INDEPENDA END USER LICENSE AGREEMENT (EULA) FOR CAREGIVERS
PLEASE READ THESE TERMS OF END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY INDEPENDA, INC. (“INDEPENDA”). THIS EULA SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR EACH CAREGIVER’S (AS DEFINED BELOW) USE OF THE INDEPENDA SERVICE, INCLUDING, WITHOUT LIMITATION, ANY OTHER FEATURES, CONTENT, WEBSITES OR APPLICATIONS OFFERED FROM TIME TO TIME BY INDEPENDA IN CONNECTION THEREWITH (COLLECTIVELY “SERVICE(S)”). BY CLICKING ON THE “ACCEPT” BUTTON BELOW, CAREGIVER ACKNOWLEDGES THAT CAREGIVER HAS READ AND UNDERSTANDS THE FOLLOWING TERMS AND AGREES TO BE BOUND BY AND BECOME A PARTY TO THIS EULA. IF CAREGIVER DOES NOT AGREE TO ALL OF THE TERMS OF THIS EULA, INDEPENDA IS UNWILLING TO GRANT CAREGIVER THIS LICENSE AND CAREGIVER SHOULD EXIT THE SERVICE AND CEASE ALL USE OF THE SERVICE.
Service and Registration Process
The Service contains a variety of offerings relating to information management, reminders, and health status tracking. Independa’s Service is designed to assist family members and other caregivers (each a “Caregiver”) in helping to manage certain needs of their senior loved ones and care recipients (each a “Care Recipient”). In order for a Caregiver to receive Independa’s Service, Independa must first have entered into a separate written enterprise agreement (“Enterprise Agreement”) with the entity that is responsible for the facility where the Care Recipient resides (the “Enterprise”). The Enterprise Agreement will authorize the Enterprise to provide access to the Service to the Caregiver (on behalf of the Care Recipient). Each Caregiver must register for the Service on behalf of such Caregiver and the relevant Care Recipient, and such Caregiver must have authorization from the Care Recipient to undertake such activities and to agree to this EULA on the Care Recipient’s behalf. Each Caregiver hereby represents and warrants that (i) he or she has express authority and consent from the Enterprise and the relevant Care Recipient to enter into this EULA and register for the Services on that Care Recipient’s behalf, and (ii) if at any time Independa is notified that such authority or consent does not exist or has been withdrawn, Independa reserves the right to promptly terminate Caregiver’s use of the Service (without any right of refund).
Independa may, from time to time, agree with the Enterprise to amend the Enterprise Agreement, and such amendment may affect Caregiver’s rights regarding the Service. If such amendment adversely affects Caregiver’s rights in a material manner, Caregiver shall be informed about such amendment, and Caregiver may either continue to use the Service (subject to such amendment) or terminate this EULA upon written notice to the Enterprise and Independa – such termination to be effective 5 business days following Independa’s receipt of such termination notice. In such event, Independa shall terminate Caregiver’s access to the Service as of the effective date of termination; however, in no event shall Caregiver be entitled to any refund from Independa of any pre-paid amounts – Caregiver must look solely to the Enterprise for any such refund.
Caregiver shall provide Independa with accurate, complete, and updated registration information, and Caregiver is solely responsible for activity that occurs on Caregiver’s account and for maintaining the security of Caregiver’s Independa password. Caregiver shall never use another user’s account without such other user’s express permission, nor shall Caregiver permit anyone other than Caregiver and the Care Recipient (or anyone expressly authorized by the Care Recipient) to use the Caregiver’s account. If Caregiver supports multiple Care Recipients, each one must have a separate account – in no event may one account be shared by Care Recipients. Caregiver will immediately notify Independa in writing of any unauthorized use of Caregiver’s account, or any other account-related security breach, of which Caregiver becomes aware. Caregiver acknowledges that the Service is available only to individuals who are at least 18 years old, and Caregiver shall ensure that no one under 18 years old is permitted to use Caregiver’s account or the Service.
