legal

END USER LICENSE AGREEMENT AND TERMS OF USE ("Agreement")

THIS AGREEMENT WAS LAST UPDATED ON OCTOBER 9, 2011

PLEASE SCROLL DOWN AND READ THE AGREEMENT AND TERMS OF USE BELOW.

This Agreement governs your use of any files, data, applications, software, products, website or service from WISEware, LLC ("Service"). By using or accessing the Service, you agree to be bound by the terms of this Agreement.

Please read this Agreement carefully. It constitutes a legally binding agreement between you and WISEware, LLC ("WISEware"). It also addresses several important laws including:

(i) the Health Insurance Portability and Accountability Act of 1996 and/or its implementing regulations at 45 CFR Sections 160.101 et seq. and 164.102 et seq. ("HIPAA"); (ii) the Health Information Technology for Economic and Clinical Health Act, Title XIII (Section 13001) of the American Recovery and Reinvestment Act of 2009 and/or any implementing regulations ("HITECH"), and (iii) the Federal Trade Commission’s Health Breach Notification Rule, 16 CFR Part 318 (the "FTC Rule").

1. Limitations on Use. You agree to certain restrictions on your access and use of the Service:
   
   
   1. you agree that only one individual may access the Service at the same time using the same user name or password, and you agree to notify WISEware immediately if you suspect misuse of your account.
   2. you agree that WISEware reserves all rights to any software, products, applications, text, graphics, images, design, organization, compilation, look and feel, and all other protectable intellectual property available through the Service and that you will not circumvent technical or digital rights management in any such content.
   3. you agree not to modify, translate, reverse engineer, decompile, or disassemble any software or code except and only to the extent, if any, permitted by the U. S. Copyright Act.
   4. you agree not to use the Service for any unlawful purpose and that WISEware has the right to terminate your access to the Service if, in its sole opinion, your use of the Service may harm others or WISEware, violate any laws, regulations or rulings, infringe upon another person's rights, or violate the terms of this Agreement.
   5. you acknowledge that use of the Service may involve access to information or data belonging to others, and you agree to comply with the access, confidentiality, and security provisions set forth below.
   6. you assume sole and exclusive responsibility and liability for anything you provide, enter, or transmit using the Service as well as for anything you distribute, reproduce, link to or otherwise transmit to third parties.
   
   
2. Accessing Online Accounts. WISEware will assign you a unique user identification code and password (collectively “User ID”). This User ID is required in order to access and use the non-public features and functions of the Service. WISEware reserves the right to verify and confirm information obtained from you and that your access and/use are authorized and appropriate.
   
   You are responsible for all activities occurring under your User ID and are responsible for protecting the confidentiality of your User ID at all times. You agree not to disclose your User ID, not to allow anyone else to use your User ID and not to use anyone else's User ID.



3. Confidentiality of Accessed Information. You acknowledge that WISEware may host, maintain, or otherwise manage confidential data and information ("CI") and protected health information ("PHI") as part of the Service. For purposes of this Agreement, "PHI" has the same meaning as the term "protected health information" in HIPAA.
   
   WISEware respects privacy and confidentiality and requires the security of CI and PHI to be maintained at all times. Further, you understand and agree that PHI may not be used or disclosed without the written consent or authorization of the individual, with only limited exceptions provided by law, and you agree to use the Service in full compliance with the privacy and security standards of HIPAA, HITECH, and the FTC Rule as they may be amended from time to time.
   
