Welch Allyn, Inc., a Hillrom company and part of Baxter International Inc. ("hereinafter Baxter"), owns and operates the Hillrom On Tour Application and Hillrom On Tour Website (collectively referred to as the "Application”). "You" and "Your" refer to the end-user of the Application or to the person or entity accepting the End-User Terms of Use (the “Terms of Use”) on behalf of the end-user, and the terms "We," "Us" and "Our" refer to Baxter.
These Terms of Use are a binding contract between You, as either an individual end-user, or person or entity, and Baxter and/or its applicable affiliates. By downloading, installing, obtaining a license key or otherwise accessing or using the Application, You acknowledge that You have read this Terms of Use, that You understand it, and that You accept and agree to be bound by its terms. If You are accepting this Terms of Use on behalf of an individual or entity,then You represent and warrant that You have the power and authority to bind such individual or entity to these terms.
Your continued access and use of the Application is conditional on Your acceptance of and continued compliance with the terms and conditions of use set out below. These Terms of Use will govern Your access and use of any new features of the Application.
By accessing, browsing, or using the Application, You agree to accept and comply with these Terms of Use for each visit to the Application. If You do not agree to accept and comply with these Terms of Use, You should not access, browse or use the Application.
We reserve the right, at any time, to modify, alter, or update these Terms of Use, and You agree to be bound by such modifications, alterations, or updates ("Modification"). Such Modification will be effective immediately upon notice to You, which notice may be given by any means, including, but not limited to, posting on the Application and electronic or conventional mail. Your access and use of the Application following any such Modification constitutes Your agreement to accept and comply with these Terms of Use as modified. These Terms of Use apply to all users of the Application.
1. APPLICATION
1.1 Term and Termination.
The Application is intended for use during Your evaluation of Baxter’s products and equipment, as part of an early experience program (“Early Experience Program”). License to use the Application shall be valid for duration of Early Experience Program and shall be deemed immediately terminated upon the conclusion of the Early Experience Program and return of Baxter’s products and equipment.
1.2 General Limitations on Use of Application.
You may use the Application solely for Your internal business purposes and as described in these Terms of Use. You may not:
(a) sell, resell, license, sublicense, or lease the Application to any person other than You and Baxter (“Third Party”)
(b) may not give Third Parties access to the Application
(c) use the Application to provide services to or for any Third Party (e.g. an application service provider, to process data for a Third Party);
(d) use the Application for developing, or assisting others in the development, of solutions that compete with or that are directly substitutable for the Application, or products that compete with Baxter;
(e) use or attempt to use the Application for any purposes that are contrary to Applicable Law;
(f) disrupt any other authorized use of any Solution; or
(g) provide Your access credentials to any to any party that is not authorized by You to access and use the solution (“Authorized User”). As used in these Terms of Use “Applicable Law” or “Law” means, to the extent applicable to either Party or these Terms of Use, laws (constitutional, statutory, case, common, code), regulations, directives and orders and all governmental authorities and regulatory authorities and decrees of all courts, tribunals.
1.3 GRANT AND RESTRICTIONS ON USE.
All information, including, without limitation, all text, design, graphics, drawings, photographs, advertisements, video clips, music and sounds, and all trade-marks, service marks and trade names and the selection and arrangements thereof (collectively, "Application Content") is, unless otherwise noted, subject to intellectual property rights including copyrights and trademarks held by or licensed by Baxter. Except as expressly provided in these Terms of Use, no license to use, copy, distribute, republish, transmit or otherwise exploit any Application Content is given to You and all intellectual property rights in and to the Application Content are expressly reserved to Hillrom. Nothing on the Application will be construed as granting, by implication, waiver, estoppel, or otherwise, any license or right to use any Hillrom trademark or Application Content or Intellectual Property without Our written permission. Neither the name of Hillrom nor Our logo may be used in any way without Our prior written permission. You are not authorized to use Our logo as a hyperlink to the Application without Our prior written permission.
