This SmartLinkO2® End User License Agreement ("Agreement") is between you (both the individual using the Services (as defined below) and any single legal entity on behalf of which such individual is acting) ("You" or "Your") and Medical Depot, Inc. d/b/a Drive DeVilbiss Healthcare ("Drive"). This Agreement governs your use of the Drive website application(s) (available at https://www.smartlinko2.com/) (the "Website"), including all related services, systems, content, and documentation available at the Website (collectively, the "Services"). Drive last updated this Agreement on June 6, 2022. This Agreement is effective between You and Drive as of the date You click to accept this Agreement.
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE "I ACCEPT" BUTTON, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND ACCEPT THIS AGREEMENT OR AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE "I DO NOT ACCEPT" BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE REGISTERED TO USE OR ACCESS THE SERVICES.
1. LICENSE GRANT
1.1 Limited License. Subject to the terms and conditions of this Agreement, Drive hereby grants to You a limited, revocable, non-exclusive, non-transferable license (without the right to sublicense) to access and use the Services solely for Your own internal business operations.
1.2 Restrictions. You will not, directly or indirectly: (i) use the Services beyond the scope of the license granted under Section 1.1; (ii) modify, copy, distribute, re-publish, transmit, display, perform, reproduce, publish, reuse, resell, license, create derivative works from, transfer, reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of, or sell the Services; (iii) use the Services in violation of any law, regulation, or rule; (iv) access the Services using a third-party's account or registration without the express consent of the account holder; (v) attempt to gain unauthorized access to other computer systems from or through the Services; (vi) interfere with another person's use and enjoyment of the Services or another entity's use and enjoyment of the Services; (vii) upload or transmit viruses or other harmful, disruptive or destructive files to the Services; or (viii) disrupt, interfere with, or otherwise harm or violate the security of the Services, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Services (including those of our resellers).
1.3 Updates; No Support. Drive may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, new versions, bug fixes, patches, other error corrections, and/or new features (collectively, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Drive has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement. Drive has no obligation to provide support, maintenance, upgrades, modifications or new releases under this Agreement.
1.4 Your Account; Ownership.
(a) Registration of Your Account. Use of the Services may require that You register and create an account ("Account"). To register and create an Account, You must select an Account designation and password and provide certain personal information. We may permit or require You to provide additional information in order to use the Application, which may consist of: (i) Your name, job title, organization, date of birth, phone number, mailing address, and/or other identity or contact information ("Account Information"). In consideration of the use of the Services, You agree to provide true, accurate, current and complete information about Yourself as prompted by the registration form (if applicable). If You provide (or Drive has reasonable grounds to suspect that) any such information that is untrue, inaccurate, not current or incomplete, Drive has the right to refuse any and all current or future use of the Services.
(b) Confidentiality of Account Information. You are responsible for maintaining the confidentiality and security of Your Account Information and any content you interact with on the Services, and You are fully responsible for all activities that occur under Your password or Account, and for any other actions taken in connection with the Account or password. You agree to (a) immediately notify Drive of any known or suspected unauthorized use(s) of Your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Your password; and (b) ensure that You exit from Your Account at the end of each session. Drive will not be liable for any injury, loss or damage of any kind arising from or relating to Your failure to comply with (a) and (b) or for any acts or omissions by You or someone else using Your Account and/or password.
2. PRIVACY POLICY. All information we collect through or in connection with this Services is subject to our privacy policy available at Drive DeVilbiss Healthcare Privacy Policy (the "Privacy Policy").
3. OWNERSHIP. Drive will retain all right, title and interest in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the Services and any derivative works thereof, subject only to the limited licenses set forth in this Agreement. You do not acquire any other rights, express or implied, in the Services other than those rights expressly granted under this Agreement.
4. DISCLAIMER OF WARRANTIES.
DRIVE MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTY. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, DRIVE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. DRIVE DOES NOT WARRANT THAT THE SERVICES WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY DRIVE OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
5. TERMINATION.
This Agreement is effective until terminated. Drive may terminate this Agreement at any time upon Your breach of any of the provisions hereof. You may terminate this agreement by ceasing use of the Services or requesting that an administrator at your employer delete your Account. Except for the license granted herein and as expressly provided herein, the terms of this Agreement will survive termination.
6. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DRIVE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES OR DATA FOR ANY AMOUNT EXCEEDING ONE HUNDRED DOLLARS ($100.00), WHETHER ARISING FROM: PERSONAL INJURY, PROPERTY DAMAGE, DIRECT DAMAGES, INDIRECT DAMAGES, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR DRIVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. INDEMNIFICATION. You will indemnify and hold Drive, its vendors, and their subsidiaries, affiliates, agents, officers, directors, or employees harmless from any claim, demand, loss, cost, or damage, including reasonable attorneys' fees, made by anyone in connection with Your use of the Services, Your violation of this Agreement, and any other acts or omissions relating to the Services.
8. FEEDBACK. Drive encourages You to provide suggestions, requests, recommendations and other feedback concerning the functionality of the Service (collectively, "Feedback"). You hereby grants Drive a perpetual, irrevocable, sublicensable (through multiple tiers of sublicensee), transferable, non-exclusive, fully-paid and royalty-free, worldwide license to utilize, use, reproduce, distribute, modify and prepare derivative works of any Feedback You provide to Drive, and Drive may use such Feedback at its discretion without your consent.
9. GENERAL TERMS
9.1 Dispute Resolution; Choice of Law; Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the State of New York without giving effect to any choice of law rule. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute may be tried solely in a state or federal court having jurisdiction over New York City, New York and the parties hereby irrevocably consent to the jurisdiction and venue of such courts.
9.2 Severability. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect.
9.3 Force Majeure. Drive will not be responsible or liable to You, or deemed in default or breach of this Agreement, by reason of any failure or delay in the performance of its obligations in this Agreement where such failure or delay is due to strikes, labor disputes, telecommunications failure or other interruption, power outage, internet outage, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, or any other circumstances or causes beyond Drive’s reasonable control.
9.4 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Drive. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
9.5 Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls"). Without limiting the generality of the foregoing, You will not, and You will require Your representatives not to, export, direct or transfer the Services, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
9.6 Entire Agreement; Waiver; Modification. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure or delay in exercising any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege in this Agreement preclude any other exercise thereof or the exercise of any other right, remedy, power, or privilege. No other act, document, usage or custom will be deemed to amend or modify this Agreement.