR OR VENDOR'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

By using the Application, you hereby acknowledge and agree that 909 Healthcare shall not be liable or responsible for any agreements, transactions or communications between you and other users of the Application.

The contents of the 909healthcare.com (“website”) including but limited to the 909 Healthcare platform, such as text, graphics, images, and other material contained on the website and 909 Healthcare platform (“content”) are for informational purposes; the content should be used in conjunction with professional medical advice, diagnosis or treatment. 909 Healthcare and the Application offers a basic categorization of low back pain which can serve as a guide to understanding. This information is not to be used as the sole basis for ongoing treatment and should be corroborated by consultation with a registered health care provider. In the event of a medical emergency, call a doctor or 911 immediately.

8. Ownership of Intellectual Property.

909 Healthcare, its vendors, contributors, or licensors own or license all rights, title and interest in and to the Application and all related documentation and content, including all intellectual property rights therein, including but not limited to copyrights, trademarks, patents, trade dress and trade secrets.

9. Information Collected and How Used.

By using the Application, you hereby grant to 909 Healthcare, consent to intercept, collect, store, disclose, and share certain information about your use of the Application. 909 Healthcare may collect the following information about your use of the Application: the frequency of your use and the time and date of your use of the Application. 909 Healthcare will not collect any personally identifiable information other than as stated in our Privacy Policy and as necessary for registration and to verify your status as a healthcare provider or non-provider. 909 Healthcare may use the non-personal, non-identifiable information it collects in the aggregate for internal monitoring, messaging and quality control purposes and may share the aggregated information with others, including but not limited to sponsors, researchers and healthcare providers, for commercial purposes. 909 Healthcare may also use your information to target messaging to you that is relevant to you when you are using the Application. Additionally, 909 Healthcare will provide the information it collects to law enforcement or other government agencies if 909 Healthcare receives a summons, search warrant, subpoena, or other court order and the information is needed to protect other persons from injury, serious harm or death, to prevent fraud, or to assist in the investigation of a crime or threat of a serious crime or suspected terrorist activity. 909 may also use your information to send messages to your computer or mobile device about updates, patches, new features or new versions for the Application. For additional information about the information 909 Healthcare collects and how it is used please see 909 Healthcare’s Privacy Policy available at www.909healthcare.com.

10. Indemnification by User.

You agree to indemnify and hold 909 Healthcare and its affiliates, business partners, vendors, licensors, contributors, officers, directors, shareholders, employees, representatives and agents harmless from any loss, liability, claim, demand, damage, or expense (including actual legal fees) asserted by any third party relating in any way to your use of the Application or your breach of this Agreement. 909 Healthcare reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. This indemnity obligation survives the term of this Agreement.

11. Controlling Law; Arbitration; Severability.

This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Florida, as applied to agreements entered into and to be performed entirely within Florida between Florida residents. If for any reason an arbitrator finds any provision of this Agreement or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Any disputes arising from or related to this Agreement shall be submitted to binding arbitration before the American Arbitration Association (“AAA”) located in Orlando, Florida. Any objections to the convenience of the propriety of the forum are hereby specifically waived. The parties shall mutually agree to an arbitrator within ten (10) business days of submission of a claim for arbitration with AAA. If the parties cannot agree to an arbitrator within such time, AAA shall appoint an arbitrator. The initial filing fees shall be paid by the party filing the claim for arbitration. Thereafter, the costs of the arbitration shall be shared equally by the parties, and each party shall be responsible for his or her own attorney fees and costs.

12. Complete Agreement; Assignment.

This Agreement and the Privacy Policy available on 909 Healthcare’s website at www.909healthcare.com constitute the entire agreement between the parties with respect to the use of the Application and the related documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of 909 Healthcare. This Agreement may not be assigned or transferred by you without the prior written consent of 909 Healthcare. 909 Healthcare may assign this Agreement without your consent. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, representatives and permitted assigns.

13. Copyright Violations.

It is the policy of 909 Healthcare to terminate registration of any user who repeatedly infringes the copyrights of others and to expeditiously remove or disable access to the alleged infringing material or content if 909 Healthcare is given proper notice of the infringement or infringing conduct by the copyright owner. If you believe any materials or content available on or through the Application infringe your copyright, you may request removal of those materials from the Application by contacting our designated copyright agent (identified below) and providing the following information:

Identification of the copyrighted work that you believe to be infringed. Please describe the work and where possible include a copy or the location (e.g., URL) of an authorized version.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Your name, address, telephone number and (if available) e-mail address.
A statement that you have a good faith belief that the use of the materials you notify us about is not authorized by the copyright owner, its agent or the law.
A statement that the information that you have supplied is accurate and that "under penalty of perjury" you are the copyright owner or are authorized to act on the copyright owner's behalf.
A signature or the electronic equivalent from the copyright holder or authorized representative.

