TERMS OF USE FOR ARCADIA SERVICES

End User License Agreement

LAST UPDATED: January 10, 2019

 

TERMS OF USE FOR ARCADIA SERVICES

These terms and conditions apply to all users of Arcadia Services. Arcadia Solutions LLC (“Arcadia”) is in the business of providing data connectivity, integration, reporting, and analytics software and solutions for a variety of healthcare providers and organizations (collectively, the “Arcadia Services”). All access to and use of the Arcadia Services is subject to the terms and conditions in this document (including any other terms, agreements and documents that are linked or referred to below) and in any separate or supplemental terms of use agreement that may be referenced or linked within the Arcadia Services (collectively, the “Terms of Use”). By accessing, viewing or using any part or component of the Arcadia Services, a user (“User”) agrees to be contractually bound by the Terms of Use.

A. LICENSE GRANT

Arcadia grants Users a nonexclusive, personal, nontransferable, revocable, limited license to access and use the Arcadia Services only in accordance with the Terms of Use. Users’ binding obligations under the Terms of Use are in consideration of Arcadia’s grant of license to use the Arcadia Services. The Arcadia Services include all contents, know-how and services produced, distributed or provided by Arcadia in, on or through the Arcadia Services and all software and other technology hosted or used by Arcadia to provide the Arcadia Services (collectively, the “Arcadia Materials”). Arcadia Materials are made available to Users only as part of Arcadia Services that are offered on a paid subscription basis (“Subscription Services”). Unless otherwise specified, the Terms of Use apply to the Subscription Services.

B. PERMITTED USE OF SUBSCRIPTION SERVICES

Access to, and use of, Subscription Services is subject to terms and conditions set forth in a separate Arcadia Subscription and Services Agreement (“Subscription Agreement”) between Arcadia and a User’s employer, an affiliate of the User’s employer, or another related entity (a “Subscriber”) in addition to the Terms of Use. A Subscriber may authorize certain of its employees and other related personnel (“Authorized Users”) to use the Subscription Services covered by the Subscription Agreement (“Subscribed Services”). Authorized Users are permitted to use the applicable Subscribed Services, solely in connection with the Subscriber’s business purposes. In addition to each Authorized User’s personal obligation to comply with the Terms of Use, the Subscriber is responsible under the Subscription Agreement for strict compliance by all of its Authorized Users.

C. LICENSE RESTRICTIONS

Users shall not access or use the Arcadia Services or Arcadia Materials except to the extent expressly permitted by these Terms of Use, or as otherwise expressly permitted in writing by Arcadia.

D. ACCESS RESTRICTIONS

Users shall not access or attempt to access any Arcadia Materials other than through Subscribed Services for which they are authorized, or otherwise circumvent or attempt to circumvent any access restrictions or controls through hacking or other means. Authorized Users shall not disclose their assigned user name or password to anyone. Without limitation to any other available contractual, legal or equitable remedies, Arcadia reserves the right to revoke, suspend or terminate, without notice, any User’s access to one or more (or all) of the Arcadia Services upon any violation or suspected violation of the Terms of Use.

E. PROPRIETARY RIGHTS

Arcadia and its affiliates own and use certain registered and unregistered service marks, trademarks, slogans, logos, symbols, graphics and distinctive trade dress in connection with the Arcadia Services (the “Arcadia Marks”). Except for the limited rights granted to Users in the Terms of Use, all rights, title, and interest in the Arcadia Materials and Arcadia Marks, in all formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of Arcadia, its affiliates and their licensors. The Terms of Use do not grant Users any right or license with respect to the Arcadia Materials or Arcadia Marks except to the minimum extent necessary to exercise the limited license provided in Section A, and to use, reproduce and distribute Arcadia Materials that are incorporated in Subscriber Materials as permitted by the Terms of Use or any applicable Subscription Agreement.

