Select CT Terms of Service
SELECT CT SERVICE
- Limited License. MedQIA grants the Customer a limited, revocable, nontransferable, nonexclusive right to permit those individuals authorized by you or on your behalf, and who are your employees, agents or contractors (“Users”), to use the Select CT service solely for your own internal business operations and subject to compliance with these Terms. The Select CT service consists of a cloud-based comprehensive quantitative CT-based (‘QCT”) analysis platform designed to provide physicians with objective measures of relevant metrics to assist in the patient selection process for endoscopic lung volume reduction (“ELVR”) procedures. Select CT services are provided by MedQIA and its’ licensors from a data center facility to which your Users have remote access.
The rights granted to you in the Agreement are subject to all of the following agreements and restrictions: (i) only authorized Users may utilized the Select CT services; (ii) Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Select CT service available to any third party other than the authorized Users under this Agreement; (iii) you shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Select CT service or use the Select CT service in order to build a similar or competitive product or service; (iv) no part of the Select CT service may be copied, reproduced, adapted, altered, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (v)you shall not circumvent or disable any security or other technological features or measures of the Select CT Service, or attempt to probe, scan or test the vulnerability of a network and or system or to breach security or authentication measures; (vi) intentionally or knowingly upload or provide for processing any information or materials that are illegal, defamatory, offensive, abusive, obscene, or that violate a person or entity’s privacy or intellectual property rights; (vii) intentionally or knowingly use the Select CT Service to harm, threaten or harass another person or organization; (viii) intentionally send, store, or distribute, or use less than commercially reasonable efforts to avoid and prevent sending, storing or distributing, any viruses, worms, Trojan horses, or other malware component harmful to the Select CT service, Company or a third party’s network or system; (ix) you shall not use or access the Select CT service to build or support, and/or assist a third party in building or supporting, products or services competitive to the Select CT service, (x) you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Select CT service; and (xi) you acknowledge and agree that MedQIA and its’ licensors shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Select CT service and any suggestions, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Select CT service. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Documentation, or any part thereof, including any right to obtain possession of any source code, data or technical material relating to the Service.
- The Select CT Services, including, without limitation, all related Software, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its licensors and suppliers and all rights therein and thereto not expressly granted to Customer in these Terms are reserved by MedQIA, its’ licensors and suppliers. All rights in and to the Services, Software, Data Collection Devices and Documentation not expressly granted to Customer in this Agreement are reserved by Company and its licensors and suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Software, any Documentation related to the Select CT Service or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Select CT Services.
- Your Data. MedQIA will protect any data provided by you that resides in the Select CT service environment (“Your Data”) as Confidential Information, as described below. You acknowledge and agree that Your Data may be transferred or stored outside of the country, within a Cloud environment by MedQIA suppliers, or other jurisdiction where you and your Users are located, such as in connection with the provision of the Select CT service. Submission of data via Fedex must be encrypted prior to submission. You must also de-identify or anonymize Your Data before submission to MedQIA by replacing the Patient Name and MRN in the DICOM tags with a unique identifier assigned and maintained by your facility. If the Patient Name and/or MRN are not removed, MedQIA will notify your facility and MedQIA will not be able to process such image data. If Your Data is not adequately de-identified or is incomplete, the submission may be rejected and you will be notified. Customer will be allowed to re-send the scan an additional time. However, if the data is rejected a second time, the third submission will be counted as a scan entitlement from the Select CT service. If a scan is received and contains PHI in other DICOM tags than the Patient Name or MRN ones, the scan will be de-identified by MedQIA and the analysis will be done. You acknowledge and agree that it is your obligation to inform third parties of the use, processing, or transfer of Your Data and to ensure that such third parties have given their consent to such use, processing, and transfer as required by all applicable data protection legislation necessary for MedQIA and its suppliers to provide the Select CT services. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness and of all Your Data. MedQIA’s practices concerning the privacy and security of Your Data in connection with the Select CT service is set forth in MedQIA’s Privacy Notice http://medqia.com/about-us/privacy-notice/, which is incorporated herein by reference.
- Representations, Warranties, and Disclaimers. Customer represents that You have received all of the rights, consents, and authorizations required under any applicable contract, law, rule or regulation, including without limitation all applicable data protection and privacy laws to provide patient information and images to MedQIA and its suppliers for the provision of the Select Ct services under these Terms. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SECLECT CT SERVICE AND RELATED SOFTWARE, EQUIPMENT, DOCUMENTATION, AND SERVICES ARE ALL PROVIDED SOLELY ON AN “AS IS,” AND “AS AVAILABLE BASIS, WITHOUT WARRANTY OF ANY KIND, AND MEDQIA AND ITS LICENSORS AND SUPPLIERS MAKE NO (AND HEREBY DISCLAIM ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUALITY OF SERVICE. MEDQIA AND ITS LICENSORS AND SUPPLIERS NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SELECT CT SERVICE OR THE RESULTS YOU MAY OBTAIN BY USING THE SELECT CT SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDQIA AND ITS THIRD PARTY LICENSORS AND SUPPLIERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SELECT CT SERVICE OR ON DEMAND MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU SUBMIT OR OBTAIN THROUGH THE SELECT CT SERVICE WILL MEET YOUR REQUIREMENTS.YOU ACKNOWLEDGE THAT MEDQIA, ITS LICENSORS AND ITS SUPPLIERS DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SELECT CT SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. MEDQIA, ITS LICENSORS AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Uptime Guarantee. MedQIA shall provide technical support by telephone consistent with MedQIA’s standard support offerings information or other technical support regarding Service use, features, and troubleshooting between the hours of 6:00 am to 5:00 pm PST.
