END USER LICENSE AGREEMENT
This End User License Agreement (this EULA”) is between Hike Medical, Co. (“Company”, us”, we or
our”) and the person or organization agreeing to this EULA (“User” or “you”). This EULA governs the use of our
web based platform (the “Platform”) and any related documentation provided by Company, as may be updated from
time to time (the “Documentation”).
BY CLICKING THE “I AGREE” BUTTON, OR BY ACCESSING, USING OR REGISTERING FOR
YOUR USE OF THE PLATFORM, YOU AGREE THAT YOU HAVE READ AND HEREBY AGREE TO
THE FOLLOWING TERMS FOR THE USE OF THE PLATFORM BELOW, AND ARE ACCESSING
THIS INFORMATION ONLY FOR THE PERMITTED PURPOSES AS DESCRIBED HEREIN, AND
WILL NOT USE THE INFORMATION FOR ANY OTHER PURPOSE, INCLUDING AN
ANTI-COMPETITIVE ONE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE
PLATFORM. YOU FURTHER AGREE THAT WE MAY COMMUNICATE WITH YOU BY
ELECTRONIC MAIL, TEXT MESSAGING, IN-APP MESSAGING, PUSH NOTIFICATION, VIDEO
CONFERENCING, TELEPHONE CALL OR OTHER COMMUNICATION SERVICE SUBJECT TO
YOUR RIGHT TO OPT OUT OF COMMERCIAL MARKETING MESSAGES.
We may change the terms of this Agreement from time to time by posting a notice on our website at
hikemedical.com or through our applications. Your continued use of the Platform shall constitute your consent to
any changes made. If you do not agree to the new terms, you should not use the Platform. We shall refer to you or
any user of the Platform as “you.”
1. LICENSE.
1.1. Installation and Use. Conditioned on Users continuing compliance with the terms and conditions herein,
Company grants you a non-exclusive, non-transferable, revocable, limited license to use the Platform and
the Documentation, in each case solely for your internal business purposes and in accordance with the
Documentation. The Platform is licensed, not sold. Company reserves all its rights not specifically
conveyed in this EULA.
1.2. Acceptable Use Policy. Except as expressly permitted by this EULA, to the maximum extent the
following restrictions are permitted by applicable law, User will not (and will not permit, assist, or
encourage others to): (i) disable, impair, change or work around any security measures or technical
limitations in the Platform; (ii) reverse engineer, decompile, disassemble, or discover all or any portion of
the Platform, including any source code or any underlying ideas, methods, processes or algorithms; (iii)
alter, modify, translate, enhance, or create derivative works of the Platform or Documentation or any
portions thereof; (iv) remove, alter, or obscure any legends, product identification, copyright, trademark,
or other intellectual property or legal notices or markings on or in the Platform or Documentation; (v)
make copies of the Platform or Documentation; (vi) publish, publicly display, republish, upload, post,
transmit, mirror, or distribute the Platform or Documentation, or make the Platform or Documentation
available on a file-sharing service or over any network where it can be downloaded by multiple users;
(vii) transfer, rent, lease, lend, sell, assign, market, or sublicense the Platform or Documentation; (viii)
make the Platform or any functionality of the Platform available to any person on any equipment other
than the equipment on which the Platform is installed, regardless of the means by which the Platform is
made available, including, but not limited to, as a hosted service or software-as-a-service, or through any
application services provider, service bureau, or time-share; (ix) use the Platform or Documentation in
any way not specifically authorized in this EULA; (x) use the Platform or Documentation in violation of
any law, regulation, governmental order or contractual obligation between you and Company or between
you and a third party; (xi) perform or disclose to any third party the results of any Platform performance
benchmarks or test results without Company’s prior written consent; or (xii) separate components of the
Platform for independent use or for use with other software or merge the Platform into another product.
User will be liable to Company for any act or omission of any Representative (as defined below) or other
user of Users copy of the Platform or Documentation (or, in either case, any copy thereof) to the same
extent that it would have been had it committed such act or omission. User will promptly notify
Company of any actual or suspected unauthorized use of the Platform or Documentation.
