Telmediq End User License Agreement (EULA) and Software as a Service (SaaS) Subscription Agreement

Telmediq Systems, Ltd. (d/b/a "Telmediq" or "SmartPager")

Document Version 1.3 – January 18, 2019
 
IMPORTANT: READ CAREFULLY: This Telmediq End User License Agreement and Software as a Service (SaaS) Subscription ("Agreement") is a legal agreement between You and Telmediq Systems, Ltd. for the materials accompanying this Agreement, which may include computer software and hosted software services, printed materials, and "on line" or electronic documentation and resource files, project and solution files for Software.
 

WARNING: NOT FOR MEDICAL DIAGNOSTIC PURPOSES

Telmediq allows for the transmission of audio and image media files, voice to text transcription, as well as text messages. In no way are these files or messages intended to be shared or read for the purposes of medical diagnosis. This solution is not approved by governing bodies for such use in North America.
 

WARNING: NO EMERGENCY OR 911 SERVICE:

While Telmediq has done everything in our power to ensure reliable message delivery, you acknowledge that software, mobile devices, and the networks and devices they rely on are sometimes subject to failure and outages. Therefore, you should not use this service where personal injury, loss of life, property damage, or financial loss is possible to you or your customers without taking appropriate precautions such as having a failback system or protocol.
 
You acknowledge and understand that Telmediq does NOT currently allow you to access any emergency services (911). You should always have an alternative means of accessing emergency services. Please inform others who use your Telmediq application and devices used to access Telmediq that they must access these numbers through a traditional landline or mobile phone. Telmediq is not intended to replace your primary phone service, such as traditional landline or mobile phone.
 
BY INSTALLING, DOWNLOADING, COPYING OR OTHERWISE USING THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, DOWNLOAD, COPY OR USE THE PRODUCT.
 

The Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Telmediq or its suppliers own the title, copyright and other intellectual property rights in the Product. The Product is licensed, not sold.

  1. DEFINITIONS.

    1. "API" or "Application Programming Interface"

      means a publicly accessible interface defining the ways by which an application program may request services from libraries and/or software.
    2. "Confidential Information"

      is any information marked as confidential. Confidential Information does not include information:(a) which is publicly known; (b) which is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or (c) which is developed independently by the other party without reliance on any of the discloser’s Confidential Information.
    3. "Derived Works"

      means works based upon or using the Product.
    4. "Product"

      means the Software licensed under this Agreement.
    5. "Software"

      means mobile device software, associated media, printed materials, and "on line" or electronic documentation provided under this Agreement.
    6. "SaaS" or "Software as a Service"

      means a model of software deployment whereby a provider licenses an application to customers for use as a service on demand.
    7. "Subscription"

      means paid access to the Telmediq Critical Messaging SaaS service.
    8. "Updates"

      means technical support, new version or new release of the Product and/or supplements to the Software and/or related information.
    9. "You" and "Your"

      mean the purchaser, either an individual or a single entity.
  2. GRANT OF LICENCE AND SUBSCRIPTION AGREEMENT

    Telmediq grants You the rights described in this Agreement provided that You comply with all the terms and conditions of this Agreement:
    1. General Software License Grant and Subscription Agreement.
      Telmediq grants use of the Product and service according to one of the license and subscription types below. All software licenses and subscriptions are nonexclusive and non-transferable.
      1. Evaluation License and Temporary Subscription License.
        Evaluation and Temporary licenses are non-exclusive evaluation licenses and temporary subscription agreements to use the Product for evaluation purposes only. With an evaluation license and temporary subscription license the Product is fully functional.
      2. Individual Use Licence and Subscription.
        An individual user license allows a single user to install the Telmediq software on their smartphone, and to self-register for the Telmediq hosted messaging service from the mobile device. Both the mobile device software and the Telmediq messaging service are available to the Individual for the duration of the subscription.
      3. Team or Enterprise License and SaaS Subscription.
        A Team or Enterprise License and Subscription allows an organization to install the Telmediq software on their employees’ smartphone devices, and to register each individual user for Telmediq cloud-based messaging service. Users, messages, and data are all managed from the Enterprise Web Console. The organization is permitted an unlimited number of console logins with the Team or Enterprise License. Both the mobile device software and the Telmediq messaging service are available to the organization for the duration of the subscription.
    2. Documentation.
      You may make any number of copies of the electronic and other documentation provided with the Product or downloaded from the Telmediq website, provided that all copies must be used only for internal purposes and may not be republished or distributed externally.
    3. Disassembly.
      You may not reverse engineer, decompile, disassemble or in any other way try to gain access to information regarding the construction of the Software.
    4. Transfer.
      You may not rent, lease, sub-license, sell, assign, transfer or pledge the Product or this Agreement, on a temporary or permanent basis, without prior written consent from Telmediq.
    5. Reservation of Rights.
      Telmediq reserves all rights not expressly granted herein.
    6. For Valley Presbyterian Hospital Users.
      You further acknowledge and agree that your use of Telmediq must comply with all applicable Hospital policies, including the Timekeeping Policy and the Cell Phone Eligibility and Reimbursement Policy. You also understand and agree that under Hospital policy, if you are a non-exempt employee, you must record and report all time worked, including all time that you spend using Telmediq or any other work-related application.
  3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

