Jai Medical Systems MCO, Inc. LicenseAgreement (Effective as of June 2 2014)
IMPORTANT – THIS IS A LEGAL DOCUMENT BETWEEN YOU (WHICH SHALL BEIDENTIFIED HEREIN BY REFERENCE TO A "User(s)") AND JAI MEDICAL SYSTEMSMCO, INC. ("Jai Medical Systems"). USERS SHOULD READCAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS LICENSEAGREEMENT (THE “Agreement”) AS THEY GOVERN ACCESS TO A WEB APPLICATION AND ALLWRITTEN, VISUAL, AND ORAL INFORMATION PROVIDED THEREWITH (together, the “JaiWeb Application”) THAT IS MADE AVAILABLE BY JAI MEDICAL SYSTEMS. JAI MEDICALSYSTEMS IS WILLING TO ALLOW ACCESS TO AND USE OF THE JAI WEB APPLICATION ONLYON THE CONDITION THAT ITS USERS ACCEPT ALL OF THE TERMS AND CONDITIONSCONTAINED IN THIS LICENSE AGREEMENT.
2. Confidential Obligation
All information to which a User has accessby utilizing its user name, password, or other security device shall be deemedconfidential information. Users agree to maintain the confidentiality of suchinformation in accordance with Federal and state laws. In the absence of anysuch provisions, Users agree to use the same means to protect the confidentialinformation as the Users use to protect confidentiality in their own trade orbusiness, but in any event shall at least use reasonable means to protect confidentialinformation. With respect thereto, a User shall not, nor permit any third partyto, sell, transfer, publish, disclose, or otherwise make available to anotherthird party any portion of the confidential information. Moreover, a Usershall not, nor shall a User permit any third party to, disable, circumvent, orotherwise avoid any security device, mechanism, protocol, or procedureestablished by Jai Medical Systems for use of the Jai Web Application. Useragrees that he or she shall only access that information which he or she has alegitimate business need to know. User understands and shall make any related individualwho is also provided confidential information obtained through or from the Jai WebApplication aware that access to health claims information in the possession ofJai Medical Systems is subject to the confidentiality standards set forth understate and/or Federal law and/or the restrictions of the National Committee forQuality Assurance, and that improper disclosure of such information to anyonewho does not have a legitimate business need to know the information, maysubject the User and/or any other individuals who have access to theconfidential information to criminal penalties.
In addition and without limitation of theconfidentiality obligations above, each user shall comply with the followingrules:
A. User Names, passwords, or other securitydevices shall not be shared with any other individual, except as previouslyapproved in writing by Jai Medical Systems Passwords shall not be posted orexposed to the view of others and should be constructed in a manner so as tomaintain the confidentiality of each authorized individual.
B. Automatic log on processes, such as PFKEYS or BAT FILES are not to be used unless they require manual input of theUser Name, password, or use of other security device.
C. Passwords should not be saved in thesystem.
D. User shall ensure at all times that novisual display of any confidential information shall be visible to the generalpublic or unauthorized personnel.
E. Access to the Jai Web Application asdescribed in these terms and conditions shall only be available and utilized byauthorized individuals which Jai Medical Systems has been notified of, aschanges occur and also from time to time. As between Jai Medical Systems andthe User, Jai Medical Systems owns the confidential information providedhereunder and the grant of the limited license to use the confidentialinformation pursuant to this agreement does not transfer any rights of any kindto the User other than a limited right to use such information in accordancewith the security procedures set forth herein or otherwise provided by JaiMedical Systems. Further, any materials provider to User and the entity towhich they are affiliated by Jai Medical Systems regarding the Jai Web Application,including instructions or manuals, shall remain the sole property of JaiMedical Systems and shall be promptly returned upon termination of thisagreement.
4. No Warranty; Limitation of Liability
Jai Medical Systems makes commercially reasonableefforts to maintain the accuracy of the information available through the Jai WebApplication. However, JAI MEDICAL SYSTEMSDOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, ORTHE RESULTS OF THE USE, OF THE JAI WEB APPLICATION IN TERMS OF AVAILABILITY,ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDEDPURPOSE, OR OTHERWISE. JAI MEDICAL SYSTEMS ALSO DOES NOT REPRESENT ORWARRANT THAT THE JAI WEB APPLICATION WILL ENABLE YOU TO MEET OR ACHIEVE ANYLEGAL STANDARD OR THAT THE JAI WEB APPLICATION WILL OPERATE ERROR-FREE,UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE JAI WEBAPPLICATION AND ITS RELATED SERVICES ARE OTHERWISE PROVIDED “AS IS” AND"AS AVAILABLE," AND JAI MEDICAL SYSTEMS HEREBY DISCLAIMS ANY AND ALLWARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIEDWARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR APARTICULAR PURPOSE.
