Centricity: Centricity Electronic Medical Record
CHUG: Centricity Health Care Users Group.
Content: Software, content and digital materials distributed via the CHUG Marketplace.
Developer: Any person or company who is registered and approved by CHUG to distribute Content in accordance with the terms of this Agreement.
Marketplace: The online store CHUG has created and operates which allows registered Developers to distribute Content.
Specially Licensed Content: Content that was created using a program licensed by a Special Licensor. Specially Licensed Content is subject to special restrictions in Section 5.6 of this agreement.
Special Licensors: Logical Innovations, LLC or Clinical Forge, LLC.
Transaction Fee: For all Content for which a fee is charged, the transaction fee will be calculated as provided on the Transaction Fee schedule, which can be found at centricityusers.com. The Transaction Fee schedule is subject to change.
1.1 The Marketplace is a website available to the public where Developers can distribute Content for use with Centricity. In order to distribute Content on the Marketplace, Developer must acquire and maintain a valid account with CHUG.
1.2 If Developer wants to charge a fee for Developer’s Content, Developer must also acquire and maintain a valid PayPal account.
2. Accepting this Agreement
2.1 This agreement (“Agreement”) forms a legally binding contract between Developer and CHUG in connection with Developer’s distribution of Content via the Marketplace. Developer acknowledge that CHUG will display and make Developer’s Content available for download and purchase by users solely on Developer’s behalf and not on its own behalf. In order to distribute Content on the Marketplace, Developer must accept this Agreement and provide complete and accurate information to CHUG. Developer may not distribute Content on the Marketplace if Developer does not accept this Agreement.
2.2 If Developer is agreeing to be bound by this Agreement on behalf of Developer’s employer or other entity, Developer represents and warrants that Developer has full legal authority to bind Developer’s employer or such entity to this Agreement. If Developer does not have the requisite authority, Developer may not accept the Agreement or use the Content on behalf of Developer’s employer or other entity.
2.3 CHUG reserves the right to suspend and/or bar any Developer from the Marketplace at its sole discretion upon written notice to Developer.
3. Pricing and Payments.
3.1 CHUG will display Developer’s Content on the Marketplace at the prices Developer, in Developer’s sole discretion, establishes. Developer will be solely responsible for including the cost of any applicable taxes in the price charged to users on the Marketplace. Developer is further responsible for remitting any applicable taxes to the appropriate taxing authority. Developer will be solely liable for, and will indemnify and hold CHUG and its affiliates harmless against, all taxes owed in connection with the sale of any Content, if any, and against all interest, penalties, costs and expenses (including attorney’s fees) related to any such taxes.
3.2 This Agreement applies to all Content Developer distributes on the Marketplace, whether such Content is free or if Developer charges a fee. To charge a fee for Developer’s Products, Developer must have a valid PayPal account, maintain such account in good standing, and provide such account information (including any updates to such account information) to CHUG. If Developer charges a fee for Content, such sale shall be subject to a Transaction Fee as set forth herein. Developer may choose to distribute Products for free. If the Product is free, Developer will not be charged a Transaction Fee.
3.3 Developer is solely responsible for providing all support for Developer’s Content. CHUG will instruct buyers to contact the Developer in connection with any and all defects or performance issues in any Content they obtained from the Marketplace. CHUG will have no responsibility to undertake or handle support and maintenance of Developer’s Content and any complaints about Developer’s Content. Developer must supply CHUG with and maintain valid and accurate contact information so that such information can be displayed with Developer’s Content on the Marketplace and made available to users for customer support and legal purposes. If Developer fails to provide adequate information or support for Developer’s Content, CHUG at CHUG’s sole discretion may remove such Content from the Marketplace.
3.4 Conflict Resolution and Authority to Refund. In the event that a user has an issue with Developer’s Content, CHUG encourages Developer to work with the user to reach a resolution directly with the user. In the event Developer and the user cannot reach an agreement on a resolution of the dispute, Developer grants CHUG the authority to determine whether a refund should be given to the user. In the event CHUG determines a refund should be granted, Developer authorizes CHUG to force a refund via PayPal or withhold the amount of the refund from Developer’s future sales.
