AS Software

AS IMAGE SHARING SERVICES AGREEMENT

PLEASE READ THIS AS IMAGE SHARING SOFTWARE SERVICES AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU, THE USER (“USER”, “YOU”, “YOUR”) AND AS SOFTWARE LLC (“AS SOFTWARE”). THIS AGREEMENT WILL BECOME EFFECTIVE ON THE DATE YOU ATTEMPT TO ACCESS OR USE THE AS IMAGE SHARING SOFTWARE (“EFFECTIVE DATE”). BY ACCESSING OR USING THE AS IMAGE SHARING SOFTWARE, YOU ARE ACCEPTING THE TERMS OF THIS AGREEMENT ON BEHALF OF YOURSELF AS AN INDIVIDUAL USER, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND LEGAL CAPACITY TO ENTER INTO THESE TERMS. YOU MAY NOT ACCESS OR USE THE AS IMAGE SHARING SOFTWARE OR ACCEPT THE TERMS OF THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD OR OTHERWISE HAVE THE LEGAL CAPACITY TO CONSENT TO USE THE AS IMAGE SHARING SOFTWARE AND, IF APPLICABLE, RECEIVE THE CLINICAL SERVICES BEING RENDERED BY YOUR PROVIDER THROUGH AS SOFTWARE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE AS IMAGE SHARING SOFTWARE.

  1. DEFINITIONS. The following terms have the meanings set forth below, unless otherwise indicated:
  1. “Affiliate” means an entity that controls, is controlled by, or is under common control with, another entity, where “control” refers to ownership of more than 50% of the outstanding voting securities of an entity.
  2. “AS Image Sharing Software” means the licensed web-based software provided by or on behalf of AS Software to User under the name “Image Sharing by AS Software”, on a subscription basis, hosted in a multi-tenant cloud based environment, pursuant to, and as identified on, an order form between User’s applicable Provider and AS Software.
  3. “User Data” means all data, content, images, organization logos, and materials uploaded or transmitted by User or Provider to or in connection to the AS Image Sharing Software.
  4. “Documentation” means the then-current technical specifications for the AS Image Sharing Software contained in the User and system documentation made generally available by AS Software to its Users.
  5. “Intellectual Property Rights” means registered and unregistered rights in intellectual or industrial property recognized in any jurisdiction in the world, including rights in: (i) patents and patent rights, rights of priority, works of authorship, copyrights, mask work rights, moral rights, trade secrets, know-how, and proprietary information; (ii) trademarks, service marks, designs, and other designations of source; and in each case of (i) and (ii), all extensions and renewals thereof, and all applications for registration in connection therewith.
  6. “Personal Information” means any User Data that by itself or in combination with other information identifies or is capable of identifying a specific individual.
  7. “Privacy Laws” means laws that govern the collection, use, processing, privacy, security, protection, loss, disclosure, storage, transmission, transfer, breach notification, or unauthorized access of Personal Information.
  8. “Provider” means the User’s applicable healthcare provider that has paid for User’s access and use of the AS Image Sharing Software under the applicable agreement, order form, and/or statement of work, executed with AS Software.
  1. LICENSE AND RIGHTS GRANTS. The license and use rights in the AS Image Sharing Software granted hereunder are subject to compliance by User with this Agreement, and may be suspended or terminated as set forth herein.
  1. Access to the AS Image Sharing Software. Subject to Provider’s payment of the fees set forth in the applicable order form executed by AS Software, AS Software will provide User with access to the AS Image Sharing Software. On or as soon as reasonably practicable after the applicable order forms Effective Date, AS Software will provide to Provider the necessary passwords, security protocols and policies and network links or connections and other access protocols necessary to allow User to access the AS Image Sharing Software in accordance with this Agreement and the applicable Documentation. Provider and User will use commercially reasonable efforts to safeguard, and ensure all User’s safeguards, their access protocols and prevent unauthorized access to, or use of, the AS Image Sharing Software, and notify AS Software promptly of any such unauthorized use known to Provider or User.