License to Use the Service; Ownership of Service
Subject to Caregiver’s compliance with the terms of this EULA, including but not limited to payment of applicable fees to the Enterprise, Independa hereby grants Caregiver, during the term of this EULA, a non-exclusive and non-transferable license to access and use the Service, and to provide the Service to Care Recipients, solely as permitted in this EULA. Notwithstanding anything expressed or implied in this EULA, all software provided by Independa hereunder in connection with the Service is licensed and not sold to Caregiver, and any reference to the “purchase” or “sale” or software means the purchase or sale of a license to such software. No title to or ownership in the Service or any related documentation is transferred to Caregiver under this EULA. Title to and all applicable rights in patents, copyrights and trade secrets, and all other intellectual property rights in the Service and any related documentation, including but not limited to the format of screens and reports associated with the Service, shall remain in Independa or other third parties from whom Independa has obtained rights to license the Service. Except as may be expressly permitted in writing by Independa, Caregiver shall not provide, or otherwise make available, the Service or any related documentation, or copies thereof, to any third party.
Use of Information and Data Provided by Caregiver
Not Medical Advice
Caregiver acknowledges and agrees that Independa does not offer medical advice or diagnoses or engage in the practice of medicine. Independa’s Service is not intended to be a substitute for professional medical advice, diagnosis, or treatment and is offered for informational purposes only. Caregiver further acknowledges and agrees that Caregiver must always seek the advice of Care Recipient’s physician or other qualified health provider with any questions regarding Care Recipient’s medical condition or the use (or frequency) of any medication for Care Recipient. Caregiver agrees to never disregard professional medical advice or delay in seeking it because of something Caregiver has read in connection with our Service.
Caregiver understands that the Services are entirely dependent upon the accuracy and completeness of the information provided by Caregiver to Independa. Caregiver is solely responsible for any decisions or actions Caregiver takes based on the information and materials available through the Service. Caregiver expressly agrees that any reliance on any information provided by Independa or in connection with the Service is solely at Caregiver’s own risk.
Caregiver agrees that if Caregiver thinks Care Recipient may have a medical emergency, Caregiver will call Care Recipient’s doctor or 911 immediately.
Third Party Services
Independa may make third-party services available through the Service. In order to use a specific service, Caregiver may choose to allow a third-party service provider to retrieve, provide, and/or modify information in Caregiver’s account or otherwise share Caregiver’s information with the service provider. Once Caregiver enables a specific third-party service provider to access Caregiver’s account, the service provider may continue to access Caregiver’s account until Caregiver affirmatively disables access. It is Caregiver’s sole responsibility to review and approve each such third-party service with which Caregiver wishes to engage through the Service.
Independa is not responsible for and does not endorse any such third-party content or services, including, without limitation any health care providers, products, tests, procedures, services, opinions, or web sites accessed or mentioned on the Service. CAREGIVER ACKNOWLEDGES AND AGREES THAT ANY AND ALL USE OF ANY THIRD PARTY SERVICES IS SOLELY AT CAREGIVER’s OWN RISK.
Rules and Conduct
As a condition of the license granted by Independa to Caregiver hereunder, Caregiver understands and agrees that Caregiver shall not to use the Service for any purpose that is prohibited by this EULA or other rules or policies implemented by Independa from time to time. The Service (including, without limitation, any Content) is provided only for Caregiver’s own personal, non-commercial use, and for use on behalf of the Care Recipient. For purposes of this EULA, the term “Content” includes, without limitation, any information, data, text, photographs, videos, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by Independa or third parties on or through the Service. By way of example, and not as a limitation, Caregiver shall not (and shall not permit any third party to) take any action that: would constitute a violation of any applicable law, rule or regulation; infringes any intellectual property or other right of any other person or entity; is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; or impersonates any person or entity (including, without limitation, another user of the Service). Independa reserves the right to remove any Content from the Service at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Independa is concerned that Caregiver may have violated the EULA), or for no reason at all.
Further, Caregiver shall not (directly or indirectly): (i) take any action that imposes or may impose an unreasonable or disproportionately large load on Independa’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures Independa may use to prevent or restrict access to the Service (or parts thereof); (iv) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction; (v) modify, translate, or otherwise create derivative works of any part of the Service; or (vi) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that Caregiver receives hereunder.
Fees and Payment
Caregiver agrees to timely pay all applicable fees in connection with Caregiver’s use of the Service. Independa reserves the right to change its fees and to institute new charges, as set forth in Independa’s agreement with the Enterprise. The Enterprise shall inform Caregiver regarding any such changes to fees or new charges, and Caregiver shall be responsible for such payments as agreed-upon between the Enterprise and Caregiver.
