PLEASE READ CAREFULLY BEFORE USING PHYSIONOTES

 

This ENTERPRISE USER LICENCE AGREEMENT (the “EULA” or the "Licence") is a legal agreement between you (the "Licensee", "you" or the “Client”) and QUERYGEN TECHNOLOGIES LIMITED, a limited company, whose operational place of business is Ballincollig, Cork, Republic of Ireland, Companies Registration number 570973 ("Licensor", “Querygen Technologies” or "we") for your licenced use of and access to www.physionotes.com (the “Website” or “PhysioNotes”), the cloud based clinical assessment and reporting tool for the physiotherapy industry (the “Software”) and your access to the services provided by Querygen Technologies (the "Services") in accordance with the terms of this Agreement. (Hereinafter, unless separately referenced, the Website/PhysioNotes, the Software and the Services shall be known as the “System”.)

 

BY REGISTERING FOR AND OR DOWNLOADING DATA AND INFORMATION FROM THE SYSTEM AND YOUR SUBSEQUENT CONTINUED USE OF THE SYSTEM AND THE SERVICES, YOU CONSENT TO BE BOUND BY THIS LICENCE. BY CLICKING ON THE "ACCEPT" BUTTON ON REGISTRATION, AND AT ANY OTHER TIME ON LOGGING IN TO THE WEBSITE AND OR THE APPLICATION AND THROUGH YOUR CONTINUED USE OF THE SERVICES, YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND WHERE RELEVANT YOUR EMPLOYEES AND AFFILIATES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT REGISTER FOR THE WEBSITE OR USE ANY OF THE SERVICES. BY CLICKING THE “ACCEPT” BUTTON YOU CONFIRM THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS LICENCE AGREEMENT, THAT YOU ALSO CONSENT TO USE ELECTRONIC SIGNATURES AND ACKNOWLEDGE YOUR CLICK OF THE “ACCEPT” BUTTON AS AN ELECTRONIC SIGNATURE SUFFICIENT TO BIND YOU TO THE TERMS OF THIS LICENCE AGREEMENT.

 

1    GRANT AND SCOPE OF LICENCE

    1. General: Querygen Technologies provides you, with access to an electronic cloud-based clinical assessment and reporting tool, designed to assist you and your business to collate, collect and process data generated by the clinic in an integrated coordinated and real-time cloud based System.

 

    1. Licence: Querygen Technologies hereby grants to you a limited, non-exclusive, non-transferable, revocable, non-assignable, non sub-licensable licence and right to access the System and the Services though a generally available web browser (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of Querygen Technologies), in consideration of your strict and continued compliance with the following conditions:

 

      1. your agreement, as evidenced by your acceptance of this agreement and your continued use of the System and the Services, to abide by the terms of this Licence;
      2. your continuing compliance with the terms of this EULA and the Privacy Policy posted on the Website (which are hereby incorporated by this reference); and/or
      3. following the completion of any free trial offered to you by Querygen Technologies, your continued payment of the appropriate license fee applicable from time to time;

 

    1. Use: Any use of PhysioNotes, its Software and/or Services or any part thereof in a manner contrary to the scope and purpose of the licence is strictly prohibited and a violation of this Agreement.

 

    1. Intellectual Property: Querygen Technologies reserves all Intellectual Property rights in the System and the Services and any such Intellectual Property shall and at all times be and for all purposes remain vested in Querygen Technologies or its licensors, including all copies made of the System in accordance with Section 11. Risk in the use of the System and the Services shall pass to you as soon as you register.

 

    1. Reciprocal Licence: In return for the above licence and in order to provide the Services, you hereby grant to Querygen Technologies an unlimited, exclusive, worldwide, perpetual, assignable, sub-licensable, fully paid up and royalty free right to use, copy, prepare derivative works from, improve, distribute, publish, remove, retain, add, process, analyse and commercialise, in any way now known or in the future discovered, any data or information you provide, directly or indirectly to Querygen Technologies, including, but not limited to, any data (not to include personal or sensitive data), statistical or meta data generated by users of the Software, ideas, concepts or techniques submitted to Querygen Technologies, without the need for any further consent, notice and/or compensation to you or to any third parties. Any information you submit to us is at your own risk of loss as noted in this Agreement.

 

  1. ACCESS TO THE SERVICES

2.1.    Administrator Accounts: Querygen Technologies is offering the System and the Services solely for use by the person or entity in whose name an account is registered and not for the use or benefit of any third party. Querygen Technologies may change, suspend or discontinue any part of the System and or the Services at any time, including the availability of any feature, database, or content.

 

2.2    Clinic Accounts:

2.2.1    The preceding Section 2.1 notwithstanding, your use of the Service as Administrator shall include permission to create, link and administer a limited number of sub-accounts to the main Administrator Account, in order to facilitate the gathering and collating of data and completion of assessments (hereinafter “Clinician Accounts”). These Clinician Accounts are assigned by the Administrator, and are linked to the main Administrator Account.

2.2.2    The number of live Clinician Accounts in any one Team will be dependent upon the subscription undertaken by the Administrator. This number may be increased or decreased at the discretion of the Administrator, subject to compliance with the terms of this Agreement and payment of the relevant fees. In the event that increased access is required, please contact Querygen Technologies at support@physionotes.com.

