The California HealthCare Foundation ("CHCF"), a California nonprofit public benefit corporation, has developed a product titled "Toolset for Aggregators Implementing the CHCF Small Practice eDesign Model" (the "Toolset") intended to guide independent physician associations, medical foundations/societies, health plans, or similar health care organizations interested in assisting their small practice members implement electronic health records and practice management systems.

 

CHCF, as licensor of the Toolset, will deliver to you, as licensee ("Licensee") a USB memory stick (i.e. a flash memory data storage device integrated with a USB) containing the Toolset, provided that Licensee (1) agrees to the terms and conditions of this End User License Agreement ("EULA"); (2) completes the online form providing CHCF with Licensee's contact information and reason for requesting the Toolset; and (3) that Licensee qualifies to receive the Toolset as determined by CHCF in its sole discretion.

 

By clicking on the "I AGREE" button at the end of this EULA, Licensee will have accepted and agreed to be bound by these terms and conditions, and Licensee will also have confirmed that Licensee has the authority to agree to be so bound.

 

I. Use of the Toolset.
Subject to the restrictions of this EULA, CHCF hereby grants to Licensee a nonexclusive, revocable, nontransferable right free of charge to use the Toolset only in conjunction with Licensee's advising of physician-based medical practices to implement electronic health records and practice management systems software ("EHR-PMS") or physician associations, medical foundations/societies, health plans, or similar health care organizations to assist their small practice members implement EHR/PMS (collectively, "Licensee Services").

 

II. Restrictions.
Licensee may not:
(a) Commercially distribute or sublicense the Toolset as a standalone product;
(b) Charge fees for or commercially exploit the Toolset as a standalone product or permit others to do so;
(c) Remove or alter any of CHCF's copyright notices; or
(d) Use the Toolset for any purpose other than the Licensee's delivery of Licensee Services.

 

III. Proprietary Rights and Confidentiality.
The Toolset is solely owned by CHCF and is protected by copyright laws. Licensee will take all steps necessary to protect CHCF's proprietary rights in the Toolset, including, but not limited to, the proper display of copyright notices on any versions or copies in any form of the Toolset and stored in any media. Except for the license grant set forth in Section I above, this EULA does not grant Licensee any rights in the Toolset. Licensee agrees to immediately notify CHCF in writing of any misuse, misappropriation, or copying of the Toolset that may come to Licensee's attention.

 

IV. Disclaimer of Warranties.
THE TOOLSET IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NEITHER CHCF NOR ITS CONTRACTORS MAKE ANY WARRANTIES REGARDING THE TOOLSET, EITHER EXPRESS OR IMPLIED, AND CHCF AND ITS CONTRACTORS EXPRESSLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT FOR THE TOOLSET. NEITHER CHCF NOR ITS CONTRACTORS WARRANT THAT THE TOOLSET WILL MEET LICENSEE'S REQUIREMENTS, OR THAT IT WILL BE COMPLETE, ACCURATE, OR ERROR-FREE.

 

V. Injunctive Relief.
Because of the unique nature of the Toolset, Licensee agrees that CHCF will suffer irreparable injury in the event Licensee fails to comply with any of the terms of this EULA and that monetary damages may be inadequate to compensate CHCF. Accordingly, Licensee agrees that CHCF will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief, without posting a bond, to enforce the terms of this EULA.

 

VI. Termination.
Licensee may terminate this EULA at any time. CHCF may immediately terminate this EULA if Licensee breaches any agreement or obligation contained or referred to in this EULA. Upon termination, Licensee shall dispose of the Toolset and all copies or versions thereof either by returning the USB memory stick containing the Toolset to CHCF or by destroying the same, including any copies of the Toolset, and certifying such destruction in writing. The provisions of Sections II, III, IV, V, VI, VII, and VIII shall survive termination of this EULA.

 

VII. Limitation of Liability.
LICENSEE AGREES THAT IN NO EVENT SHALL CHCF OR ITS CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, OR TORTIOUS CONDUCT (INCLUDING NEGLIGENCE) RELATING TO, CAUSED BY, OR ARISING OUT OF ANY BREACH OF OBLIGATIONS OR ANY OTHER CAUSE, INCLUDING BUT NOT LIMITED TO INADEQUACY, INACCURACY, OR INCOMPLETENESS OF, OR ERRORS CONTAINED IN, THE TOOLSET, EVEN IF CHCF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN ADDITION, LICENSEE AGREES THAT ITS SOLE REMEDY FOR ANY DAMAGES IT MAY SUSTAIN ARISING FROM ANY AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE, SHALL BE TO TERMINATE THE EULA.

 

VIII. Miscellaneous.
Licensee may not assign or transfer its rights under this EULA. Any attempted transfer or assignment shall be null and void. This EULA is the complete and exclusive statement of the agreement between CHCF and Licensee and supersedes all proposals, representations, or prior agreements, oral or written, relating to the subject matter of this EULA. This EULA may not be amended, except by an agreement in writing which is signed by authorized representatives of CHCF and Licensee. Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right. If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect. This EULA will be governed by the laws of the State of California, U.S.A., excluding the application of its conflicts of law rules. Venue for any action under this EULA shall be in Alameda County, California. Licensee consents to the personal jurisdiction of the courts of such venue.