    1. Derived Works and Redistribution
      1. The Product may not be distributed in any form that allows it to be reused by any application other than Your derived work.
      2. The Product may not be included as part of a SDK.
      3. The Product may not be used to develop Derived Works that offer similar or competing functionality as the Product, or expose features of the Product through an API for use by an unlicensed third party.
      4. Telmediq is not obligated to provide support for works derived from the Product.
      5. Works derived from the Product may not be called "Telmediq" or "SmartPager", nor may "Telmediq" or "SmartPager" appear in their name, without prior written permission from Telmediq.
      6. The name "Telmediq" must not be used to endorse or promote products derived from the Product without prior written permission. For written permission, please contact sales@telmediq.com.
    2. Rental.
      You may not rent, lease, or lend the Product without express written permission from Telmediq.
    3. Termination.
      Without prejudice to any other rights, Telmediq may terminate this Agreement if You fail to comply with the terms and conditions of this Agreement. In such event, You must destroy all copies of the Product, including but not limited to backups and all component parts.
    4. Survival.
      Unless by its nature a provision cannot survive this Agreement, the provisions of this Agreement shall survive the expiration or any termination of this Agreement.
    5. Consideration.
      For the rights and license granted in this Agreement, You will pay Telmediq the currently published price available at telmediq.com or another mutually agreed upon amount to appear on a valid invoice.
    6. Term.
      The term of this Agreement shall continue perpetually from the date of purchase unless terminated according to Section 3.3.
    7. Consent to Use of Data.
      You agree that Telmediq and its affiliates may collect and use technical information, excluding any Confidential Information, gathered as part of the Product support services provided to You. Telmediq may use this information solely to improve our products or to provide customized services or technologies to You. Telmediq may disclose this information, excluding any Confidential Information, to others but not in a form that personally identifies You.
  4. SOFTWARE MAINTENANCE, UPDATES AND DISCONTINUATION.

    1. Subscription:
      A Subscription entitles the purchaser to Updates of the Product and access to Product fixes for the duration that the subscription fees are being paid.
    2. Updates:
      Telmediq may, in its sole discretion, provide technical support and/or Updates to You hereunder.
    3. Technical Support:
      Technical Support is provided with the following conditions:
      1. Technical support is provided only through our toll free number, or via an online form submission on our website.
      2. Telmediq does not guarantee that any fix will be provided in any given time period. Any estimates provided are estimates only and are not binding or enforceable.
      3. Telmediq will typically provide support for the Product throughout the subscription period whether the Product has been discontinued or not. However, Telmediq reserves the right to cancel support, whether provided for free or Enhanced Support for a fee, at any time and for any reason.
      4. Telmediq shall use reasonable efforts to solve problems identified by You; however, Telmediq does not warrant that it will solve any particular problem in a given timescale, or at all.
    4. Discontinuation of Product and Service:
      Telmediq reserves the right to discontinue the Product at any time, whether it is offered individually or as a part of a product suite.
      1. If for any reason, including insolvency or dissolution, Telmediq is unable to remain in business and continue to offer its products either under the Telmediq name or another name they will provide the following remedy to each subscriber:
        1. a) Telmediq will make a reasonable effort to notify You at least thirty (30) days prior to close of business.
  5. SOFTWARE DELIVERY.

    The Product and any associated materials are provided in electronic format only.
  6. INTELLECTUAL PROPERTY RIGHTS.

    All title and intellectual property rights in and to the Product (including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the Product and any copies of the Product that You are expressly permitted to make herein) are owned by Telmediq or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Product are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content.
  7. NONDISCLOSURE.

    Both Parties recognize that the other Party may obtain proprietary and/or Confidential Information in the course of their business. Each Party agrees to protect each other’s Confidential Information as follows:
    1. Time and Method.
      Both during the term of this Agreement and for a period of 5 years after termination or expiration of this Agreement to hold each other’s Confidential Information in confidence and to protect the disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as they use to protect their own confidential information of a like nature.
    2. Permitted Disclosure to Employees.
      Each Party agrees that it will only disclose Confidential Information to its responsible employees, contractors, professional advisors and similarly situated individuals who have a bona fide need to know and who are bound by agreement or by law to keep such information confidential.
    3. Other Permitted Disclosures.
      Each Party may disclose Confidential Information (i) as authorized by the other Party in writing or (ii) to the extent required by applicable law, court, or government agency, provided that the Party required to disclose Confidential Information promptly notifies the other Party and cooperates with any efforts by the other Party, at the other Party’s expense, to limit such disclosure by means of seeking a protective order or requesting confidential treatment. Other than those expressly allowed under this Section 10 of the Agreement, no other disclosures of Confidential Information are permitted.
  8. LIMITED WARRANTY AND DISCLAIMER.