1.3. Compliance Measures. Company may deliver to User or include in or with the Platform a mechanism
that verifies that the Platform is properly licensed (“Authentication Mechanism”), and that User is in
compliance with this EULA. User will always use the Platform in accordance with the Documentation,
including, if required, by maintaining an internet connection that enables Company to verify the validity
of the Authentication Mechanism. The Platform may stop functioning if the Platform is unable to
verify the validity of the Authentication Mechanism. Company may invalidate an Authentication
Mechanism and disable the use of the Platform without notice at any time.
2. DATA.
2.1. System and Data. In accordance with this EULA, you hereby authorize Company to use the Platform to
access the database connected to your business’ information management system (“Database”) and use
the data available within that database (“Data”) for its provision of services to you. As between you and
Company, you are responsible for and own all Data within the Database, subject to the license granted to
the Company pursuant to this Agreement and the Company’s license to the Platform, and Company does
not verify or endorse the Data you or others (such as your Authorized Service Providers) submit to the
Database or to Company.
2.2. Data-Related Representations and Warranties. YOU REPRESENT AND WARRANT THAT YOU
HAVE THE RIGHTS IN (INCLUDING THIRD PARTY INTELLECTUAL PROPERTY RIGHTS)
AND HAVE OBTAINED THE AUTHORIZATIONS NECESSARY FOR YOU TO USE THE
PLATFORM, UPLOAD, SHARE, AND STORE THE DATA, AND GRANT THE RIGHTS
CONTEMPLATED IN THIS EULA. YOU FURTHER REPRESENT AND WARRANT THAT YOUR
COLLECTION, USE, DISCLOSURE, OR STORAGE OF THE DATA IS COMPLIANT WITH
APPLICABLE LAWS (INCLUDING PRIVACY AND DATA PROTECTION LAWS) AND NOT IN
VIOLATION OF SUCH LAWS OR THIS EULA.
3. COMPANY’S RIGHT TO UPDATE OR REPLACE THE PLATFORM. At any time, Company at its sole
discretion may require you to update the Platform or install a replacement software program or one or more
additional software programs. Any such updates, replacements, or additions are “Platform” and are subject to
this EULA. Company is not obligated to update or maintain the Platform and at any time and for any reason
Company may change or stop providing support, maintenance, or other services for the Platform. When your
equipment is connected to the Internet, the Platform may periodically check for updates and automatically
download and install updates on the equipment without providing any additional notice or requiring any
additional consent from you. You hereby consent to receive these types of automatic updates. If you do not want
Platform updates, you must uninstall the Platform; otherwise, you may receive these updates automatically
when the equipment is connected to the Internet.
4. YOUR OBLIGATION TO PROTECT THE PLATFORM; FEEDBACK.
4.1. Protection. You will use at least the same degree of care that you use to protect your own proprietary and
confidential information of like nature, to safeguard the Platform and Documentation from infringement,
misappropriation, theft, misuse, or unauthorized access but, in any event, no less than a reasonable
degree of care. If you learn of any infringement, misappropriation, theft, misuse, or unauthorized access
to or of the Platform or Documentation, you will promptly notify Company.
4.2. Feedback. Any suggestions, information or feedback provided by you to Company regarding the
Platform or Documentation (including with respect to modifications, enhancements, improvements and
other changes to the Platform or Documentation) (“Feedback”) is voluntary and you hereby grant to
Company a world-wide, royalty free, irrevocable, transferrable, perpetual license to use (and authorize
others to use) any Feedback without restriction.