1.4 ACCEPTABLE USE.
You are prohibited from (i) impersonating any person, or misrepresenting Your identity or affiliation with any person or organization; (ii) disrupting the normal flow of the Application, including any dialogue on the Application, or otherwise acting in a manner that negatively affects other users; (iii) posting or transmitting executable programming of any kind, including viruses, spyware, trojan horses, easter eggs, or any other form of computer programming or disabling mechanism; (iv) using any robot, spider or other automatic program or device, or manual process, to monitor, copy, summarize, or otherwise extract information (including Application Content) from the Application, in whole or in part, including, without limitation, creating any frames at any other website about any portions of the Application; and (v) infringing any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person, or violating the legal rights (including the rights of publicity and privacy) of Baxter or others.
2. PROPRIETARY RIGHTS.
2.1 Rights of Baxter. As between You and Baxter, all right, title and interest in and to the Application and Baxter’s confidential information, including all Intellectual Property Rights, belong to and are owned by Baxter and You will not acquire any right, title or interest in the Application by virtue of these Terms of Use or use of the Application other than the limited licenses expressly granted by Baxter to You in these Terms of Use.
2.2 Your Rights. Information, data and content that is stored in, transmitted using or made available by You through Your use of the Application (”Your Data”), will be protected by Baxter according to applicable data privacy laws.
Notwithstanding the foregoing, You agree that the Application is not deemed for and shall not be used to store, transmit or make available personal data and/or protected health information, being the Application’s sole and primary purpose to collect Your feedback and evaluation comments about of Baxter’s products and equipment, as part of an Early Experience Program. Moreover, You hereby grant to Baxter a non-exclusive, royalty free, perpetual, fully-paid, worldwide, sub-licensable license to use, copy, modify, deploy, distribute, de-identify, and exploit for any lawful purpose Your Data, including but not limited to improving Baxter products, equipment, services, and businesses based on your Data. If Your Data that is protected health information personnel, agents, contractors and service providers of the restrictions contained in this Section.
2.4 “Intellectual Property Rights” or “Intellectual Property” means (i) all patents (including originals, divisionals, continuations, continuations-in-part, extensions, foreign applications, utility models and re-issues), patent applications, copyrights (including all registrations and applications for such protection), trade secrets, trademarks, trademark applications and other proprietary and intellectual property rights, including moral rights; and (ii) with regard to Baxter’s assignment of Intellectual Property Rights under these Terms of Use, the exclusive right to make copies, prepare derivative works, publish, publicly perform, and publicly display the foregoing in (i) with full rights to authorize others to do the same.
2.5 Open Source Software. The Application may include software known as free and open source software (“FOSS”) (i) for which Baxter does not claim copyright ownership for the source code, and (ii) which source code is made freely available to the general public. Baxter uses and supports the use of FOSS. Where required, a copy of FOSS code is available on the Baxter’s FOSS website. Notwithstanding anything to the contrary, Baxter’s disclaimer of warranty and limitation of liabilities as set forth herein will apply to FOSS.
3. LEGAL COMPLIANCE OBLIGATIONS
3.1 Compliance with Applicable Law. The Parties will comply with all Applicable Law, including any data privacy laws. In its use of the Application or with respect to Your Data, You may not take or fail to take any action that causes Baxter or the Application to be in violation of Applicable Law.
3.2 Statutory and Regulatory Changes. If changes in Applicable Law materially adversely affect the rights of a Party under these Terms of Use, the Parties will meet and use good faith and commercially reasonable efforts to consider modifications to these Terms of Use to account for the changes in Applicable Law, while preserving, as nearly as possible, the relative economic rights and substantive duties of the Parties under these Terms of Use.
3.3 Commitment to Information and Data Protection. You agree to use no less than reasonable and, for its industry customary, practices to protect the privacy and security of i of Baxter reasonably apparent to be confidential that might come within Your control, possession or knowledge in connection with Your use of the Application.