  2. Documentation.  AS Software grants User, during the applicable license term, a limited, non-exclusive, non-transferable right and license (without the right to grant or authorize sublicenses) to use the Documentation provided by AS Software solely in connection with User’s authorized use of the AS Image Sharing Software. User may reproduce the Documentation as reasonably necessary to support such authorized use, provided such copies include all AS Software trademarks and proprietary rights notices present on the Documentation as made available by AS Software.
  3. AS Image Sharing Software. AS Software grants User a limited, non-exclusive, non-transferable, non-sublicensable license, during the AS Image Sharing Software subscription license term identified on the applicable order form between Provider and AS Software, to access and use the AS Image Sharing Software solely for internal non-diagnostic image sharing purposes between Provider and User, and in accordance with the Documentation and the Agreement. Provider and Users will be required to create a temporary account to access any User Data shared through the AS Image Sharing Software, where additional terms may apply. User Data will be deleted from the AS Image Sharing Software servers ninety (90) days from the date of the applicable User Data upload to the AS Image Sharing Software servers.
  1. THIRD-PARTY LINKS. The AS Image Sharing Software may contain links to third-party websites and services (collectively, the “Third-Party Links”). Such Third-Party Links are not under the control of AS Software, and AS Software is not responsible for any Third-Party Links. AS Software provides access to these Third-Party Links only as a convenience to the User. AS Software does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. Users access and use of all Third-Party Links are at their own risk, and the User should apply a suitable level of caution and discretion in doing so. When the User clicks on any of the Third-Party Links, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. The User should make whatever investigation they feel necessary or appropriate before proceeding with any access, use, sharing, or distribution of User Data, in connection with such Third-Party Links.
  2. MODIFICATIONS; MAINTENANCE & SUPPORT.
  1. Modifications. User acknowledges that AS Software may continually develop, deliver, and provide to User on-going innovation to the AS Image Sharing Software in the form of new features, functionality, and efficiencies. Accordingly, AS Software reserves the right to modify the AS Image Sharing Software from time to time. In the event AS Software adds new features or functionality to the AS Image Sharing Software, AS Software may condition the implementation of such features or functionality on User’s acceptance of new or modified terms. The User may lose access to certain features and functionalities of the AS Image Sharing Software in the event they do not agree to the new or modified terms.
  2. Maintenance & Support. AS Software will not provide any support, maintenance, or service level guarantees to the User. Any such guarantees and obligations will be found in the applicable agreement between AS Software and the applicable Provider.
  1. PRICING, INVOICES, AND PAYMENTS.
  1. Pricing and Invoicing. The AS Image Sharing Software is paid for by the Provider of User, subject to a separate agreement between Provider and AS Software.
  2. Payments. In the event Provider does not comply with their payment obligations to AS Software, that allow the User access to the AS Image Sharing Software, AS Software may suspend performance, including User’s access to and use of the AS Image Sharing Software, until AS Software receives all past due amounts from Provider.
  1. RESTRICTIONS. User will not directly or indirectly, and will not permit Provider or any other person or entity, to: (i) use the AS Image Sharing Software in contravention of any applicable laws or government regulations, including, without limitation, applicable Privacy Laws or in violation of this Agreement; (ii) except and to the extent specifically permitted by applicable law, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to the object code, source code, or underlying ideas, methodologies, or algorithms of the AS Image Sharing Software; (iii) modify, adapt, translate, or create derivative works based on the AS Image Sharing Software; (iv) sublicense, rent, lease, distribute, publish, sell, resell, assign, or otherwise transfer its rights to use the AS Image Sharing Software, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (v) commercially exploit the AS Image Sharing Software; (vi) use the AS Image Sharing Software for any purpose other than their intended purposes; (vii) introduce any software into the AS Image Sharing Software; (viii) disclose passwords, usernames, or other account information to any third party; or (ix) access or use the AS Image Sharing Software for competitive analysis or to design, create, offer, or build a product or service that is competitive with the AS Image Sharing Software or that uses ideas, features, or functions similar to the AS Image Sharing Software.