You FURTHER acknowledgeand agree that Jai Medical Systems shall not be liable or responsible for anyclaim, damage, or loss resulting from a cause beyond Jai Medical Systems'control. MOREOVER, YOU AGREE THAT IN NOEVENT SHALL JAI MEDICAL SYSTEMS BE LIABLE FOR ANY INDIRECT, PUNITIVE,INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION,FOR LOST PROFITS, FOR LOST DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITHYOUR USE OF THE JAI WEB APPLICATION, OR FOR ANY INFORMATION OR MATERIALSAVAILABLE THROUGH THE JAI WEB APPLICATION, WHETHER BASED IN CONTRACT, TORT,STRICT LIABILITY, OR OTHERWISE AND EVEN IF JAI MEDICAL SYSTEMS HAS BEEN ADVISEDOF THE POSSIBILITY OF DAMAGES. INADDITION, AND WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF JaiMedical Systems UNDER THIS LICENSE AGREEMENT FOR ANY REASON WHATSOEVER RELATEDTO USE OF The Jai Web Application, RESULTS FROM USE OF THE JAI WEB APPLICATION,OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED ONE THOUSANDDOLLARS $1,000.00 (USD).
Conditioned on a User’s continued compliancewith the terms and conditions of this License Agreement, including, withoutlimitation, the obligation to pay all applicable fees and charges (if any), JaiMedical Systems will provide non-exclusive, non-transferable, and non-sublicenseableaccess to its Jai Web Application in a commercially reasonable manner asdetermined by Jai Medical Systems in its sole discretion, subject to requiredand emergency maintenance, failure of third party networks and communicationsfacilities, and events of force majeure. Jai Medical Systems shall not beresponsible for any period of system down time which Jai Medical Systems orother maintenance services determines in its sole judgment may be required forsystem maintenance or which occur for any reason beyond their control. Further, by installing, accessing, or using the Jai Web Application, Usersagree to be responsible for and to abide by all applicable local, state,national, and international laws, regulations, rules, and guidelines withrespect to their use of the Jai Web Application.
The content layout, formatting, andarrangement of and related services for the Jai Web Application as madeavailable through the designated Jai Medical Systems’ portal, site or Web pageshall be as specified by Jai Medical Systems in its sole discretion. Accordingly, with respect to the Jai Web Application to be provided by JaiMedical Systems under this Agreement, all Users acknowledge and agree to thefollowing: (i) Jai Medical Systems has the right to control and direct themeans, manner, and method by which any related services are performed or anyrelated software is provided; (ii) Jai Medical Systems may, from time to timeengage independent contractors, consultants, or subcontractors to aid JaiMedical Systems in performing any related services or providing any relatedsoftware under this Agreement; and (iii) Jai Medical Systems has the right toperform services for or provide software to others during the Term of thisAgreement. To the extent a User requests from Jai Medical Systems additionalsupport, training, security, or other programming work relating to the Jai WebApplication beyond Jai Medical Systems’ stated obligations in this Agreement,Jai Medical Systems may provide such support, training, security, orprogramming work, in its sole discretion, at its standard time and materialsrates or such other pricing as agreed to in writing and subject to the terms ofthis Agreement and any other written agreement required by Jai Medical Systems.
The right to use the Jai Web Application islimited. All Users therefore may not (i) use, copy, store, reproduce,transmit, distribute, display, rent, lease, sell, modify, alter, license,sublicense, or commercially exploit the Jai Web Application (or any partthereof) in any manner not expressly permitted by this Agreement, (ii) reverseengineer, decompile, disassemble, translate, or create any derivative work ofthe Jai Web Application (or any part thereof); (iii) access, link to, or useany source code from the Jai Web Application (or any part thereof); or (iv)erase or remove any proprietary or intellectual property notice contained in oron the Jai Web Application (or any part thereof). In addition, you shall notenter into any contractual relationship or other legally binding obligationwith any third party or person which shall have the purpose or effect ofencumbering Jai Medical Systems or the use of the Jai Web Application (or anypart thereof).