3.5 Re-downloads. Users are allowed unlimited re-downloads of any Content distributed via the Marketplace even if Developer removes such Content from further sale on the Marketplace. Notwithstanding the foregoing, if Developer removes Content from the Marketplace pursuant to clauses (i), (ii), (iii) or (iv) of Section 6.1, such Content shall be removed from all portions of the Marketplace and users shall no longer have a right or ability to reinstall the affected Content. Notwithstanding the foregoing, Developer may place limits on the number of devices and/or software applications that users may use to access Content. In such event, Developer represents and warrants that it will include a disclaimer of such limitation in the description of the Content.
4. Developer’s Use of the Marketplace
4.1 Developer agree to use the Marketplace only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
4.2 Except for the license rights granted by Developer in Section 5 below, CHUG agrees that it obtains no right, title or interest from Developer (or Developer’s licensors) under this Agreement in or to any Content, including any intellectual property rights which subsist in such Content.
4.3 Developer agrees that if Developer uses the Marketplace to distribute Content, Developer will protect the privacy and legal rights of users. If users provide Developer with, or Developer’s Content accesses or uses, user names, passwords, or other login information or personal information, Developer must make the users aware that the information will be available to Developer’s Content, and Developer must provide legally adequate privacy notice and protection for those users. Further, Developer’s Content may only use that information for the limited purposes for which the user has given Developer permission to do so. If Developer’s Content stores personal or sensitive information provided by users, it must do so securely and only for as long as it is needed. But if the user has opted into a separate agreement with Developer that allows Developer or Developer’s Content to store or use personal or sensitive information directly related to Developer’s Content (not including other products or applications) then the terms of that separate agreement will govern Developer’s use of such information.
4.4 Prohibited Actions. Developer agree that Developer will not engage in any activity with the Marketplace, including the development or distribution of Content, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party including, but not limited to, Centricity or the health care providers using Centriticy. Developer may not use customer information obtained from the Marketplace to sell or distribute Content outside of the Marketplace. Developer understands that CHUG at its sole discretion may ban Developer from the Marketplace if CHUG believes that Developer has taken any actions described in this section.
4.6 Developer agrees that Developer is solely responsible for (and that CHUG has no responsibility to Developer or to any third party for):
(a) any Content Developer distributes via the Marketplace and for the consequences of such distribution. Such consequences include, but are not limited to, product liability, consumer protection, and/or intellectual property claims relating to Developer’s products (including any loss or damage which CHUG may suffer).
(b) any breach of Developer’s obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences of any such breach (including any loss or damage which CHUG or any third party may suffer).
4.8 Product Ratings. Users of the Marketplace will be able to rate and review Content if they have downloaded such Content. CHUG may use these Content ratings be used to determine the display and order of presentation of Content in the Marketplace. At all times, the placement of Content on the Marketplace shall be subject to CHUG’s sole discretion.
Developer’s Products may be subject to user ratings to which Developer may not agree. Developer may contact CHUG if Developer has any questions or concerns regarding such ratings.
4.9 Developer will be responsible for uploading Content to the Marketplace, providing required information about the Content and its support to users, and accurately disclosing any security information about the Content. Content that is not uploaded in accordance with this section will be removed from the Marketplace.
5. Intellectual Property; Licenses
5.1 Developer hereby grants to CHUG during the term hereof a non-exclusive, worldwide license to: reproduce, perform, display, analyze, and use the Content in connection with (i) the operation and marketing of the Marketplace and CHUG; and (ii) checking for compliance with this Agreement. Developer further grants to CHUG a non-exclusive, worldwide license to distribute the Content to users via download from the Marketplace.
5.2 If Developer chooses to make the Content available for free, the licenses granted in Section 5.1 shall be royalty free. If Developer does charge for the Content, the royalty for the licenses granted in Section 5.1 shall be the price of the Content less any the applicable Transaction Fee.