  2. OWNERSHIP.
  1. General. Excluding any User Data, which includes all Intellectual Property Rights therein to any images, User acknowledges that all the Intellectual Property Rights in the AS Image Sharing Software, including any Documentation, and any part therein are owned by AS Software. AS Software reserves all rights not granted under this Agreement. There are no implied licenses granted under these terms.
  2. AS Image Sharing Software; Feedback. As between AS Software and User, all right, title, and interest in and to the AS Image Sharing Software, and all suggestions, ideas, and feedback proposed by User regarding the AS Image Sharing Software (collectively, “Feedback”), including all Intellectual Property Rights in all of the foregoing, belong to and are retained exclusively by AS Software or its suppliers, as applicable. User hereby assigns to AS Software all Feedback and all Intellectual Property Rights therein.
  3. User Data. As between AS Software and User, all right, title and interest in and to the User Data and all Intellectual Property Rights therein, belong to and are retained solely by User. User hereby grants to AS Software a limited, non-exclusive, royalty-free, worldwide license to (i) use, store, display, transmit, and reproduce the User Data as may be necessary for AS Software to provide the AS Image Sharing Software to User; and (ii) irrevocably and perpetually use the User Data in an de-identified, aggregated and anonymized form to: (a) improve the AS Image Sharing Software, Professional Services and AS Software-related products and services; (b) provide analytics and benchmarking services; (c) generate and disclose statistics regarding use of the AS Image Sharing Software to Third Parties in accordance with this Agreement; and (d) for general research and development purposes.
  4. User Personal Information. User acknowledges and agrees that as a part of AS Software’s provision of AS Image Sharing Software to User, AS Software will receive User Personal Information including the User’s date of birth, name, email, and patient image(s) from the applicable ultrasound imaging machine, and a password submitted by User through the account creation process. User hereby acknowledges and agrees that AS Software may use any of the above User Personal Information as necessary to provide the AS Image Sharing Software solution to User and Provider.
  1. WARRANTIES.
  1. Warranties by User. User represents and warrants that any User Data will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage AS Software’s systems or data; (e) otherwise violate the rights of a third party, including that of a third-party user; and (f) that it has the authority to provide the User Data, including Personal Information therein, to AS Software for processing as contemplated by this Agreement.
  2. Subscription Software. User acknowledges that factors such as changes by User to its Providers IT environment, and corrupted, incomplete and/or interrupted data received by AS Software from User, may have a material impact on the accuracy, reliability and/or timeliness of results, and AS Software shall not be responsible for any such factors. User shall be responsible for the legality, accuracy, and completeness of all User Data and for complying with reasonable instructions and/or specifications provided to User by AS Software.
  3. WARRANTY DISCLAIMER. AS SOFTWARE DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. AS SOFTWARE DOES NOT WARRANT THAT: (A) THE USE OF ANY PRODUCT OR DELIVERABLE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA UNLESS EXPRESSLY IDENTIFIED IN THE DOCUMENTATION; (B) THE AS IMAGE SHARING SOFTWARE OR DELIVERABLES OR ANY INFORMATION OBTAINED THROUGH THE AS IMAGE SHARING SOFTWARE  WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; OR (C)  THE AS IMAGE SHARING SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE AS IMAGE SHARING SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AS SOFTWARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH LIMITATIONS, DELAYS, OR PROBLEMS.
  4. NO LIABILITY FOR CONDUCT OF PROVIDERS. AS SOFTWARE DOES NOT ENDORSE, RECOMMEND OR ASSUME RESPONSIBILITY FOR ANY PARTICULAR PROVIDER, PRODUCT, TREATMENT, OR SERVICE. YOU UNDERSTAND THAT AS SOFTWARE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF PROVIDERS ON THE AS IMAGE SHARING SOFTWARE OR THE DATA UPLOADED OR OTHERWISE PROVIDED TO YOU THROUGH THE ASIMAGE SHARING SOFTWARE.  AS SOFTWARE MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER DATA PROVIDED OR OBTAINED THROUGH THE AS IMAGE SHARING SOFTWARE, INCLUDING BY ANY PROVIDER. AS SOFTWARE MAKES NO WARRANTY THAT PROVIDERS WILL PROVIDE ACCURATE INFORMATION. AS SOFTWARE IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU MAY OBTAIN THROUGH YOUR USE OF THE AS IMAGE SHARING SOFTWARE.  FURTHER, MALAMA DOES NOT GUARANTEE ANY PARTICULAR OUTCOME, INCLUDING ANY IMPROVEMENT IN YOUR HEALTH OR WELLBEING, BASED ON YOUR USE OF THE ASIMAGE SHARING SOFTWARE. IT IS YOUR PROVIDER’S RESPONSIBILITY TO ENSURE THAT HE/SHE OBTAINS ALL REQUIRED CONSENTS FROM YOU RELATING TO YOUR TREATMENT.