4.3. HIPPA Assurances. In the event Company creates, receives, maintains, or otherwise is exposed to
personally identifiable or aggregate patient or other medical information defined as Protected Health
Information ("PHI") in the Health Insurance Portability and Accountability Act of 1996 or its relevant
regulations ("HIPAA") and otherwise meets the definition of Company as defined in the HIPAA Privacy
Standards (45 CFR Parts 160 and 164), Company shall: (a) recognize that HITECH (the Health
Information Technology for Economic and Clinical Health Act of 2009) and the regulations thereunder
(including 45 C.F.R. Sections 164.308, 164.310, 164.312, and 164.316), apply to a business associate of a
covered entity in the same manner that such sections apply to the covered entity; (b) not use or further
disclose the PHI, except as permitted by law; (c) not use or further disclose the PHI in a manner that had
Company done so, would violate the requirements of HIPAA; (d) use appropriate safeguards (including
implementing administrative, physical, and technical safeguards for electronic PHI) to protect the
confidentiality, integrity, and availability of and to prevent the use or disclosure of the PHI other than as
provided for by this Agreement; (e) comply with all applicable requirements of 45 C.F.R. Part 162 if the
Company conducts Standard Transactions for or on behalf of the you; (f) report promptly to you, the user,
any security incident or other use or disclosure of PHI not provided for by this Agreement of which
Company becomes aware; (g) ensure that any subcontractors or agents who receive or are exposed to PHI
(whether in electronic or other format) are explained the Company obligations under this paragraph and
agree to the same restrictions and conditions; (h) make available PHI in accordance with the individual’s
rights as required under the HIPAA regulations; (i) account for PHI disclosures for up to the past six (6)
years as requested by you, which shall include: (i) Dates of disclosure, (ii) names of the entities or persons
who received the PHI, (iii) a brief description of the PHI disclosed, and (iv) a brief statement of the
purpose and basis of such disclosure; (j) make its internal practices, books, and records that relate to the
use and disclosure of PHI available to the U.S. Secretary of Health and Human Services for purposes of
determining Company’s compliance with HIPAA; and (k) incorporate any amendments or corrections to
PHI when notified by you or enter into a separate agreement or other necessary Agreements to comply
with HIPAA. Upon the termination of this Agreement, unless otherwise directed by you, Company shall
either return or destroy all PHI received from the you or created or received by Company on behalf of the
you in which Company maintains in any form. Company shall not retain any copies of such PHI.
Notwithstanding the foregoing, in the event that Company determines that returning or destroying the
Protected Health Information is infeasible upon termination of this Agreement, Company shall provide to
you notification of the condition that makes return or destruction infeasible. To the extent that it is not
feasible for Company to return or destroy such PHI, the terms and provisions of this Agreement shall
survive such termination or expiration and such PHI shall be used or disclosed solely as permitted by law
for so long as Company maintains such Protected Health Information.
5. TERMINATION. This EULA is effective upon Users acceptance and will terminate automatically, without
notice from Company, at any time and for any reason. Upon termination, the license granted to you immediately
terminates and you must end all use of the Platform and Documentation and uninstall and destroy all copies of
the Platform and Documentation in your possession or control. Upon request of Company, you will certify in
writing that you completed such destruction. Company will have no liability arising out of the termination or
cancellation of this EULA. Sections 1.2 (Acceptable Use Policy), 2.4 (Data-Related Representations and
Warranties), 4.2 (Feedback), 4.3 (HIPPA Assurances), 5 (Termination), 6 (Export Restrictions), 7 (Disclaimer of
Warranties; Additional Use Limitations), 8 (Indemnification), 9 (Limitation of Liability), and 10 (General
Provisions) survive termination of this EULA.
6. EXPORT RESTRICTIONS. User will comply fully with all U.S. export laws and regulations to ensure that
neither the Platform nor any technical data related thereto nor any direct product thereof is exported or
re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and
regulations. User is solely responsible for obtaining any and all required governmental authorizations, including
any export or import licenses and foreign exchange permits.
7. WARRANTY; DISCLAIMER OF WARRANTIES; ADDITIONAL USE LIMITATIONS.
7.1. User Warranty. User hereby represents, warrants, and covenants it has the authority to legally bind all
itself to this EULA and User will ensure all of its Representatives comply with this EULA, if applicable.
