EVERBRIDGE HIPAABRIDGE USER AGREEMENT
Please read this Everbridge HipaaBridge User Agreement (this “Agreement”) carefully before accessing, downloading or using the Services (as defined below). The Everbridge HipaaBridge™ solution is an Everbridge, Inc., a Delaware corporation (“Everbridge”) product. Everbridge is only willing to grant you access to the Services upon the condition that you accept all of the terms contained herein. By accessing, downloading or using the Services, you agree to be bound by the terms of this Agreement. If you do not agree to these terms, do not access, download or use the Services or immediately remove and delete the Services if you have already downloaded it. If you are an employee, consultant or contractor acting on behalf of an entity, your agreement to these terms will be deemed to be the agreement of that entity. You and/or any entity for which you act on behalf of (“you”, and/or “Client”) represent and warrant that you have authority or have been provided authority to bind the entity to the terms and conditions of this Agreement. You and Everbridge are sometimes each referred to herein as a “party” or “parties”.
If you are deemed to have ordered the Services, Everbridge’s acceptance is expressly conditioned on your assent to these terms to the exclusion of all other terms (specifically including any new or different terms contained in a purchase order). Notwithstanding anything to the contrary in this Agreement, if you and Everbridge have executed a written Client services agreement (“Client Services Agreement”) that governs access to or use of the Services, then the terms of the Client Services Agreement shall govern and control to the extent there is a direct conflict between the terms of this Agreement and the terms of the Client Services Agreement.
1. PERMITTED USE; RESTRICTIONS
1.1 Subject to the terms and conditions of this Agreement, during the applicable Term (as defined below), Everbridge grants to you a non-exclusive, non-transferable and non-sublicensable right for you to access, download and use the Services in conjunction with your internal business purposes and in accordance with Everbridge’s applicable documentation. “Services” means (i) one or more mobile or web based proprietary communications solutions; (iii) any of Everbridge’s websites or webpages, and (iv) all other software, applications, application programming interface, proprietary computer programs, documentation relating to any of the foregoing, updates, upgrades, maintenance releases, or bug fixes provided by Everbridge in any form or media.
1.2 Other than as expressly set forth in this Agreement, Everbridge grants to Client no license or other rights in or to the Service, software or any other proprietary technology, material or information made available to Client through the Service or otherwise in connection with this Agreement (collectively, the “Everbridge Technology”), and all such rights are hereby expressly reserved. Everbridge (or its licensors where applicable) owns all rights, title and interest in and to the Service, and any Everbridge Technology, and all patent, copyright, trade secret and other intellectual property rights (“IP Rights”) therein, as well as (i) all feedback and other information (except for Client Data) provided to Everbridge by you, and (ii) all transactional, performance, derivative data and metadata generated in connection with the Services.
1.3 You are granted permission to access, download and use the Services, provided that you are at least 18 years of age or older. You are responsible for all activity occurring under your Client account and shall comply with all applicable laws and regulations in connection with your use of the Services, including the provision of Client Data (as defined below) to Everbridge. Client shall use the Service in accordance with Everbridge’s then applicable Acceptable Use Policy posted on www.everbridge.com. Client shall promptly notify Everbridge of any unauthorized use of any password or account or any other act or omission that would constitute a breach or violation of this Agreement.
1.4 A violation of any of the terms in this Agreement may result in the termination of your Everbridge account and your inability to access or use the Services. In addition, we reserve the right to refuse service to anyone for any reason at any time. We may (but have no obligation to) remove content and accounts containing content that we determine, in our sole discretion, is unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable. While Everbridge prohibits certain conduct and content, you understand and agree that Everbridge is not responsible for the content transmitted between users of the Services. Notwithstanding Everbridge’s governing terms and conditions, you acknowledge that you may still be exposed to offensive or unlawful content and agree you assume these risks and use the Services at your own risk. Everbridge reserves the absolute right to reclaim names and keywords from you and others on behalf of businesses or individuals that may a hold legal claim or a trademark right in those words, as determined by us in our sole discretion. “HipaaBridge”, “Everbridge” and other Everbridge graphics, logos, designs, page headers, button icons, scripts and service names are trademarks in the United States and other countries. Our trademarks and trade dress, as well as third party trademarks, logos and service marks used in conjunction with the Services, may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Everbridge.
2. CLIENT ACKNOWLEDGEMENT
You represent and warrant that you fully understand and acknowledge that (i) the Services are intended to deliver non-critical, non-emergency communications and information between users as a convenience to facilitate communications; (ii) the Services are dependent upon a number of factors outside the control of Everbridge, including but not limited to, the operation of third party provided hardware and network services; (iii) the Services are not a substitute for any of Client’s current procedures for administering and safeguarding medical treatment and/or medicine; (iv) there may be occasional communication failures or delays in the delivery or receipt of properly sent Everbridge communications, and (v) the Services are not intended or suitable for use in situations where the failure of, time delay of, or errors or inaccuracies in, the content, data or information provided through the Services could lead to death, personal injury or property damage.
3. SERVICE UPDATES
By using the Services, Client grants Everbridge permission to send all end users in its organization messages regarding the Services, its features, service alerts, and network activity. Notwithstanding the foregoing, it is Client’s responsibility to register for updates from, and/or regularly check Everbridge’s webpages at http://clientportal.everbridge.com/ for updates with respect to the Services. Client’s continued use of the Services after such updates will constitute its acceptance of the changes.