  5. NOT INTENDED AS MEDICAL ADVICE. YOU UNDERSTAND THAT AS SOFTWARE IS NOT A HEALTHCARE PROFESSIONAL AND AS SOFTWARE DOES NOT OFFER MEDICAL OR ANY PROFESSIONAL HEALTHCARE ADVICE OR DIAGNOSES OR ENGAGE IN THE PRACTICE OF MEDICINE OR PROVISION OF ANY PROFESSIONAL HEALTHCARE SERVICES OF ANY KIND. USER ACKNOWLEDGES THAT THE INFORMATION OBTAINED THROUGH THE AS IMAGE SHARING SOFTWARE, INCLUDING WITHOUT LIMITATION ANY INFORMATION OBTAINED THROUGH AS SOFTWARE, ITS EMPLOYEES OR CONTRACTORS TO PROVIDER OR USER, IS NOT INTENDED AS MEDICAL OR OTHER CLINICAL ADVICE OF ANY KIND NOR IS IT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE OR MEDICAL CONDITION. THE INFORMATION OBTAINED THROUGH THE AS IMAGE SHARING SOFTWARE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE INTERPRETED OR CONSTRUED IN ANY WAY AS A REPLACEMENT OR SUBSTITUTE FOR MEDICAL OR CLINICAL ADVICE. USER’S PATIENTS SHOULD NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE OR TREATMENT FROM THEIR HEALTHCARE PROVIDER DUE TO ANY INFORMATION OBTAINED THROUGH THE AS IMAGE SHARING SOFTWARE.. TO THE EXTENT YOU USE THE AS IMAGE SHARING SOFTWARE TO FACILITATE THE EXCHANGE OF HEALTH INFORMATION BETWEEN YOU AND YOUR PROVIDER, YOU ACKNOWLEDGE THAT AS SOFTWARE IS SOLELY ACTING AS THE PROVIDER OF SOFTWARE TO FACILITATE THE EXCHANGE OF SUCH INFORMATION AND AS SOFTWARE IS NOT ACTING AS A CLINICAL PROVIDER IN ANY CAPACITY. AS SOFTWARE’S SERVICES ARE SOLELY INTENDED TO SUPPORT THE RELATIONSHIP BETWEEN YOU AND YOUR PROVIDER(S), NOT REPLACE IT. THE USER IS SOLELY RESPONSIBLE FOR SEEKING AND OBTAINING PROPER TREATMENT FOR SUCH USER’S CONDITIONS. ALWAYS SEEK THE ADVICE OF YOUR HEALTHCARE PROVIDERS WITH ANY QUESTIONS REGARDING YOUR MEDICAL CONDITION. YOUR PROVIDER, AND NOT AS SOFTWARE, IS RESPONSIBLE FOR THE TREATMENT THAT YOUR HEALTHCARE PROVIDER PROVIDES TO YOU, INCLUDING ANY COMMUNICATIONS BETWEEN YOU AND YOUR PROVIDER THAT MAY OCCUR THROUGH THE AS IMAGE SHARING SOFTWARE.
  6. NOT A MEDICAL RECORDS REPOSITORY.  YOU UNDERSTAND THAT THE AS IMAGE SHARING SOFTWARE IS NOT, AND IS NOT INTENDED TO BE USED AS, A MEDICAL RECORDS REPOSITORY. YOUR PROVIDER IS SOLELY RESPONSIBLE FOR MEETING THE MEDICAL RECORDS RETENTION REQUIREMENTS THAT ARE APPLICABLE TO YOU. YOU AGREE THAT YOU WILL NOT USE, OR ATTEMPT TO USE, THE AS IMAGE SHARING SOFTWARE FOR ANY MEDICAL RECORDS RETENTION OR OTHER SIMILAR PURPOSE.