14. HIPAA Obligations of 909 Healthcare.

This section applies only to the extent that you are a healthcare provider user or other entity that is a “covered entity” (as defined at 45 C.F.R. § 160.103). In supporting and maintaining the Application, there are times where 909 Healthcare will require access to or use of the health information that you enter into the Application (the “Health Information”). As such, 909 Healthcare is considered a “business associate” (as defined at 45 C.F.R. § 160.103) and must comply with certain provisions of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and the implementation regulations promulgated under each (collectively, “HIPAA”). Therefore, in order to fulfill the requirements pursuant to HIPAA, you and 909 agree to the following:

909 Healthcare agrees to not use or disclose the Health Information other than as permitted or required by this Agreement or as required by law. 909 Healthcare may use the Health Information for purposes of providing the Application to you, provided that any such use or disclosure would not violate HIPAA if done by you, and for its own management and administration purposes and to carry out its legal responsibilities. 909 Healthcare may disclose the Health Information for its own proper management and administration, provided that the disclosure is required by law, or 909 Healthcare obtains reasonable assurances from the third party to whom the information is disclosed that such Health Information will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the third party, and the third party notifies 909 Healthcare of any instances of which it is aware in which the confidentiality of the Health Information has been breached.
The Health Information is the minimum amount of health information necessary for the Application to function.
909 Healthcare will implement appropriate technical, administrative, and physical safeguards, adopt policies and procedures, and abide by documentation requirements as required by HIPAA in order to prevent the use or disclosure of the Health Information other than as provided for by this Agreement.
909 Healthcare will mitigate, to the extent practicable, any harmful effect that is known to 909 Healthcare of a use or disclosure of Health Information by 909 in violation of the requirements of this Agreement and HIPAA.
909 Healthcare agrees to report to you any use or disclosure of Health Information not provided for by this Agreement of which it becomes aware without unreasonable delay and in no event later than five (5) business days following discovery of the impermissible use or disclosure. 909 Healthcare agrees to report to you, as soon as practicable following discovery, any attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with the operations of the Application, which involves Health Information (a “Security Incident”). 909 Healthcare hereby notifies you of the ongoing existence and occurrence of trivial attempted but unsuccessful Security Incidents, such as pings or scams, and you agree that no additional notification to you of such events is required.
909 Healthcare will ensure that any agent, including a subcontractor, to whom it provides Health Information, agrees to the same restrictions and conditions that apply through this Agreement to 909 Healthcare with respect to such information.
You and 909 Healthcare acknowledge and agree that 909 Healthcare does not maintain the Health Information in a Designated Record Set (as defined at 45 C.F.R. § 164.501), and therefore, has no obligations related to providing you with access to such information or amending such information.
909 Healthcare will document any disclosures of Health Information it makes that you would be required to include in responding to an individual’s request for an accounting of disclosures. Within ten (10) business days of receiving written notice from you that you received a request for an accounting of disclosures, 909 Healthcare will provide you with all information necessary for you to make the accounting.
909 Healthcare will make its internal practices, books, and records, including policies and procedures, relating to the use and disclosure of Health Information available to the Secretary of the United States Department of Health and Human Services for purposes of determining your compliance with HIPAA.
You may terminate this Agreement immediately if you know of a material breach of 909 Healthcare’s obligations under this section. Upon termination of this Agreement for any reason, 909 Healthcare will return or destroy all Health Information, and in the event that 909 Healthcare determines that it is not feasible to return or destroy the Health Information, 909 Healthcare shall (i) provide you with notice of the conditions that make return or destruction of the Health Information infeasible, and (ii) extend the protections of this section to those purposes that make the return or destruction not feasible, for so long as BA maintains such Health Information.

15. Modification.

We may modify this End User License Agreement from time to time. We will take commercially reasonable efforts to notify registered users of our 909 Healthcare platform when we have modified the End User License Agreement so that you can review the terms. When modifications are made, users will have 30 calendar days from the date of delivery of the notice of change, during which time any user that does not agree with such modifications can request their account to be deactivated and removed by contacting support@909healthcare.com. Modifications to this agreement will go into effect 31 calendar days after the date of delivery of the notice of change.