4. TERM AND TERMINATION
This Agreement shall be effective as of the earliest of the date you accept the terms herein or first access, download or use any of the Services (the “Effective Date”) and shall remain in effect for so long as you use or access any of the Services (the “Term”). Upon termination of the Term, you shall no longer be permitted to use or access the Services. The terms herein that contemplate obligations after the Term, including but not limited to Indemnification, Disclaimer, Limitation of Liability, Controlling Law and Severability, and Confidentiality, shall survive termination.
5. PRIVACY & SECURITY
6. SUPPORT, IMPLEMENTATION AND PROFESSIONAL SERVICES
A paid subscription for Services entitles you to the level of support included in your subscription, which shall include at a minimum, standard Everbridge customer support via email and standard customer training, including a self-onboarding email and limited implementation email support thereafter. Additional support, implementation and professional services may be purchased by you. All such additional services delivered by Everbridge shall be subject to the terms and conditions of this Agreement or your Client Services Agreement, as applicable.
7. YOUR DATA
As between you and Everbridge, you shall own all data, text, information, screen names, graphics, photos, profiles, audio and video clips, links and other content and materials that you submit, post, display and transmit using the Services, (collectively, “Client Data”), and Everbridge acknowledges that it will not acquire any rights in Client Data. Everbridge shall only use Client Data to fulfill its contractual obligations. You shall be fully liable and responsible to ensure that your Client Data does not violate any law, regulation or the terms herein. All of your Client Data will be processed and stored within the geographic limits of the United States of America.
By accessing, downloading or using the Services you agree that Everbridge may include your name in Everbridge’s list of customers that Everbridge provides to its then current or prospective customers.
9. CONFIDENTIAL INFORMATION
As used herein, “Confidential Information” means all information of a party hereto (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally, electronically, in writing, or by inspection of tangible objects (including, without limitation, documents or prototypes), that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes without limitation, all Client Data containing personally identifiable information and all Everbridge performance and security data, product roadmaps, source code, benchmark results, and technical information relating to the Services, including its pricing information. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than performance or enforcement of this Agreement without the Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
You agree to defend, indemnify and hold harmless Everbridge, its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers from and against any and all claims, charges, complaints, damages, losses, liabilities, costs and expenses (including attorneys’ fees) due to, arising out of or relating in any way to your use of, or access to, the Services.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EVERBRIDGE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SERVICES OR APPLICATIONS. INSTALLATION OF THE SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY SERVICES OR APPLICATIONS. YOU FURTHER ACKNOWLEDGE THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
2. LIMITATION OF LIABILITY
Except where prohibited by law, in no event shall Everbridge its officers, shareholders, subsidiaries, affiliates, employees, or licensors and suppliers be liable for any indirect, special, punitive, incidental, exemplary or consequential damages under this Agreement or arising out of your use of the Services, even if Everbridge has been advised of the possibility of such damages. You assume total responsibility for your use of the Services. Your only remedy against Everbridge for dissatisfaction with the Services is to stop using the Services. If, notwithstanding the terms herein, Everbridge is found liable to you for any damage or loss which arises out of or is in any way connected with your use of the Services, Everbridge’s liability shall in no event exceed $100 US Dollars. In addition to the forgoing limitations of liability, you agree that you will not join any claim against Everbridge with the claim of any other person or entity in a lawsuit, arbitration or other proceeding; that no claim you have against Everbridge shall be resolved on a classwide basis; and that you will not assert a claim in a representative capacity against Everbridge on behalf of anyone else.
3. ENTIRE AGREEMENT; MODIFICATIONS
This Agreement constitutes the entire agreement between the parties with respect to the terms and conditions governing your use and access to the Services. This Agreement supersedes and cancels all previous written or oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This Agreement prevails over any pre-printed, conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by you. This Agreement may be modified by a “click wrap” or “click accept” agreement that Everbridge incorporates into or as a condition of downloading Services after initial delivery. Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only in writing signed by both parties, or with respect to a waiver, the party waiving such condition.
The failure of either party hereto to enforce at any time any of the provisions or terms of this Agreement shall in no way be considered to be a waiver of such provisions. If any provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed deleted or revised, and the remaining provisions shall continue in full force and effect to the maximum extent possible so as to give effect to the intent of the parties.
Legal notices to be provided under this Agreement shall be delivered in writing. Notices to Everbridge shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: Everbridge, Inc., 500 North Brand Blvd., Suite 1000, Glendale, California 91203, Attention: Legal Department. For contractual purposes, you consent to receive communications from Everbridge electronically. Notices sent to you shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to the address listed on your account. All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless Everbridge is notified that the email address is invalid; (iii) three (3) business days after being deposited in the mail; or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery. Either party may change its address for receipt of notice by notice to the other party in accordance with this section.
6. EQUITABLE RELIEF
The parties agree that a material breach of this Agreement adversely affecting Everbridge’s intellectual property rights in the Services or its Confidential Information may cause irreparable injury to Everbridge for which monetary damages would not be an adequate remedy and Everbridge shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
Neither party may assign this Agreement to any third party except upon the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed; provided, that no such consent shall be required in the event of an assignment to a successor-in-interest to the business of the assigning party resulting from a merger, reorganization, or sale of all or substantially all assets. Notwithstanding the above, neither party shall assign this Agreement to any third party which is a competitor of the other party. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. Everbridge may delegate any of its obligations hereunder, provided it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement.
8. CONTROLLING LAW AND SEVERABILITY
This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The prevailing party in any action arising out of this Agreement shall be entitled to its reasonable attorneys’ fees and costs.
[Last Revised on January 19, 2015[