  7. NOT FOR EMERGENCIES. THE ASIMAGE SHARING SOFTWARE, INCLUDING ANY COMMUNICATIONS THAT MAY OCCUR BETWEEN YOU AND YOUR PROVIDER THROUGH THE AS SOFTWARE, ARE NOT FOR EMERGENCIES.  IF YOU BELIEVE YOU HAVE AN EMERGENCY, CALL 911 IMMEDIATELY.  

  1. LIMITATION OF LIABILITY.
  1. LIABILITY CAP.  IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF AS SOFTWARE AND ITS AFFILIATES AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED $100. THE EXISTENCE OF MULTIPLE CLAIMS UNDER THIS AGREEMENT WILL NOT ENLARGE SUCH LIMIT.
  2. EXCLUSION OF CERTAIN DAMAGES.  IN NO EVENT WILL AS SOFTWARE BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES FOR BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE, LOST DATA, LOST IMAGES, OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF AS SOFTWARE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AS SOFTWARE BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  3. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
  1. TERM AND TERMINATION.
  1. Term. This Agreement shall become effective upon the Effective Date, and shall continue to be in full force and effect until expiration or termination of this Agreement, or until AS Software terminates User’s access to the AS Image Sharing Software (the “Term”).
  2. Termination for Convenience. AS Software reserves the right to terminate this Agreement and/or any applicable Provider order form at any time for no reason or any reason upon written notice to User, and Provider if applicable.
  3. Effect of Termination. The following sections will survive expiration or termination of this Agreement: 5, 6, 7, 8, 9, 10.3, and 11 through 19.   The expiration or termination of this Agreement does not affect any rights which accrued before the date of expiration or termination.
  1. INDEPENDENT CONTRACTORS. The parties are independent contractors and will so represent themselves in all regards.
  2. FORCE MAJEURE. Neither User or AS Software will be responsible for any failure to perform due to causes beyond its reasonable control, including acts of God, war, acts of terrorism (whether actual or threatened), riot or civil unrest, failure of electrical, Internet, co-location or telecommunications service, non-AS Software applications, denial of service or similar attacks, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, epidemics, quarantines, or energy crises.
  3. ASSIGNMENT. User may not transfer or assign this Agreement, in whole or in part, without AS Software’s prior written consent. AS Software may freely assign its rights and obligations under this Agreement assign this Agreement to a third-party without the consent of User. Any assignment in violation of this Section will be void and of no effect. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
  4. COMPLIANCE WITH LAWS.
  1. By User. User will comply with all laws and regulations that apply to its use of the AS Image Sharing Software, including applicable Privacy Laws. User is responsible for implementing and maintaining privacy protections and security measures for components that User provides or controls, and for determining whether the AS Image Sharing Software provided to User is appropriate for storage and processing of information subject to any specific law or regulation.
  1. DATA PROTECTION AND SECURITY; HIPAA.
  1. Access by Your Provider. If you were referred to AS Software by your Provider or if you choose to use the AS Image Sharing Software together with your Provider, you may share User Data with such Provider through the AS Image Sharing Software. Your Provider will have access and be able to view any of the User Data that you grant sharing access to. AS Software is in no way responsible for any processing of Your User Data conducted by Providers. Further, you acknowledge and agree that AS Software is not responsible for any error made by your Provider in uploading, entering, submitting, or otherwise providing Data to you to or through the AS Image Sharing Software.    
  2. AS Software will process Personal Information in accordance with the terms of this Agreement,  in accordance with any agreement or order form between User’s Provider and AS Software, and as otherwise permitted by applicable law. The parties agree that the User’s complete and final instructions are set out in the foregoing documents. Processing outside the scope of these instructions (if any) will require prior written agreement between User, Provider (if applicable), and AS Software with additional instructions for processing.