Jai Medical Systems does not grant anyimplied right to you or any other person and does not transfer or assign anyownership or intellectual property interest or title in and to the Jai WebApplication (or any part thereof) to you or anyone else. All text, graphics,user interfaces, visual interfaces, photographs, sounds, artwork, computer code(including html code), programs, software, databases, products, information,and documentation as well as the design, structure, selection, coordination,expression, "look and feel," and arrangement of the Jai WebApplication, unless otherwise indicated, are owned, controlled, and licensed byJai Medical Systems or its licensors. The Jai Web Application is Copyright © 2014Jai Medical Systems MCO, Inc. and/or its licensors. JAI MEDICAL SYSTEMS, the JaiMedical Systems logo, and all other names, logos, and icons identifying JaiMedical Systems and its software, programs, and services are proprietarytrademarks of Jai Medical Systems, and any use of such marks, including,without limitation, as domain names, without the express written permission of JaiMedical Systems is strictly prohibited. Other product and company namesmentioned herein or on the Jai Web Application may be the trademarks and/orservice marks of their respective owners.
6. Terms and Termination
Jai Medical Systems wishes to maintain the JaiWeb Application as a helpful resource for all of its Users. Jai MedicalSystems therefore reserves the right to view, monitor, and/or record activityon the Jai Web Application (in accordance with applicable law) and to complywith government or court appointed authorities when necessary to protect the JaiWeb Application or its other rights or interest. Actual or attemptedunauthorized use of the Jai Web Application may also result in criminal and/orcivil prosecution, including, without limitation, punishment under the ComputerFraud and Abuse Act of 1986 under U.S. federal law. Moreover, Jai MedicalSystems reserves the right to suspend or terminate immediately access to the JaiWeb Application if a User fails to comply with the terms and conditions of thisAgreement. In such event, Jai Medical Systems shall be relieved of itsobligations under this Agreement or any other applicable agreement with JaiMedical Systems during the period of suspension and shall not be found to be inbreach of this Agreement or any other applicable agreement with Jai MedicalSystems for such relief.
This Agreement and a User’s right to use theJai Web Application will take effect (or re-take effect) at the moment a Userregisters with or uses the Jai Web Application and is in effect so long as aUser pays all applicable fees and charges in a timely manner or untilterminated earlier as set forth below. In particular, Jai Medical Systemsreserves the right at any time and on reasonable grounds, which shall include,without limitation, any reasonable belief of fraud, illegal activity, oractions or omissions that violate any term or condition of this Agreement, toterminate this Agreement with a User in order to protect its name, business, orgoodwill and/or any other User. Users acknowledge and agree that Jai MedicalSystems shall have the sole right to determine in its reasonable discretionwhether a User is engaging in any unauthorized activity and/or violating anyterm or conditions of this Agreement. Termination or expiration of thisAgreement will be effective without notice. Users may also terminate at anytime by ceasing to use the Jai Web Application. But, all applicable provisionsof this Agreement will survive termination, as outlined below. In particular,any fees or charges that were due to Jai Medical Systems prior to terminationor expiration shall remain and shall become immediately payable to Jai MedicalSystems upon termination. Upon termination or expiration, Users must alsoreturn to Jai Medical Systems and/or destroy or delete from your computer,laptop, work station, network, or system all copies of (or parts of) the JaiWeb Application (and any associated materials) in your possession. Anylicenses from Jai Medical Systems and any right to use the Jai Web Applicationshall immediately cease upon termination of this Agreement. Moreover, theprovisions concerning confidentiality, Jai Medical Systems' proprietary rights,warranty disclaimer, limitation of liability, governing law, enforcement rights,termination, and the miscellaneous terms will survive the termination orexpiration of this Agreement for any reason.
A. User acknowledges that confidentialinformation is a valuable asset of Jai Medical Systems and improper disclosureor use of such information may cause Jai Medical Systems irreparable harm andthat there may be no adequate remedy available at law. Accordingly, the Useragrees that Jai Medical Systems shall have the right to obtain immediateinjunctive relief to enforce obligations under this Agreement in addition toany other rights and remedies Jai Medical Systems may have at law or in equity. Users hereby waive any requirement that Jai Medical Systems or its licensorspost any bond or other security in the event any injunctive or equitable reliefis sought by or awarded to Jai Medical Systems to enforce any provision of thisAgreement.
B. Eligibility and benefit information donot constitute authorization of claim payment or supersede eligibilityinformation provided by the Maryland Department of Mental Health and Hygiene.These terms and conditions are not intended to supersede any other contractbetween Jai Medical Systems and another party. Accordingly, all Usersunderstand and agree that additional notices, terms, and conditions, including,without limitation, Jai Medical Systems' privacy policies, may apply tothe use of the Jai Web Application or to service arrangements with Jai MedicalSystems. All other member and provider contractual limitations, including butnot limited to, prior approvals, or pre-certifications must be handledseparately as defined in the Member and Provider Information offered by JaiMedical Systems. Appropriate penalties as defined in those contracts shallapply for failure to meet these obligations.