F. PROHIBITED ACTIVITIES

Without limitation to any other restriction, obligation or condition in the Terms of Use, Users shall not, under any circumstances by any means or for any purpose whatsoever, intentionally or unintentionally do or attempt to do any of the following: search, view, print, reproduce, download, store, modify, disclose, distribute, transmit, retransmit or publish any Arcadia Materials, in whole or part, except as expressly permitted by the Terms of Use or otherwise authorized by Arcadia in writing; remove, alter or obscure any citation or attribution of the author or source, or any notice of copyright, trademark or other proprietary rights on any Arcadia Materials or make any use of the Arcadia Marks without Arcadia’s prior written consent; interfere with any other User’s access, use or enjoyment of the Arcadia Services; use the Arcadia Services or Arcadia Materials in a manner contrary to or in violation of any applicable law, regulation or rule of any jurisdiction, governmental agency or securities exchange; use any Arcadia Services to store, distribute or transmit any material without authority or right to do so or in violation of any contractual or fiduciary duty, or that is otherwise unlawful, harmful, threatening, defamatory, obscene, harassing, disparaging of any person or group on the basis of race, ethnicity, religion, age, gender or sexual orientation; access or use any content, materials or services not intentionally provided or otherwise made available by Arcadia; reverse compile, disassemble, reverse engineer or otherwise seek to discover the source code form of any Arcadia software or other technology, except as may be allowed by applicable law which is incapable of exclusion by agreement between the parties; introduce any virus, malware, denial of service attack or other potentially harmful or malicious software code or device into the Arcadia Services or Arcadia Materials, or use the Arcadia Services in any manner that might destroy, damage or degrade performance of any data communications facility, network, server, system, component, software or data used to deliver the Arcadia Services; except as expressly authorized under the Subscription Agreement, use, reproduce, download or transmit any Arcadia Services or Arcadia Materials for the purpose of providing any services to third parties (whether or not for a fee), or otherwise exploit any Arcadia Services or Arcadia Materials to Arcadia’s commercial disadvantage; use any network software, device or manual process to monitor, download or copy the Arcadia Services or Arcadia Materials, to extract information concerning usage or individual Users; or transfer, either permanently or temporarily, any rights or obligations under these Terms of Use or any Subscription.

G. USER INFORMATION AND PRIVACY POLICY

All data uploaded, accessed, transmitted, maintained or stored under the Arcadia Services will be subject to Arcadia’s privacy policies.

H. NO MEDICAL PRACTICE

Arcadia does not, nor does it intend to, engage in the performance, practice or delivery of medical or health care services. The Arcadia Services provided by Arcadia under these Terms of Use should not, in any case, be deemed or understood as a recommendation, endorsement, guarantee or warranty of the professional services of any providers who render medical or health care services. The Arcadia Services are not intended as a substitute for professional medical judgment in patient diagnosis or treatment. Arcadia shall not be responsible for any medical or health care services provided by User, and User shall, if appropriate, maintain medical liability and malpractice insurance which, in his/her own judgment, is sufficient to cover the provision of his/her services, including those using any data, reports or other information derived from, or provided under, these Terms of Use. User acknowledges that it is intended that all claims, liabilities, damages, costs and expenses, including, without limitation, attorneys’ fees (collectively, “Damages”), relating to or arising out of any claim by any third party that the Arcadia Services or their use has resulted in personal or other injury shall be covered by insurance carried by the User. Notwithstanding the foregoing, provided that the Arcadia Services perform in accordance with its documentation, User shall indemnify, defend, and hold harmless Arcadia against and from any and all Damages.