5.3 After termination of this Agreement, Marketplace will not distribute Developer’s Content to any additional customers, but may retain and use copies of the Content for support of the Marketplace and may, but is not obligated to, make such Content available for re-download to users who have previously purchased the Content for a period of time not shorter than two years from the date of termination of this Agreement.
5.4 DEVELOPER REPRESENTS AND WARRANTS SOLELY TO CHUG THAT DEVELOPER HAS ALL INTELLECTUAL PROPERTY RIGHTS, INCLUDING ALL NECESSARY PATENT, TRADEMARK, TRADE SECRET, COPYRIGHT OR OTHER PROPRIETARY RIGHTS, IN AND TO THE CONTENT. IF DEVELOPER USES THIRD-PARTY MATERIALS, SOFTWARE, CODE OR OTHER INTELLECTUAL PROPERTY, DEVELOPER REPRESENTS AND WARRANTS THAT DEVELOPER HAS THE RIGHT TO USE AND DISTRIBUTE THE THIRD-PARTY MATERIAL IN THE CONTENT. DEVELOPER AGREES THAT DEVELOPER WILL NOT SUBMIT MATERIAL TO THE MARKETPLACE THAT IS COPYRIGHTED, PROTECTED BY TRADE SECRET OR OTHERWISE SUBJECT TO THIRD PARTY PROPRIETARY RIGHTS, INCLUDING PATENT, PRIVACY AND PUBLICITY RIGHTS, UNLESS DEVELOPER IS THE OWNER OF SUCH RIGHTS OR HAS PERMISSION FROM THEIR RIGHTFUL OWNER TO SUBMIT THE MATERIAL.
5.5 Developer agrees to notify CHUG of any Specially Licensed Content at the time of submission to the Marketplace. Developer understands and agrees that by submitting Specially Licensed Content, it is representing and warranting that it has a license to use the Special Licensor’s software to create such Content. Developer further agrees that if Developer charges a fee for any Specially Licensed Content, that such Content will be subject to fees as set forth on the Transaction Fee schedule (the “Negotiated Royalties”). CHUG represents and warrants that in exchange for payment of the Negotiated Royalties, the Special Licensors have agreed to allow Developer to sell the Specially Licensed Content on the Marketplace regardless of whether or not Developer has an independent right to sell such Specially Licensed Content.
5.6 Non-Circumvention. Developer agrees not to sell Content it submits to the Marketplace directly, indirectly or through a third party to any Marketplace user outside of the Marketplace. To the extent a Marketplace user is an established customer of Developer prior to posting Content on the Marketplace or Developer has an agreement with one or more Special Licensors that allows Developer to sell Specially Licensed Content, such relationship or sales shall be excluded from the restrictions in this Section 5.7.
6. Removal of Content from Marketplace
6.1 Developer may remove Content from the Marketplace at any time, provided, however, Developer must comply with this Agreement and PayPal’s terms of service for any Content previously distributed via the Marketplace, including but not limited to any refund requirements. Removing Content from the Marketplace does not (a) affect the license rights of users who previously purchased or downloaded such Content or alter Developer’s obligation to deliver or support Content for such users, or (b) remove Developer’s Content from any users’ devices, computers or other storage mediums or any part of the Marketplace where previously purchased or downloaded Content is stored on behalf of users, and, notwithstanding the termination of this Agreement for any reason, Developer agrees that CHUG may make such Content available for re-download to such users for a period of time not less than two years from the date the Content was removed from the Marketplace. Such Content will not be available for purchase or download to any new users. Notwithstanding the foregoing, CHUG will not maintain such Content on any portion of the Marketplace in the event (i) CHUG has received an order from a court of law mandating the Content be removed from the Marketplace or (ii) Developer has removed Content from the Marketplace and provided written notice to CHUG that such removal was due to (a) an allegation of infringement, or actual infringement, of any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person, (b) an allegation of defamation or actual defamation, (c) an allegation of violation, or actual violation, of any third party’s right of publicity or privacy, or (d) an allegation or determination that such Product does not comply with applicable law.