  3. User is responsible for its secure access to, and use of, the AS Image Sharing Software, including securing its account authentication credentials, protecting the security of Personal Information when in transit to and from the AS Image Sharing Software, and taking any appropriate steps to securely encrypt or backup any Personal Information uploaded to the AS Software. AS Software is not obligated to back up any User Data hosted in the AS Image Sharing Software.  User is solely responsible for creating backup copies of any User Data at User’s sole cost and expense. User agrees that any use of Image Sharing contrary to or in violation of this Agreement constitutes unauthorized and improper use of the AS Image Sharing Software.
  4. User must notify AS Software promptly about any possible misuse of its accounts or authentication credentials or any Security Incident related to the AS Image Sharing Software.
  5. User shall be exclusively responsible for the supervision, management and control of its use the operating environment, including, but not limited to: (i) assuring proper audit controls and operating methods; (ii) establishing adequate back-up plans in the event of a software or hardware malfunction, including restart and recovery procedures; (iii) implementing sufficient procedures and checkpoints to satisfy its requirements for security and accuracy of input and output; and (iv) maintaining the proper operating environment. User shall be responsible for selecting, obtaining, and maintaining any equipment and ancillary services, including network connections, virtual private network (VPN) or the like, as needed and specified in the hardware requirements document provided by AS Software, needed to connect to, access on demand, or otherwise use the AS Image Sharing Software, (collectively “Equipment”). User shall be responsible for ensuring that the Equipment is compatible with the AS Image Sharing Software and complies with the Documentation. User shall be responsible for the security and use of the Equipment.
  6. Business Associate Agreement. To the extent Your Provider is subject to HIPAA, the parties acknowledge and agree that AS Software may receive, access or otherwise process protected health information, as such term is defined in HIPAA, for or on behalf of User as directed by the Provider in rendering the AS Image Sharing Software in accordance with the business associate agreement (“BAA”) as executed between AS Software and Provider.
  7. Use of Aggregate or Anonymized Data. Notwithstanding anything else in this Agreement or otherwise, AS Software may, in accordance with applicable Privacy Laws, monitor use of the AS Image Sharing Software and use the data generated by such use in the aggregate in the pursuit of its legitimate commercial interests, including for analysis, benchmarking, analytics, and marketing. User agrees that AS Software may collect, use, and disclose such information that does not incorporate User Data or Personal Information, or otherwise identify User.
  1. NOTICES. Either party may give notice by written communication, sent by first-class postage prepaid mail, electronic mail, or nationally recognized overnight delivery service, to the other party’s address as specified in the User’s account, or with respect to AS Software, at 560 Sylvan Ave Englewood Cliffs, NJ 07632. In addition, AS Software may provide notices related to the AS Image Sharing Software to the email address on record with AS Software. Either party may from time to time change its address for notices under this Section by giving the other party notice of the change in accordance with this Section.
  2. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of law principles. The parties hereby consent to the personal and exclusive jurisdiction of the federal and state courts located in New York County, New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
  3. EXPORT CONTROLS. User agrees to comply with applicable export and re-export laws, regulations and requirements. User further certifies that it will not export or re-export any software that may be subject to such laws, regulations and requirements, to any location, or to any end-user, or for any end-use, without first obtaining any export license, permit, or other approval that may be required. Without limiting the foregoing, User specifically agrees that it will not export or re-export any software subject to export and re-export laws to (1) any Group E country listed in SUPPLEMENT NO. 1 TO PART 740 – COUNTRY GROUPS and the Crimea Region of Ukraine or (2) any company, entity or person listed as a party of concern found here http://2016.export.gov/ecr/eg_main_023148.asp
  4. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes any other agreements, discussions, proposals, representations or warranties, written or oral, with respect to the subject matter hereof. Each party acknowledges that it has participated in negotiating this Agreement, and agrees that contractual ambiguities are not to be construed in favor of or against any party based on its role in drafting this Agreement. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.” Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party. Failure or delay by either party in exercising any right or remedy will not constitute a waiver. If any provision of this Agreement will be declared invalid, the entire Agreement will not fail on its account, and that provision will be severed, with the balance of this Agreement continuing in full force and effect.

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