   Without limiting the scope of your obligations to maintain the confidentiality of CI and PHI, you agree:
   
   
   • to ensure the confidentiality, integrity, and availability of all CI, PHI, and electronic PHI created, received, maintained, or transmitted via the Service;
   • to protect against any reasonably anticipated threats or hazards to the security or integrity of CI and PHI created, received, maintained, or transmitted via the Service;
   • to protect against any reasonably anticipated uses or disclosures of CI and PHI that are not permitted or required by law;
   • to fulfill all obligations under HIPAA, HITECH, or the FTC Rule, or under a "Business Associate" contract as defined by HIPAA;
   • to make reasonable efforts to limit the CI and PHI accessed, used, and/or disclosed via the Service to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request;
   • not to use or disclose CI and PHI via the Service if it is covered by a restriction in violation of such restriction;
   • to abide by the privacy requirements of HIPAA when accessing, using, and/or disclosing the PHI of a deceased person via the Service;
   • not to access, use, and/or disclose PHI in a manner inconsistent with a Notice if it is required under any law;
   • to take no retaliatory action to coerce patients to waive their rights regarding their PHI;
   • to make all appropriate reports of breaches of CI and PHI and to account for the disclosures of CI and PHI made by you; and
   • not to circumvent any security mechanisms that have been implemented by WISEware to protect CI and PHI.



4. Website Security and Termination of Rights. If you fail to observe any of the terms of this Agreement, WISEware reserves the right to suspend, terminate, or otherwise revoke your license to access and use the Service without notice to you and as deemed appropriate and necessary in its sole and exclusive discretion. The right to restrict, suspend, terminate, or otherwise revoke your license to access and use the Service is in addition to any other rights or remedies that may be available to WISEware under this Agreement or applicable local, state, or federal laws, statutes, rules, or regulations.



5. Third Party Web Sites, Services and Software. WISEware may link to, or promote, web sites or services from other companies or offer you the ability to download software from other companies. You agree WISEware is not responsible for, and does not control, those web sites, services and software.



6. Disclaimers of Warranties and Limitations on Liability. You assume the entire risk as to use, quality, accuracy, performance, timeliness, adequacy, completeness, correctness, authenticity, security and validity of the Service or data extracted using the Service. WISEware, its directors, officers, affiliates, licensors, employees, suppliers, agents or representatives will not bear or assume any liability or responsibility for any loss or damage that is or may be sustained as a result of a delay, failure or interruption of your use of the Service, whether or not arising from the act or omission of a third party or from any other cause whether within our control or not.
   
   YOU AGREE THAT YOUR ACCESS TO, AND USE OF, THE SERVICE AND THE CONTENT AVAILABLE THROUGH THE SERVICE IS ON AN "AS-IS", "AS AVAILABLE" BASIS AND THAT WISEWARE SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WISEWARE DOES NOT WARRANT, AND MAKES NO REPRESENTATIONS, THAT THE SERVICE WILL OPERATE ERROR-FREE, THAT THE SERVICE WILL BE AVAILABLE OR PERFORM AS DESCRIBED, THAT THIS SERVICE IS SECURE (OTHER THAN AS DESCRIBED), THAT THIS SERVICE OR ANY SERVERS USED TO DELIVER THE SERVICE ARE FREE OF COMPUTER VIRUSES, MALICIOUS CODES, OR OTHER HARMFUL GOODS, OR THAT YOUR ACCESS TO AND USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. IF YOUR USE OF THE SERVICE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR LOSS OF PROFITS OR DATA AS A RESULT OF ANY OF THE ABOVE, WISEWARE IS NOT RESPONSIBLE FOR THOSE COSTS.
   
   IN NO EVENT SHALL WISEWARE BE LIABLE FOR: ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY, OR CONSEQUENTIAL DAMAGES, ANY LOST PROFITS, ANY DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION OR ANY OTHER DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OR INABILITY TO USE THE SERVICE, ANY DATA, INFORMATION, OR MATERIAL IN CONNECTION WITH THIS AGREEMENT.
   
   THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF WHETHER YOUR ACTION IS BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT YOU HAVE ADVISED WISEWARE, DIRECTLY OR INDIRECTLY, THAT SUCH DAMAGES ARE POSSIBLE. TO THE EXTENT THAT THE ABOVE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS MAY NOT APPLY TO YOU AS A RESULT OF CONTRADICTORY LOCAL, STATE, OR FEDERAL LAW, YOU EXPRESSLY CONSENT AND AGREE THAT THE ABOVE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS WILL APPLY TO THE FULLEST EXTENT ALLOWABLE UNDER THE APPLICABLE LAW.