C. Any computer hardware and/or softwarepurchased by User to obtain access to a Jai Web Application shall be the solefinancial responsibility of the User or the entity to which they areaffiliated. Jai Medical Systems shall not be responsible in any way for any ofthe software or hardware equipment in the event that this Agreement isterminated or the access provided hereunder is otherwise removed or restrictedin any way. In addition, User is responsible for ensuring that the hardware andsoftware they have purchased is compatible with the Jai Web Application. Anycosts associated with providing this access, including but not limited to thecharges for the ongoing use of telecommunications lines, internet serviceproviders, or the like shall be borne by the User.
D. User represents and warrants that he/shehas the authority to access this information on behalf of his/her employer andthe authority to agree to these Terms and Conditions. User and his/her employershall indemnify and hold Jai Medical Systems harmless for any loss, costs, orexpense, including but not limited to reasonable attorney’s fees directlyrelated to the User’s improper use of a Jai Medical Systems MCO, Inc. interactiveweb application, access to confidential information contained therein, User’srelease of confidential information to any unauthorized individuals orentities, User’s breach or the breach by any of the User’s employees, agents,or representatives of the covenants of this agreement.
E. To the extent that Useris authorized to enter information in one of Jai Medical Systems’ computersystems via a Jai Web Application, each User hereby and automatically grants toJai Medical Systems a non-exclusive, worldwide, royalty-free, right and licenseto copy, distribute, create derivative works from, display, modify, reformat,transmit, and otherwise use any such information as necessary in connectionwith the Jai Web Application and Jai Medical Systems' service, support, orbusiness duties or obligations and agrees that he/she is responsible for theaccuracy of any information submitted. User further represents that he/she hasall rights and permission necessary to make available any such information.User understands that Jai Medical Systems or one of its accounts shall relyupon such information in making decisions related to the administration ofhealth benefit plans such as eligibility determination and, thus, will usecommercially reasonable efforts to ensure the accuracy of the informationprovided. User further understands that changes made to membership informationsuch as date of birth or address may cause Jai Medical Systems to make changesto premium rates at the next billing or renewal date. If a User provides anyfalse, inaccurate, untrue, or incomplete information, Jai Medical Systemsreserves the right to terminate immediately such User’s access to and use ofthe Jai Web Application.
F. This License Agreementhas been made in and will be construed and enforced solely in accordance withthe laws of the State of Maryland, U.S.A., as applied to agreements enteredinto and completely performed in the State of Maryland. The state or localcourts in the State of Maryland will have exclusive jurisdiction and venue overall controversies in connection with this Agreement, and you hereby consent tosuch exclusive and personal jurisdiction and venue.
G. The relationship between aUser and Jai Medical Systems is and shall be that of independent contractorsand nothing in this Agreement shall be construed or used to create or imply anyrelationship of partners, joint venturers, or employer and employee. User maynot assign or otherwise transfer this Agreement, in whole or in part, without JaiMedical Systems' prior written consent. Any attempt of assignment, delegation,or transfer in violation of this Agreement shall be void, of no effect, and amaterial breach of this Agreement. Notwithstanding the foregoing, Jai MedicalSystems may assign this Agreement in whole or in part. Failure by Jai MedicalSystems to insist on strict performance of any of the terms and conditions ofthis Agreement will not operate as a waiver of that or any subsequent defaultor failure of performance. In the event any provision of this Agreement isfound by an arbitrator or court of competent jurisdiction to be invalid, void,or unenforceable, User agrees that unless it materially affects the entireintent and purpose of this Agreement, the invalidity, voidness, orunenforceability shall affect neither the validity of this Agreement nor theremaining provisions herein, and the provision in question shall be deemed tobe replaced with a valid and enforceable provision most closely reflecting theintent and purpose of the original provision. Headings are for convenienceonly and have no legal or contractual effect. This Agreement represents theentire agreement between a user and Jai Medical Systems with respect to subjectmatter herein, and supersedes all prior or contemporaneous communications andproposals, whether electronic, oral, or written between a User and Jai MedicalSystems with respect to the Jai Web Application. Please note that Jai MedicalSystems reserves the right to change the terms and conditions of this Agreementand by which the Jai Web Application is extended to Users by providing inwriting or electronically a copy of such revised terms (or notice thereof). JaiMedical Systems also has the exclusive right to provide updates, upgrades,and/or changes to any aspect of the Jai Web Application at any time. Users’continued use of the Jai Web Application following any such change to such JaiWeb Application will be deemed acceptance of any change to this Agreement orthe Jai Web Application.