- Limitation of Liability. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, MEDQIA, ITS LICENSORS OR ITS SUPPLIERS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH MEDQIA’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SELECT CT SERVICE OR RELATED SOFTWARE, EQUIPMENT, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF MEDQIA HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF MEDQIA ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS AND THE SELECT CT SERVICE SHALL NOT EXCEED FIFTY U.S. DOLLARS ($50). IN NO EVENT SHALL MEDQIA’S LICENSORS OR SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS OR THE SELECT CT SERVICE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER IN ITS ENTIRETY. THIS LIMITATION OF LIABILITY SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
- Customer will defend, indemnify, and hold harmless Company, and its officers, directors, employees, agents, and customers (each, an “Indemnitee”) from and against any claim, suit, demand, or other legal action (each, a “Claim”) brought by a third party against any Indemnitee(s), to the extent such Claim arises from or relates to any breach of these Terms by Customer or its Users, and Customer shall pay all liabilities, costs, damages, and expenses (including, without limitation, attorneys’ fees) suffered or incurred by Indemnitees in connection with such Claim.
- Confidential Information. Your Data shall be considered Confidential Information. Confidential Information of MedQIA and its licensors and suppliers (“MedQIA Confidential Information”) shall include the Select CT service and related materials, software, and documentation. A party’s Confidential Information shall not include information that (i) at the time of disclosure is part of the public domain, as evidenced by written publication, through no act or omission of the other party; (ii) after disclosure becomes part of the public domain by written publication through no act or omission of the other party, (iii) the receiving party can demonstrate was in the its lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party or any person, firm or corporation acting on its behalf; (iv) the receiving party can demonstrate was acquired by the receiving party independently, after disclosure hereunder, by a third party without restriction on disclosure, breach of agreement or violation of law or; (v) is independently developed by the other party without use of or reference to the Confidential Information.
- Disclosure of Confidential Information shall not be precluded if such disclosure is in response to a valid court or other government body order, valid subpoena, or is otherwise required to be disclosed by law; provided that the party required to make such disclosure notifies the disclosing party thereof promptly in writing prior to making such disclosure and the receiving party agrees to reasonably cooperate with the disclosing party if it should seek to contest or limit the scope of such disclosure. The parties agree to use the standard of care in preventing disclosure of the other party’s Confidential Information as it uses to protect its own information of like character, but in any event not less than a commercially reasonable degree of care. The parties agree to hold each other’s Confidential Information in confidence for a period of three (3) years from the date of disclosure.
- Notwithstanding the foregoing, you acknowledge and agree that MedQIA may disclose your Confidential Information to its Third-Party Providers to the extent necessary to provide the Select CT service, provided that MedQIA has a non-disclosure agreement in place with such Third Party Provider that protects such Confidential Information against disclosure in a manner no less protective than these Terms. This Section reflects the entire understanding of the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.
- Your Responsibilities. You will ensure that any use of the Select CT service you and your Users is in accordance with these Terms, and you shall be responsible for any breach by any User of Terms. You will follow the Select CT protocol to ensure that scans provided to MedQIA meet quality and other technical requirements to ensure usability by MedQIA. The Select CT protocol outlining the foregoing quality and technical requirements provided by Olympus. Scans that are submitted that do not follow the Select CT protocol will be rejected. You will obtain any consents required for MedQIA to perform the Select CT service, including, but not limited to, patient consents related to the collection and transmission of Protected Health Information. You acknowledge that you are responsible for making all clinical healthcare decisions regarding the use of the Select CT service and its output, and you understand that MedQIA is not making any clinical diagnosis or recommendations through the provision of the Select CT service. You are responsible for ensuring that your network and systems comply with specifications that MedQIA provides. MedQIA is not responsible for your network connections or for conditions or problems arising from or related to your network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the Internet.
- Notices. MedQIA may give notice applicable to MedQIA’s general Select CT service customer base by means of a general notice on the Select CT service portal and notices specific to you by written communication sent by first class mail or pre-paid post to your address on record in MedQIA’s account information along with a copy to your General Counsel at the same address. If you have a dispute with MedQIA or you wish to provide a notice under the Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: MedQIA, LLC at 11850 Wilshire Blvd, Suite. 1170, Los Angeles, CA 90024.
- Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, Internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed services, including the Select CT service. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Select CT service.
- Statistical Information. MedQIA may compile statistical and performance information related to the provision of the Select CT service, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your Confidential Information. MedQIA retains all intellectual property rights in such information.
- General Provisions. Any action related to the Agreement will be governed by California law and controlling U.S. federal law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to the Agreement. Any disputes, actions, claims or causes of action arising out of or in connection with the Agreement shall be subject to the exclusive jurisdiction of the state courts of Santa Clara, San Mateo or San Francisco counties, California, and the federal courts of the Northern District of California. These Terms and the information which is incorporated into this Terms by written reference represents the parties’ entire understanding relating to the Select CT service and supersedes any prior or contemporaneous, conflicting or additional, communications. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between MedQIA and you as a result of your use of the Select CT service. You may not assign the Agreement without the prior written approval of MedQIA. Any purported assignment in violation of this section shall be void. MedQIA reserves the right to provide some or all of the Select CT service from locations and/or through use of Third-Party Providers, worldwide. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for breach of MedQIA’s proprietary rights, no action, regardless of form, arising out of or relating to these Terms may be brought by either party more than two years after the cause of action has accrued. Any rights not expressly granted herein are reserved by MedQIA. MedQIA reserves the right to modify these Terms.