7. Indemnity of WISEware. You agree to defend, indemnify, and hold harmless WISEware, its owners, officers, directors, affiliates, licensors, agents and employees from and against any claims, actions or demand that allegedly result from your use of the Service and/or your breach of this Agreement. Such indemnity extends to reasonable legal and accounting fees, penalties, fines, and interest assessments associated with such claims, actions, or demands.
   
   WISEware may participate in the defense and in any negotiations, including settlement negotiations, and you agree that you may not settle any such claim or action which affects the legal rights or obligations of WISEware, its owners, officers, directors, affiliates, licensors, agents and employees without the express, explicit written consent of WISEware. Nothing in this Agreement shall relieve you of any responsibility if any court, governmental body or regulatory agency finds that you have incurred liability or responsibility in connection with a claim, action, or demand.



8. General. You agree that this Agreement, as well as any and all claims arising from this Agreement will be governed by and construed in accordance with the laws of the State of Louisiana, United States of America, without regard to any conflict of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in New Orleans, Louisiana. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, that provision shall be severed from the License and the other provisions shall remain in full force and effect.



9. Changes to Agreement. WISEware may change the terms of this Agreement at any time. After a change has been made, at your next log-in to any Service, you will be notified of the revised terms of use and asked to agree to them. Continued use of the Service after that log-in confirms your agreement to the revised terms of use.

Service Level Agreement (“SLA”)

THIS AGREEMENT WAS LAST UPDATED ON August 7, 2012

The terms and conditions set forth below covers all products and services offered by WISEware, LLC (“WISEware”) unless WISEware and the Client have entered into and signed a different, written service level agreement.

Changes to Agreement. WISEware may change the terms of this SLA at any time by providing written notice that a change occurred by means of a statement on the “Legal” page of the website. Any changes will appear in the SLA, which can be accessed at any time by going to the “Legal” page of the website. If written notice is in fact provided as described above, continued use of WISEware products or services after changes are made to the SLA will signify Client’s agreement to be bound by such changes.

A. Monthly Service Level

1. The Service Level is 99.9%.
2. The Monthly Uptime Percentage is calculated for a given calendar month using the following formula:

B. Downtime Notification

1. Scheduled System Downtime will be scheduled at least seven days in advance and planned as closely as possible to occur during non-business hours. Client will receive notification via prominent posting on the WISEware login page.
2. Unscheduled System Downtime cannot be planned. In the event of an unscheduled System Downtime occurrence that will last more than 2 hours, Client will be notified via email as soon as possible in addition to prominent posting on the WISEware login page.

C. Service Credits

1. Should the Service Level fall below 99.9% for a given month, WISEware will provide a Service Credit as noted in the chart below:

Monthly Uptime Percentage	Service Credit*
< 99.9%	5%
< 99%	10%
< 95%	25%

*Service Credits are calculated on a per month basis and apply only to the service which did not meet the monthly Service Level (the “Affected Service”). The Service Credit will be issued against the Client’s applicable month’s fee for the Affected Service. If Client does not pay monthly fees to WISEware for the Affected Service, then the Service Credit will be calculated by dividing the Client’s annual or paid-up license fee by twelve (12) and will be issued against the following in order: the Client’s next invoice for customized reporting or programming services provided by WISEware; the Client’s next renewal fee for the Affected Service; any other invoice issued to the Client for WISEware products or services.

2. A Service Credit is Client’s sole and exclusive remedy for any violation of this SLA.
3. A Service Credit awarded in any calendar month shall not, under any circumstance, exceed Client’s monthly fee for the Affected Service or, in the case where Client does not pay monthly fees for the Affect Service, the Client’s annual or paid-up license fee divided by twelve (12).
4. Client must be current on all outstanding invoices for the Affected Service(as defined in the Service Agreement) to be eligible for the credits referenced in this SLA. No credits will be extended if Client is delinquent in its payment of outstanding invoices.