7.2. Warranty Disclaimers. THE PLATFORM IS LICENSED AND PROVIDED “AS IS” AND “AS
AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY
AND ITS LICENSORS AND PLATFORM PROVIDERS MAKE NO (AND SPECIFICALLY
DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING (A) ANY WARRANTY THAT (I) THE
PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, FREE OF BUGS OR HARMFUL
COMPONENTS, TIMELY, OR SECURE; OR (II) ANY DATA, REPORTS, INFORMATION OR
RESULTS OBTAINED THROUGH THE USE OF THE PLATFORM WILL BE ACCURATE, TIMELY
OR ERROR-FREE, (B) ANY IMPLIED WARRANTY OF ACCURACY, MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NON-INFRINGEMENT, AND (C) ANY WARRANTY ARISING OUT OF ANY COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. NO ORAL OR WRITTEN
INFORMATION OR ADVICE OBTAINED FROM COMPANY OR ELSEWHERE WILL CREATE
ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS EULA. SOME
JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS AND, IN SUCH AN EVENT,
SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY
APPLICABLE LAW.
7.3. Use Limitations.
(a) No Advice. The information available via the Platform will not be used as a substitute for
construction and/or other business advice and such information is not intended to be relied upon
by any person or entity for purposes of construction management services or otherwise. Company
is not in the construction business, and does not provide construction and/or construction
management advice, and User is solely responsible for the accuracy of any construction advice
provided to any person, any construction activities and/or transactions that are managed and/or
contracted through the Platform.
(b) No Guarantee of Accuracy of Information. Company will use commercially reasonable efforts
to ensure the accuracy of any information made available via the Platform; however, Company
makes no guarantee of the sequence, accuracy, or completeness of such information and WILL
NOT BE LIABLE IN ANY WAY TO YOU, YOUR CLIENTS, OR ANYONE ELSE TO
WHOM SUCH INFORMATION IS FURNISHED, OR FOR ANY DELAYS, INACCURACIES,
UNAVAILABILITY, ERRORS, OR OMISSIONS.
8. INDEMNIFICATION. To the fullest extent permitted by applicable law, you will indemnify, defend and hold
harmless Company (including our affiliates and each of our respective Representatives) (collectively, the
Company Parties”) from and against any losses, liabilities, claims, demands, damages, expenses, or costs
(“Claims”) arising out of or related to (a) your failure to comply with applicable laws or your business
operations; (b) any Feedback or your Data; (c) your violation of this EULA or any agreement between you and
any third party (including any of Your Authorized Service Providers); or (d) your violation, misappropriation, or
infringement of any rights of another (including intellectual property rights or privacy rights). In addition, if you
have accepted this EULA on behalf of your owners, directors, employees, agents and/or other representatives
(collectively, Representatives”) or you have otherwise made the Platform and Documentation available to
your Representatives, you will indemnify, defend and hold harmless the Company Parties from and against any
Claims arising out of or related to (i) breach of the representation, warranty or covenant in Section 7.1 (User
Warranty), (ii) failure by any Representative to comply with this EULA, or (iii) your liability to any
Representative. You agree to promptly notify Company Parties of any Claims, cooperate with Company Parties
in defending such Claims and pay all fees, costs, and expenses associated with defending such Claims
(including attorneys’ fees). You also agree that the Company Parties will have control of the defense or
settlement, at Company’s sole option, of any such Claims. This indemnity is in addition to, and not in lieu of,
any other indemnities set forth in a written agreement between you and Company or the other Company Parties.
9. Text Messaging and Opt-In Data
All the above categories exclude text messaging originator opt-in data and consent. This information will not be
shared with any third parties for marketing or unrelated purposes.
We will not share your opt-in to an SMS campaign with any third party for purposes unrelated to providing you
with the services of that campaign. However, we may share your Personal Data, including your SMS opt-in or
consent status, with third parties that assist in delivering our services, such as messaging providers, customer
support platforms, or compliance monitoring partners. These third parties are contractually obligated to protect
your information and use it solely for the purpose of facilitating our communications with you.
By opting into our SMS communications, you acknowledge and agree to receive messages related to your
service, appointments, or other relevant updates. You may opt out at any time by following the instructions
provided in our messages. Standard messaging and data rates may apply.
For further inquiries regarding your privacy rights and SMS opt-in data, please contact us at
support@hikemedical.com.