6.2 CHUG reserves the right to remove Content from the Marketplace upon written notice to Developer in the event Developer notifies CHUG or CHUG otherwise becomes aware and determines in its sole discretion that Developer’s Content or any portion thereof:
- (a) violates the intellectual property rights or any other rights of any third party;
- (b) violates any applicable law or is subject to an injunction;
- (c) is being distributed by Developer improperly;
- (d) may create liability for CHUG;
- (e) is deemed by CHUG to have a virus or is deemed to be malware, spyware or have an adverse impact on the function or security or function of Centricity; or
- (f) violates the terms of this Agreement.
In the event that Developer’s Content is involuntarily removed because it is defective, malicious, infringes intellectual property rights of another person, defames, violates a third party’s right of publicity or privacy, or does not comply with applicable law, and an end user purchased such Content within a year before the date of takedown: (i) Developer must refund to CHUG all amounts received, plus any associated fees (i.e. chargebacks and payment transaction fees), and (ii) CHUG may, at its sole discretion, withhold from Developer’s future sales the amount in subsection (i) above.
6.3 Notwithstanding the foregoing, at all times, the placement of Content on the Marketplace shall be at CHUG’s sole discretion.
7. Privacy and Information
8. Terminating this Agreement
8.1 This Agreement will continue to apply until either CHUG or Developer terminates it as set forth herein.
8.2 Either party may terminate this Agreement upon thirty (30) days prior written notice to the other (unless this Agreement terminates under Section 14.1).
8.3 CHUG may at any time upon written notice to Developer, terminate this Agreement with Developer if:
- (a) Developer has breached any provision of this Agreement; or
- (b) CHUG is required to do so by law; or
- (c) CHUG decides to stop providing the Marketplace.
9. DISCLAIMER OF WARRANTIES.
DEVELOPER EXPRESSLY UNDERSTAND AND AGREES THAT DEVELOPER’S USE OF THE MARKETPLACE IS AT DEVELOPER’S SOLE RISK AND THAT THE MARKETPLACE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. CHUG FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
DEVELOPER EXPRESSLY UNDERSTANDS AND AGREES THAT CHUG, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO DEVELOPER UNDER ANY THEORY OF LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY DEVELOPER, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT CHUG OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
To the maximum extent permitted by law, Developer agrees to defend, indemnify and hold harmless CHUG, its affiliates and their respective directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (a) Developer’s use of the Marketplace in violation of this Agreement, and (b) Developer’s Content that infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy.
12. Changes to the Agreement.
CHUG may make changes to this Agreement at any time by sending the Developer notice by email describing the modifications made. Developer should look at the Agreement, and check for notice of any changes, regularly. Changes will not be retroactive. They will become effective, and will be deemed accepted by Developer, (a) immediately for those who become Developers after the notification is posted, or (b) for pre-existing Developers, on the date specified in the notice, which will be no sooner than 30 days after the changes are posted (except changes required by law which will be effective immediately). If Developer does not agree with the modifications to the Agreement, Developer must terminate Developer’s use of the Marketplace, which will be Developer’s sole and exclusive remedy. Developer agrees that Developer’s continued use of the Marketplace constitutes Developer’s agreement to the modified terms of this Agreement.
13. End User License Agreement.
The Standard EULA includes the following end user license terms. If Developer does not include a Developer EULA, these terms will constitute the entire EULA between Developer and user (“You”):
Rights and Restrictions – End User License Agreement
Your use of Content will be governed by the terms and conditions of an end user license agreement between you and the Developer of the Content (a “EULA”). The EULA for Content includes the terms set forth below (the “Standard EULA”) and any additional end user license terms included with or in the Content (the “Developer EULA”). If there is a conflict between the Standard EULA and the Developer EULA, the Standard EULA will control provided that the Developer EULA may contain additional restrictions, limitations, and disclaimers. The Developer has the right to enforce the EULA against you. If you do not want to comply with the EULA for Content, you must not use that Content. CHUG is not a party to the EULA for any Content (unless CHUG is the Developer of such Content). The Standard EULA includes the following end user license terms, and if the Content does not include a Developer EULA, these terms will constitute the entire EULA between you and the Developer:
(i) The Developer is the licensor of the Content.