The term of this Agreement shall be the time period that Caregiver has negotiated with the Enterprise in Caregiver’s agreement with the Enterprise. Independa may terminate this EULA, or suspend Caregiver’s access to all or any part of the Service, at any time if Caregiver (or a Care Recipient) fails to comply with the terms set forth in this EULA. Caregiver understands and agrees that if Independa terminates such access, it may result in the forfeiture and destruction of all information associated with Caregiver’s subscription, and it will immediately terminate Caregiver’s and the Care Recipient’s ability to use the Service in any way. If Caregiver wishes to terminate its account with Independa and this EULA, Caregiver may do so by following the instructions provided to Caregiver by the Enterprise regarding termination of the Service. Caregiver acknowledges and agrees that Independa shall not refund any pre-paid fees; any right of refund that Caregiver may have shall be determined by Caregiver’s agreement with the Enterprise. All provisions of this EULA which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, indemnity, limitations of liability, governing law and general terms.
Warranty Claims Regarding the Service to be Brought only to the Enterprise
Caregiver agrees to bring all warranty claims regarding the Service, or Independa’s performance in connection with the Service, solely to the Enterprise, and not to Independa or any of Independa’s suppliers. The Enterprise will coordinate all warranty claims with Independa.
Limited Warranty and Disclaimer
Independa, warrants that during the term of the Agreement, the Service will perform, in all material respects, in conformance with its specifications. For any breach of the foregoing warranty, Independa’s sole liability, and Caregiver’s sole and exclusive remedy, shall be for Independa to promptly correct such material non-conformance, or, if Independa cannot correct such material non-conformance in a timely manner, then Caregiver may, through the Enterprise, terminate this EULA and the Enterprise will refund to Caregiver any pre-paid amounts for the Service, prorated for any months where Caregiver received performance of the Service in conformance with this warranty. EXCEPT FOR THE FOREGOING EXPRESS LIMITED WARRANTY, THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) IS PROVIDED "AS IS" AND "AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ARE EXPRESSLY DISCLAIMED. CAREGIVER AGREES THAT ALL USE OF THE SERVICE IS SOLELY AT CAREGIVER’S OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CAREGIVER IN THEIR ENTIRETY.
Caregiver shall defend, indemnify, and hold harmless Independa, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, losses, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to (i) Caregiver’s misuse of, or unauthorized access to, the Service, or (ii) Caregiver’s violation of the terms of this EULA or any applicable law, contract, policy, regulation or other obligation. Independa reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Caregiver, in which event Caregiver will assist and cooperate with Independa in connection therewith.
Limitation of Liability
IN NO EVENT SHALL INDEPENDA, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR SUBSTITUTE GOODS OR SERVICES, (II) FOR CAREGIVER’S RELIANCE ON THE SERVICE (III) FOR ANY DIRECT DAMAGES IN EXCESS (IN THE AGGREGATE) OF THE FEES RECEIVED BY INDEPENDA FROM THE ENTERPRISE FOR CAREGIVER’S SUBSCRIPTIONS TO THE SERVICE OR (IV) FOR ANY MATTER BEYOND INDEPENDA’S REASONABLE CONTROL. THIS LIMITATION OF LIABILITY SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CAREGIVER IN THEIR ENTIRETY.
This EULA shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, or any other rules that would result in the application of a different body of law. Any dispute arising from or relating to the subject matter of this Agreement, which is not to be directed to the Enterprise as set forth herein, shall be brought in a state of federal court located in San Diego County, California, and each party agrees to the exclusive jurisdiction and venue of such courts. The prevailing party in the court action shall be entitled to receive reimbursement of its reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief.
This EULA is the complete and entire agreement between Caregiver and Independa with respect to the Service, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Caregiver and Independa with respect to the Service. If any provision of the EULA is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the EULA will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. This EULA is personal to Caregiver, and is not assignable or transferable by Caregiver except with Independa's prior written consent. Independa may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of this EULA and neither party has any authority of any kind to bind the other in any respect. All notices under this EULA will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or two days after it is sent, if sent for next day delivery by recognized overnight delivery service.