D. Claims

1. In order to make a Claim, Clients and all associated end users must be in compliance with the terms and conditions of any agreement with WISEware for the Affected Service including the End User License Agreement and WISEware’s Terms of Use. The terms of use can be viewed by clicking the link under User Access at http://www.wise-ware.com/legal.php.
2. In order to be eligible to submit a Claim with respect to any Incident, the Client must first have notified WISEware of the Incident within five business days following an Incident by reporting an error or problem via the WISEware contact us page (https://www.wise-ware.com/contact.php) and choosing “Report an Incident.”
3. A claim form will be provide to the Client on which they must provide all reasonable details regarding the Claim, including but not limited to, detailed description of the Incident, the duration of the Incident, the number of affected users and the locations of such users.
4. Client must submit the Claim to WISEware, and provide sufficient evidence to support the Claim, by the end of the month following the month in which the Incident which is the subject of the Claim occurs (for example, Incident occurs on January 15th, Client provides Notice on January 20th, Client must provide sufficient evidence to support Claim by February 28th).
5. WISEware will use all information reasonably available to it to validate Claims and make a good faith judgment on whether the SLA and Service Levels apply to the Claim.
6. WISEware will use commercially reasonable efforts to process Claims within 30-days.

E. Exclusions

1. Downtime does not include:
1. The period of time when the Service is not available as a result of Scheduled Downtime; or
2. The following performance or availability issues that may affect the Service:
1. Due to factors outside WISEware’s reasonable control;
2. That resulted from Client’s or third party hardware, software or services;
3. That resulted from actions or inactions of Client or third parties;
4. That resulted from actions or inactions by Client or Client’s employees, agents, contractors, or vendors, or anyone gaining access to WISEware’s network by means of Client’s passwords or equipment.
5. That were caused by Client’s use of the Service after WISEware advised Client to modify its use of the Service, if Client did not modify its use as advised;
6. Intermittent periods of Downtime that are ten minutes or less in duration.

F. Definitions:

1. “Affected Service” means a Service or Services offered through WISEware which did not meet the monthly Service Level.
2. “Agreement” means this Service Level Agreement (“SLA”).
3. “Claim” means a claim submitted by Client to WISEware that a Service Level under this SLA has not been met and that a Service Credit may be due to Client.
4. “Client” means the person or organization that contracted for a Service or Services from WISEware.
5. “Downtime” means a period of time when Clients are unable to read or write any Service data for which they have appropriate permission.
6. “Exclusions” means the performance or availability issues that are noted in Section E.
7. “Incident” means a set of circumstances resulting in an inability to meet a Service Level.
8. “WISEware” means WISEware, LLC.
9. “Monthly Uptime Percentage” is calculated on a calendar month basis (according to the formula set forth in Section A) using data collected about the Service’s availability for a given calendar month by a third-party provider who makes frequent log-in attempts to the Service on a 24-hour/seven day a week basis.
10. “Notice” means that within five business days following an Incident, Client must notify WISEware of the Incident.
11. “Service” or “Services” means a service provided to Client through WISEware including: WISEart®, WISEcap®, WISEcast®, WISEops® for the Web, WISEops® for Windows®, WISEpac®, WISEguest®, and WISEtac®.
12. “Scheduled Downtime” means published maintenance windows or times where WISEware notifies Client of periods of Downtime for scheduled network, hardware, Service maintenance or Service upgrades at least seven days prior to the commencement of such Downtime.
13. “Service Credit” means the amount credited to Client by WISEware for a validated Claim.
14. “Service Level” means the percentage of Service availability for a given month that WISEware agrees to provide Client, which is measured by the Monthly Uptime Percentage.
15. “Subscription Fee” means the monthly amount that Client pays WISEware for the WISEcap application for the duration of the term of the Service Agreement.