10. LIMITATION OF LIABILITY.
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PARTIES
WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN
CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE, FOR
ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL
DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, REVENUE OR GOODWILL, LOSS
OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER), EVEN IF
COMPANY OR THE OTHER COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
10.2. NOTWITHSTANDING THE FOREGOING, THE COMPANY PARTIES ARE NOT RESPONSIBLE
FOR ANY LIABILITY RESULTING FROM ANY CAUSES EXTERNAL TO THE PLATFORM OR
DOCUMENTATION, SUCH AS NEGLIGENCE OR IMPROPER USE OR HANDLING; COMPUTER
VIRUSES, SPYWARE, MALWARE, WORMS OR OTHER HARMFUL PROGRAMS; USE OF
THIRD-PARTY PRODUCTS OR SERVICES WITH WHICH THE PLATFORM INTERFACES;
INTERNET OR NETWORK CONNECTIVITY, OR LACK THEREOF; YOUR AUTHORIZED
SERVICE PROVIDERS’ ACCESS TO OR USE OF ACCESSED DATA, OR MODIFICATIONS TO
DATA MADE BY ANYONE OTHER THAN COMPANY. THE TOTAL AGGREGATE LIABILITY
OF THE COMPANY PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS
EULA OR THE PLATFORM, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO
ONE HUNDRED DOLLARS ($100.00 USD).
10.3. THE LIMITATIONS SET FORTH IN THIS SECTION 9 WILL NOT LIMIT OR EXCLUDE
LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OF
COMPANY OR THE OTHER COMPANY PARTIES OR FOR ANY OTHER MATTERS IN WHICH
LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR
EXCLUSIONS MAY NOT APPLY TO YOU.
10.4. YOU ACKNOWLEDGE THAT THE EXCLUSIONS, DISCLAIMERS, AND LIMITATIONS OF
LIABILITY SET FORTH IN THIS EULA ARE ESSENTIAL COMPONENTS OF THIS EULA AND
THAT COMPANY WOULD NOT ENTER INTO THIS EULA WITHOUT THESE LIMITATIONS ON
ITS LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF
ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE.
11. GENERAL PROVISIONS.
11.1. Contact Details. If Company needs to contact you about this EULA or your relationship with Company
under this EULA, you consent to receive the notices by email, which will be deemed given upon
transmission to an email address that you have provided to Company. Notice will be deemed given upon
transmission. You agree that any such notice that Company sends electronically will satisfy any legal
communication requirements. Your notice to Company must be sent in writing to
harsh@hikemedical.com. Notice will be deemed given upon transmission, and you and Company agree
that any such notice electronically sent by either party in the manner identified in this section will satisfy
any applicable legal communication requirements.
11.2. Attorneys’ Fees. The prevailing party in any dispute with respect to this EULA or the Platform, including
in tort, is entitled to recover reasonable attorneys’ fees, costs, and expenses incurred with respect to such
dispute and in any appeal.
11.3. Governing Law; Venue. Any dispute arising from this EULA and your use of the Platform will be
governed by and construed and enforced in accordance with the laws of [New York], without regard to
conflict of law rules or principles (whether of [New York] or any other jurisdiction) that would cause the
application of the laws of any other jurisdiction. All disputes arising from or relating to this EULA will
be within the exclusive jurisdiction of the state or federal courts located within the State of [New York],
and the parties hereby consent to such exclusive jurisdiction and waive objections to venue therein.
11.4. Severability. If any provision or part of a provision of this EULA is unlawful, void, or unenforceable,
that provision or part of the provision is deemed severable from this EULA and does not affect the
validity and enforceability of any remaining provisions.
11.5. Miscellaneous. The failure of either party to exercise or enforce any right or provision of this EULA will
not operate as a waiver of such right or provision. This EULA reflects the entire agreement between the
parties relating to the subject matter hereof and supersedes all prior agreements, representations,
statements and understandings of the parties. The section titles in this EULA are for convenience only
and have no legal or contractual effect. Use of the word “including” will be interpreted to mean
“including without limitation.” Except as otherwise provided herein, this EULA is intended solely for the
benefit of the parties and is not intended to confer third-party beneficiary rights upon any other person or
entity. You agree that communications and transactions between us may be conducted electronically.
Each party will bear its own expenses in connection with the performance of its obligations under this
EULA.