3.4 Security/Privacy Breach. If You become aware of or suspects that there has been an actual or potential unauthorized acquisition, accessing, use, alteration, disclosure, compromise or loss of any protected information associated with or in connection with Your use of the Application (a “Data Breach”), You must promptly notify Baxter of the Data Breach and take all actions required by Applicable Law, including any data privacy Laws. You acknowledge that Baxter has no responsibility from, and You release Baxter from all liability for, any Data Breach that is associated with or that is in connection with Your use of the Application.
3.5 Access. You will provide Baxter with access to all information, documents, systems, equipment and technology reasonable or necessary for Baxter to perform its obligations under these Terms of Use or that are reasonably related to Your use of the Application. The Parties agree that this access will be subject to Applicable Law and the provisions of these Terms of Use pertaining to Your Confidential Information.
4. PERFORMANCE STANDARDS AND OTHER RESPONSIBILITIES.
4.1 General Performance Warranty. Baxter warrants that the Application, as provider to You or performed for You, will perform in all material respects the functions specified in these Terms of Use and in Baxter’s then-current Documentation. Baxter will not be responsible for a failure of the Application to meet the warranty in this Section if the failure is caused by or at least in part attributable to: (i) Your breach of these Terms of Use; (ii) Your use of the Application in an unreasonable or unauthorized manner; or (iii) Application, equipment or services other than those provided by Baxter to You. Baxter will not have responsibility or liability to You under this Section if (a) at the time You is in breach of these Terms of Use, including Your obligations in Section 7.4, or (b) You or any Third Party has modified the Application. Any liability of Baxter for a breach of the warranty in this Section will be solely to You. THE ABOVE IS THE ONLY WARRANTY FROM BAXTER - BAXTER HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.2 Your Data. Despite anything to the contrary in these Terms of Use, Baxter will have no responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, or the Intellectual Property Rights with respect to or rights to use the You Data; instead, You will bear all responsibility for these matters. Baxter will not be responsible or liable for Your deletion, correction, destruction, damage, loss or failure to store or protect any You Data. Under no circumstances will Baxter have any responsibility, directly or indirectly, with regard to the treatment of patients and/or to the protection of personal data or protected health information.
4.3 Your Responsibilities. Once Baxter has provided You with Your initial password to access the Application for the first time, You will immediately update the password and safeguard the updated password from unauthorized use or access. During the term of these Terms of Use, You will: (a) follow all installation, operation and maintenance instructions provided by Baxter; (b) provide a proper system environment that is consistent with any standards promulgated by Baxter, a compliant electrical and telecommunications infrastructure, and a suitable network having Wi-Fi connectivity configured for smartphone utilization as recommended by Baxter throughout Your facilities; (b) provide and create suitable access to Your computer systems, sensors, alerts, alarms, and other medical devices; (c) perform regular system and server backups, including proper periodic copying of and retention of You Data as required by Applicable Law and reasonable and customary industry practices, You policy or otherwise; and (d) implement adequate security, procedural, and technical safeguards which conform with Applicable Laws, to prevent improper use, destruction, or disclosure of the information being transmitted or retained as well as conformance and compliance with other Laws applicable to healthcare providers. YOU AGREE THAT YOU WILL NOT INPUT OR ENTER ANY PATIENT INFORMATION, INCLUDING ANY PROTECTED HEALTH INFORMATION, OR OTHER PERSONALLY IDENTIFIABLE INFORMATION INTO THE APPLICATION.
4.4 Force Majeure. Hillrom will not be liable for any loss or delay resulting from any event that is beyond thereasonable control of Baxter including acts of God, fire, flood, epidemic, pandemic or quarantine restrictions, catastrophic weather events, other natural disasters, terrorism, war or military hostilities, loss of internet, broadband or Wi-Fi connectivity or services, unexpected scarcity or unavailability of parts or components, inability of carriers to make scheduled deliveries, labor stoppage, strikes, riots, or civil commotion, freight or other embargoes. Baxter’s inability to cause the Application to operate or to provide services because of such conditions will not constitute a breach of these Terms of Use.