I. WARRANTY DISCLAIMERS AND EXCLUSION OF LIABILITY

ARCADIA PROVIDES THE ARCADIA SERVICES SOLELY ON AN “AS-IS” AND “AS-AVAILABLE” BASIS EXCEPT AS EXPRESSLY PROVIDED IN THE SUBSCRIPTION AGREEMENT. ARCADIA MAKES NO EXPRESS WARRANTIES OR REPRESENTATIONS OF ANY KIND UNDER THESE TERMS OF USE TO ANY USER AND ARCADIA HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE ARCADIA SERVICES AND ARCADIA MATERIALS. USERS ASSUME THE ENTIRE RISK AS TO THE USE, RESULTS AND PERFORMANCE OF THE ARCADIA SERVICES AND SYSTEMS. IN NO EVENT WILL ARCADIA, ITS AFFILIATES OR THEIR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO USERS UNDER THESE TERMS OF USE OR ON THE BASIS OF TORT OR ANY OTHER LEGAL THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY AMOUNT RESULTING FROM (I) THE PROVISION, USE OR RESULTS OF THE ARCADIA SERVICES OR SYSTEMS, ANY DELAYS, ERRORS OR OMISSIONS THEREIN OR ANY DEFECT OR LACK THEREIN OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, AVAILABILITY OR PERFORMANCE; (II) ANY LOSS OR DESTRUCTION OF USER DATA OR INFORMATION, OR THE COST OF RECOVERING SUCH DATA OR INFORMATION; (III) THE COST OF SUBSTITUTE OR REPLACEMENT SERVICES; (IV) LOST BUSINESS OPPORTUNITY, REVENUE OR PROFITS; (V) LIABILITY TO USERS’ PATIENTS OR CLIENTS, OR OTHER THIRD PARTIES; OR (VI) ANY OTHER CAUSE WHATSOEVER, EVEN IF ARCADIA OR ITS AFFILIATES, SUPPLIERS OR LICENSORS WERE ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. IF A USER OBJECTS TO THESE TERMS OF USE, AS AMENDED BY ARCADIA FROM TIME TO TIME, THE USER’S ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE USE OF THE ARCADIA SERVICES.

J. GOVERNING LAW; JURISDICTION AND VENUE

Any claim, action, suit, proceeding or dispute arising out of these Terms of Use shall in all respects be governed by, and interpreted in accordance with, the substantive law of the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof. The parties hereby consent, acknowledge and agree that venue and jurisdiction for any action, suit or proceeding arising out of these Terms of Use shall vest exclusively in the federal or state courts of general jurisdiction located in Middlesex County, Massachusetts.

K. AMENDMENT AND WAIVER; SEVERABILITY

TERMS OF USE FOR ARCADIA SERVICES

These terms and conditions apply to all users of Arcadia Services. Arcadia Solutions LLC (“Arcadia”) is in the business of providing data connectivity, integration, reporting, and analytics software and solutions for a variety of healthcare providers and organizations (collectively, the “Arcadia Services”). All access to and use of the Arcadia Services is subject to the terms and conditions in this document (including any other terms, agreements and documents that are linked or referred to below) and in any separate or supplemental terms of use agreement that may be referenced or linked within the Arcadia Services (collectively, the “Terms of Use”). By accessing, viewing or using any part or component of the Arcadia Services, a user (“User”) agrees to be contractually bound by the Terms of Use.

A. LICENSE GRANT

Arcadia grants Users a nonexclusive, personal, nontransferable, revocable, limited license to access and use the Arcadia Services only in accordance with the Terms of Use. Users’ binding obligations under the Terms of Use are in consideration of Arcadia’s grant of license to use the Arcadia Services. The Arcadia Services include all contents, know-how and services produced, distributed or provided by Arcadia in, on or through the Arcadia Services and all software and other technology hosted or used by Arcadia to provide the Arcadia Services (collectively, the “Arcadia Materials”). Arcadia Materials are made available to Users only as part of Arcadia Services that are offered on a paid subscription basis (“Subscription Services”). Unless otherwise specified, the Terms of Use apply to the Subscription Services.

B. PERMITTED USE OF SUBSCRIPTION SERVICES

Access to, and use of, Subscription Services is subject to terms and conditions set forth in a separate Arcadia Subscription and Services Agreement (“Subscription Agreement”) between Arcadia and a User’s employer, an affiliate of the User’s employer, or another related entity (a “Subscriber”) in addition to the Terms of Use. A Subscriber may authorize certain of its employees and other related personnel (“Authorized Users”) to use the Subscription Services covered by the Subscription Agreement (“Subscribed Services”). Authorized Users are permitted to use the applicable Subscribed Services, solely in connection with the Subscriber’s business purposes. In addition to each Authorized User’s personal obligation to comply with the Terms of Use, the Subscriber is responsible under the Subscription Agreement for strict compliance by all of its Authorized Users.

C. LICENSE RESTRICTIONS

Users shall not access or use the Arcadia Services or Arcadia Materials except to the extent expressly permitted by these Terms of Use, or as otherwise expressly permitted in writing by Arcadia.