    1. TELMEDIQ PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR EVALUATION VERSIONS OF THE PRODUCT. THE EVALUATION VERSION OF THE PRODUCT IS PROVIDED "AS IS".
    2. TELMEDIQ AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TELMEDIQ DOES NOT WARRANT THAT THE PRODUCT OR SERVICE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. THE PRODUCT IS NOT DESIGNED, INTENDED OR LICENSED OR SUBSCRIBED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. TELMEDIQ SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
    3. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TELMEDIQ, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
    4. LIMITATION OF LIABILITY. Liability shall be limited as follows:
    5. NEITHER TELMEDIQ NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, INJURY, LOSS OF LIFE, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE PRODUCT AND/OR SERVICE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF TELMEDIQ OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
    6. TELMEDIQ'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES, FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT CAUSED SUCH DAMAGE.
    7. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT.
  9. INDEMNITY.

    You agree to hold Telmediq and its affiliates and subsidiaries harmless against, and at Your expense handle and defend, any claim and defend any third party suit brought against You based upon an allegation that any software developed by You and included in Derived Works produced using the Product constitutes an infringement of any international patent, or any copyright or other proprietary or intellectual property right. You shall pay all damages and costs awarded in such suit.
  10. TAXES.

    The license fees and any other amounts payable pursuant to the terms and conditions herein are exclusive of all national, state, regional, local municipal or other taxes and fees including, but not limited to, excise, sales, use, property, ad valorem, intangibles, goods and services and value added taxes, customers duties and registration fees, now in force or enacted in the future, and all such taxes and fees, except taxes based on Telmediq’s net worth, capital or net income, shall be paid directly by You, or if paid by Telmediq, You will reimburse Telmediq.
  11. NO WAIVER.

    No action taken by either party pursuant to this Agreement, and no waiver by either party, whether express or implied, of any provision or right in this Agreement or any breach thereof, and no failure of either party to exercise or enforce any of its rights under this Agreement, will constitute a continuing waiver with respect to such provision or right or as a breach or waiver or any other provision or right, whether or not similar.
  12. SEVERABILITY.

    If any covenant or provision of the Agreement is determined to be void or unenforceable in whole or part, then such void or unenforceable covenant or provision shall be deleted from this Agreement and shall not effect or impair the enforceability or validity of any other covenant or provision of this Agreement or any part thereof.
  13. GOVERNING LAW.

    1. Arbitration:
      All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. Arbitration shall be held in Victoria, BC, Canada and shall be held in English.
    2. Injunctive relief:
      As an alternative or supplement to arbitration Telmediq, at its option, may obtain in any court of competent jurisdiction any injunctive relief, including temporary restraining orders and preliminary injunctions, against conduct or threatened conduct for which no adequate remedy at law may be available or which may cause Telmediq irreparable harm.
    3. Choice of Law:
      This Agreement shall be governed by the laws of British Columbia, Canada. The United National Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
  14. FURTHER INSTRUMENTS.

    Except as otherwise expressly provided in this Agreement, each party shall furnish to the other (and shall deliver and cause to be executed, acknowledged and delivered to the other) any further instruments, which such other party may reasonably require or deem necessary from time to time to evidence, establish, protect, enforce, defend or secure to such other party any or all of its rights hereunder or to more effectuate or carry out the purposes, provisions or intent of this Agreement.
  15. CAPTIONS.

    All indexes, titles, subject headings, section titles, and similar items are provide for the purpose of reference and convenience and are not intended to be inclusive, definitive, or to affect the meaning or scope of this Agreement.
  16. UPDATES.

    Telmediq may make updates and changes to this license Agreement from time to time. Such changes will be posted on our website at http://www.telmediq.com. You are bound by the terms of the Agreement as it is posted or distributed at the most recent time you install the Software or Updates. If You do not wish to be bound by the terms of this license Agreement You should not install any Updates or additional Software.
  17. PUBLICITY.

    You grant Telmediq the right to use Your name and logo in press releases, brochures, case studies, marketing materials, the Telmediq website and similar materials indicating that You are a customer of Telmediq.
  18. ENTIRE AGREEMENT.

    This Agreement is the entire agreement between You and Telmediq relating to the license of the Product and the support services (if any) You purchase hereunder and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this Agreement. This Agreement includes and encompasses materials referenced herein from the telmediq.com website. To the extent the terms of any Telmediq policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control.