5. LIMITATION OF LIABILITY.
BAXTER WILL NOT BE LIABLE FOR ANY LOSS OF BUSINESS, POTENTIAL BUSINESS, REVENUES OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES OR, OTHER THAN AS SET FORTH IN THESE TERMS OF USE, FOR CLAIMS OR DAMAGES MADE BY YOU OR ANY OTHER PERSON OR ENTITY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN OR UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THESE TERMS OF USE AND THE APPLICATION. IN NO EVENT WILL BAXTER’S LIABILITY EXCEED THE AMOUNT ACTUALLY PAID TO BAXTER BY YOU UNDER THESE TERMS OF USE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR LIABILITY ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, FRAUD AND ANY OTHER TORT. BAXTER WILL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, YOUR DATA, FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, NEGLIGENCE, FRAUDULENT MEANS OR DEVICES.
6. AUTHORIZED USERS
6.1 Only Your Authorized Users may have access to the Application. The following may never be Authorized Users: (a) You employees that are not expressly authorized to use the Application by You for the sole purposes of exercising Your licensed rights; (b) Third Parties (for example, consultants, contractors, personnel from other companies) except Approved Third Party Providers; or (c) particular Persons that Baxter, by name, has prohibited from using the Application for any other reason.
6.2 Numbers/Types of Permissible Users. Baxter licenses the Application based on a “Concurrent User” license. A Concurrent User license allows multiple Concurrent Users to share access to and use the Application, if the number of Concurrent Users accessing the Application at any time does not exceed the total number of licensed Concurrent Users set forth on the purchase order (“Licensed Capacity”). You will immediately notify Baxter in writing of any increase in use beyond the Licensed Capacity. You must obtain additional licenses for any increase in Licensed Capacity.
7. SUPPORT SERVICES.
Baxter will not provide You technical support of the Application during the term of this Terms of Use.
8. ACCESS AND ACCOUNT TERMINATION.
Baxter may cease Your access to the Application and terminate these Terms of Use if: (1) You are in breach of your obligations under these Terms of Use, or (ii) You make an unauthorized assignment of your rights under these Terms of Use.
9. DISPUTE RESOLUTION; GOVERNING LAW AND JURISDICTION.
9.1 Illinois Law Governs. These Terms of Use, without limitation, as to arbitration and as to injunctive and provisional relief will be solely governed by and interpreted in accordance with the laws of the State of Illinois, U.S.A., without regard to principles of conflicts of laws, whether designated by federal or state laws, and in all instances without regard to the United Nations Convention on Contracts for the International Sale of Goods.
9.2 Arbitration. All disputes arising out of the Agreement will be finally settled under the Rules of Arbitration of the Inernational Chamber of Commerce (the “Rules”) by one or more arbitrators appointed in accordance with the Rules in effect as of the date of the Agreement. In all arbitrations in which the amount in dispute is less than US$2 million, a sole arbitrator will preside over an expedited arbitration. The place of arbitration will be Chicago, Illinois, United States. The hearing and any other in-person meetings will take place in Chicago, Illinois, unless the Parties agree otherwise. The arbitral tribunal will determine the rights and obligations of the Parties in accordance with the substantive laws of the State of Illinois. The arbitration will be conducted in the English language. The Parties agree that discovery will be limited and will be handled expeditiously, by reference to the IBA Rules on the Taking of Evidence in International Arbitration. The arbitral panel will have the power to consider any defense that all or part of the claims being asserted in the arbitration are not timely because of any applicable statute of limitations. Each party declares that it has entered into this arbitration covenant freely and voluntarily to have the benefits of an alternative dispute resolution method.
10. ENTIRE AGREEMENT.
These Terms of Use constitute the sole and entire agreement between You and Us with respect to the Application and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the Application.