D. ACCESS RESTRICTIONS

Users shall not access or attempt to access any Arcadia Materials other than through Subscribed Services for which they are authorized, or otherwise circumvent or attempt to circumvent any access restrictions or controls through hacking or other means. Authorized Users shall not disclose their assigned user name or password to anyone. Without limitation to any other available contractual, legal or equitable remedies, Arcadia reserves the right to revoke, suspend or terminate, without notice, any User’s access to one or more (or all) of the Arcadia Services upon any violation or suspected violation of the Terms of Use.

E. PROPRIETARY RIGHTS

Arcadia and its affiliates own and use certain registered and unregistered service marks, trademarks, slogans, logos, symbols, graphics and distinctive trade dress in connection with the Arcadia Services (the “Arcadia Marks”). Except for the limited rights granted to Users in the Terms of Use, all rights, title, and interest in the Arcadia Materials and Arcadia Marks, in all formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of Arcadia, its affiliates and their licensors. The Terms of Use do not grant Users any right or license with respect to the Arcadia Materials or Arcadia Marks except to the minimum extent necessary to exercise the limited license provided in Section A, and to use, reproduce and distribute Arcadia Materials that are incorporated in Subscriber Materials as permitted by the Terms of Use or any applicable Subscription Agreement.

F. PROHIBITED ACTIVITIES

Without limitation to any other restriction, obligation or condition in the Terms of Use, Users shall not, under any circumstances by any means or for any purpose whatsoever, intentionally or unintentionally do or attempt to do any of the following: search, view, print, reproduce, download, store, modify, disclose, distribute, transmit, retransmit or publish any Arcadia Materials, in whole or part, except as expressly permitted by the Terms of Use or otherwise authorized by Arcadia in writing; remove, alter or obscure any citation or attribution of the author or source, or any notice of copyright, trademark or other proprietary rights on any Arcadia Materials or make any use of the Arcadia Marks without Arcadia’s prior written consent; interfere with any other User’s access, use or enjoyment of the Arcadia Services; use the Arcadia Services or Arcadia Materials in a manner contrary to or in violation of any applicable law, regulation or rule of any jurisdiction, governmental agency or securities exchange; use any Arcadia Services to store, distribute or transmit any material without authority or right to do so or in violation of any contractual or fiduciary duty, or that is otherwise unlawful, harmful, threatening, defamatory, obscene, harassing, disparaging of any person or group on the basis of race, ethnicity, religion, age, gender or sexual orientation; access or use any content, materials or services not intentionally provided or otherwise made available by Arcadia; reverse compile, disassemble, reverse engineer or otherwise seek to discover the source code form of any Arcadia software or other technology, except as may be allowed by applicable law which is incapable of exclusion by agreement between the parties; introduce any virus, malware, denial of service attack or other potentially harmful or malicious software code or device into the Arcadia Services or Arcadia Materials, or use the Arcadia Services in any manner that might destroy, damage or degrade performance of any data communications facility, network, server, system, component, software or data used to deliver the Arcadia Services; except as expressly authorized under the Subscription Agreement, use, reproduce, download or transmit any Arcadia Services or Arcadia Materials for the purpose of providing any services to third parties (whether or not for a fee), or otherwise exploit any Arcadia Services or Arcadia Materials to Arcadia’s commercial disadvantage; use any network software, device or manual process to monitor, download or copy the Arcadia Services or Arcadia Materials, to extract information concerning usage or individual Users; or transfer, either permanently or temporarily, any rights or obligations under these Terms of Use or any Subscription.

G. USER INFORMATION AND PRIVACY POLICY

All data uploaded, accessed, transmitted, maintained or stored under the Arcadia Services will be subject to Arcadia’s privacy policies.