(ii) If the Content does not include a Developer EULA that specifies Content license rights, Developer grants you a limited, nontransferable license to download and use the Content only for legitimate business purposes in user’s own internal business operations.
(iii) Any information that Developer collects from you or your device will be subject to any Developer EULA, privacy notice, or similar terms that the Developer makes available to you, and will not be subject to the CHUG Privacy Notice.
(iv) You may not modify, reverse engineer, decompile or disassemble the Content in whole or in part, or create any derivative works from or sublicense any rights in the Content, unless the Developer expressly authorizes such actions in writing provided that if the Content is a “form” (as that term is understood within the community of Centricity users), you may modify such form as is necessary for user’s internal business purposes. You may not sell, rent, lease, transmit, or distribute any such modified forms in any manner.
(v) The Content is protected by copyright and other intellectual property laws and treaties. Unless otherwise expressly stated in the Developer EULA, Developer or its licensors own all title, copyright and other intellectual property rights in the Content, and the Content is licensed, not sold.
(vi) You acknowledge and agree that CHUG has no responsibility or liability with respect to your use of the Content or any content or functionality in the Content.
(vii) You may not sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense or transfer or assign any Content or your rights to Content to any third party without the express written consent of the Developer.
(viii) You may not use Content as part of any service for sharing, lending or multi-person use or for the purpose of any other institution, without the express written consent of the Developer and only in the exact manner specified and enabled by CHUG and/or the Developer.
(ix) You may not attempt to, nor assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption that protect, obfuscate or otherwise restrict access to any Content or CHUG Marketplace. If you violate any security feature, you may incur civil or criminal liability.
(x) You may not remove any watermarks, labels or other legal or proprietary notices included in any Content.
(xi) Content developers may from time to time place limits on the number of Devices and/or software applications you may use to access Content. Such developers may record and store the unique device identifier numbers of your Devices in order to enforce such limits.
(xii) If you violate any of the terms and conditions of the Terms or EULA, your rights under the license granted herein will immediately terminate and CHUG may terminate your access to CHUG Marketplace, the Content and/or your CHUG account without refund to you.
DEVELOPER AND CHUG SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXPENSE OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR DAMAGE TO ANCILLARY OR ATTACHED EQUIPMENT OR COMPONENTS THEREOF OR FOR LOSS OR NON-RECOVERABILITY OF ANY DATA OR STORED INFORMATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WITH THE USE OF THE CONTENT. DEVELOPER’S AND CHUG’S LIABILITY, IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WITH THE USE OF THE CONTENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE CONTENT TO WHICH THE CLAIM RELATES. THESE LIMITATIONS WILL APPLY TO YOU EVEN IF THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
DEVELOPER AND CHUG HEREBY DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OF OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON DEVELOPER’S AND CHUG’S PART RELATING TO ANY ALLEGEDLY DEFECTIVE PRODUCT, AND DEVELOPER AND CHUG NEITHER ASSUME NOR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR DEVELOPER AND CHUG ANY OTHER LIABILITIES OR OBLIGATIONS.
14. General Legal Terms
14.1 This Agreement, along with the CHUG Terms and Conditions of Use and any other documents incorporated herein, constitutes the whole legal agreement between Developer and CHUG and governs Developer’s use of the Marketplace, and completely replaces any prior agreements between Developer and CHUG in relation to the Marketplace.
14.3 If CHUG does not enforce any right or provision in these terms, that is not to be deemed a waiver of CHUG’s right to do so in the future.
14.4 The rights granted in this Agreement may not be assigned or transferred by either Developer or CHUG without the prior written approval of the other party. Neither party shall be permitted to delegate its responsibilities or obligations under this Agreement without the prior written approval of the other party. Any other attempt to assign is void.
14.5 The obligations in Sections 5, 8, 9, 10, 11, and 14 will survive any expiration or termination of this Agreement.