H. NO MEDICAL PRACTICE

Arcadia does not, nor does it intend to, engage in the performance, practice or delivery of medical or health care services. The Arcadia Services provided by Arcadia under these Terms of Use should not, in any case, be deemed or understood as a recommendation, endorsement, guarantee or warranty of the professional services of any providers who render medical or health care services. The Arcadia Services are not intended as a substitute for professional medical judgment in patient diagnosis or treatment. Arcadia shall not be responsible for any medical or health care services provided by User, and User shall, if appropriate, maintain medical liability and malpractice insurance which, in his/her own judgment, is sufficient to cover the provision of his/her services, including those using any data, reports or other information derived from, or provided under, these Terms of Use. User acknowledges that it is intended that all claims, liabilities, damages, costs and expenses, including, without limitation, attorneys’ fees (collectively, “Damages”), relating to or arising out of any claim by any third party that the Arcadia Services or their use has resulted in personal or other injury shall be covered by insurance carried by the User. Notwithstanding the foregoing, provided that the Arcadia Services perform in accordance with its documentation, User shall indemnify, defend, and hold harmless Arcadia against and from any and all Damages.

I. WARRANTY DISCLAIMERS AND EXCLUSION OF LIABILITY

ARCADIA PROVIDES THE ARCADIA SERVICES SOLELY ON AN “AS-IS” AND “AS-AVAILABLE” BASIS EXCEPT AS EXPRESSLY PROVIDED IN THE SUBSCRIPTION AGREEMENT. ARCADIA MAKES NO EXPRESS WARRANTIES OR REPRESENTATIONS OF ANY KIND UNDER THESE TERMS OF USE TO ANY USER AND ARCADIA HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE ARCADIA SERVICES AND ARCADIA MATERIALS. USERS ASSUME THE ENTIRE RISK AS TO THE USE, RESULTS AND PERFORMANCE OF THE ARCADIA SERVICES AND SYSTEMS. IN NO EVENT WILL ARCADIA, ITS AFFILIATES OR THEIR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO USERS UNDER THESE TERMS OF USE OR ON THE BASIS OF TORT OR ANY OTHER LEGAL THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY AMOUNT RESULTING FROM (I) THE PROVISION, USE OR RESULTS OF THE ARCADIA SERVICES OR SYSTEMS, ANY DELAYS, ERRORS OR OMISSIONS THEREIN OR ANY DEFECT OR LACK THEREIN OF QUALITY, ACCURACY, COMPLETENESS, TIMELINESS, AVAILABILITY OR PERFORMANCE; (II) ANY LOSS OR DESTRUCTION OF USER DATA OR INFORMATION, OR THE COST OF RECOVERING SUCH DATA OR INFORMATION; (III) THE COST OF SUBSTITUTE OR REPLACEMENT SERVICES; (IV) LOST BUSINESS OPPORTUNITY, REVENUE OR PROFITS; (V) LIABILITY TO USERS’ PATIENTS OR CLIENTS, OR OTHER THIRD PARTIES; OR (VI) ANY OTHER CAUSE WHATSOEVER, EVEN IF ARCADIA OR ITS AFFILIATES, SUPPLIERS OR LICENSORS WERE ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. IF A USER OBJECTS TO THESE TERMS OF USE, AS AMENDED BY ARCADIA FROM TIME TO TIME, THE USER’S ONLY RECOURSE IS TO IMMEDIATELY DISCONTINUE USE OF THE ARCADIA SERVICES.

J. GOVERNING LAW; JURISDICTION AND VENUE

Any claim, action, suit, proceeding or dispute arising out of these Terms of Use shall in all respects be governed by, and interpreted in accordance with, the substantive law of the Commonwealth of Massachusetts, without regard to the conflicts of laws provisions thereof. The parties hereby consent, acknowledge and agree that venue and jurisdiction for any action, suit or proceeding arising out of these Terms of Use shall vest exclusively in the federal or state courts of general jurisdiction located in Middlesex County, Massachusetts.

K. AMENDMENT AND WAIVER; SEVERABILITY

Arcadia may update or otherwise amend these Terms of Use at any time without notice. Users are bound by the Terms of Use then in effect each time they access or use the Arcadia Services. The provisions of the Subscription terms, if in effect between Arcadia and an Authorized User’s employer, employer’s affiliate or other affiliated party, shall take precedence over any conflicting or inconsistent provision in the Terms of Use. No waiver of any right or remedy on one occasion by Arcadia shall be deemed a waiver of such right or remedy on any other occasion. In the event that any provision of the Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

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