2.2.3 The Administrator shall be responsible for ensuring Clinician Account compliance with the terms of the EULA which are relevant to them. Breach of the terms of this EULA by the Administrator or by any Clinician Account is considered a material breach of this Agreement by the Administrator and shall be governed by the terms of Section 12 (termination).

 

2.3    Account Limitation: Querygen Technologies may also impose limits on certain features of the System and the Services or restrict the Administrator’s or Clinican Account access to parts or all of the Services without notice or liability. For as long as Querygen Technologies continues to offer the System and the Services, we shall provide and seek to update, improve and expand. Therefore, Querygen Technologies reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Website, or by sending you a notice via e-mail, and you consent to receipt of such notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the System and the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. Any new features that augment or enhance the System and/or the Services currently available, including the release of new tools and resources, shall be subject to this Agreement (as updated). You can review the most current version of the EULA at any time at: www.physionotes.com/EULA.html.

 

2.4    Account Availability: Querygen will use reasonable efforts to ensure that the System and the Services are available twenty-four hours a day, seven days a week. However, access to the System and Services shall be as they may exist and be available on any given day and Querygen Technologies has no other obligation, except as expressly stated in this Agreement. There will be occasions when the System and the Services will be unavailable or interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by Querygen Technologies to minimize such disruption where it is within their reasonable control. YOU AGREE THAT QUERYGEN TECHNOLOGIES WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE SERVICE OR OTHER CONTENT. Querygen Technologies retains the right to create limits on use and storage with respect to the System and the Services in its sole discretion at any time with or without notice.

 

2.5    Content and Data Back-up: Querygen Technologies further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by Querygen Technologies to be contrary to this Agreement. For the avoidance of doubt, Querygen Technologies has no obligation to store, maintain or provide you with a copy of any content or Data that you or your Clinician Accounts or Team upload when using the System or the Services. You should download the data at regular intervals from the Website in order to ensure that all data collected is correct and up to date. An “export all” function may be accessed by the Administrator Account via their dashboard. No other subsidiary account may access or download the content of the Data without contravening the terms of this Agreement.

 

2.6    Eligibility: To be eligible to use the System and the Services, Administrators and Clinician Account holders must meet the following criteria and the Administrator hereby represents and warrants that the Administrator Account holder and all Clinician Accounts:

2.6.1    are not currently restricted from use of the System and the Services, or not otherwise prohibited from having a PhysioNotes account;

2.6.2    are not a competitor of Querygen Technologies or are not using the System and or Services for reasons that are in competition with PhysioNotes;

2.6.3    will only maintain one PhysioNotes account at any given time (unless explicitly consented to by Querygen Technologies);

2.6.4    will not violate any rights of Querygen Technologies, including intellectual property rights such as copyright or trademark rights;

2.6.5    agree to provide at your cost all equipment, software, and internet access necessary to use the System and the Services;

2.6.6    agree to comply with all data protection rules and regulations applicable at the time of use; and

2.6.7    understand and agree that use of the service may entail the application of certain incidental usage charges (“Incidental Charges”) during the installation and use of the Service. These Incidental Charges may, among others, be levied by your mobile network operator or your internet service provider. You are advised to consult your mobile data or internet data plan to identify the Incidental Charges which may be incurred prior to the installation and operation of these Services.

 

2.7    Suitability: The user certifies to Querygen Technologies that they are legally permitted to use the System and the Services, and take full responsibility for the selection and use of the System and the Services, and if applicable in the case where you are a separate legal entity such as but not limited to a limited company or partnership, your directors, partners and/or shareholders, take full responsibility for anyone delegated with and or authorised to act on behalf of the entity in respect of accessing, using and paying for access to the System and the Services, subject to prior verification at the discretion of Querygen Technologies. This Agreement is void where prohibited by law, and the right to use the System and Services are revoked in such jurisdictions. Querygen Technologies makes no claim that the Service may be lawfully used or that data may be uploaded or downloaded in any jurisdiction save the jurisdiction specified by this Agreement. Access to data or content made available via the System may not be legal by certain persons or in certain countries. If you use the Service from outside Ireland, you do so at your own risk and you are responsible for compliance with the laws of that jurisdiction. Furthermore, if you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with a detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.

 

2.8.    Privacy: Please note that privacy is very important to us. You should not enter and should also protect sensitive personal information such as your email address, phone number, street address, or other information that is confidential in nature by avoiding inputting them in fields that would present in a public manner or as identifying information. Please see our Privacy Policy which governs the manner in which your personal information is used by Querygen.

 

  1. REGISTRATION

3.1    Registration Process:

3.1.1    When registering for the use of the System and the Services, a user must provide their own full legal name, a valid e-mail address and any other information requested in order to complete the registration process to create an account (“Account”). Depending on your designation, this permits us to verify that person as the Administrator and the permitted user of the System and the Services, as well as identifying the Clinician Accounts associated with the Administrator Account, in a secure manner.

3.1.2    If an Account is created, the user agrees to provide only accurate and complete registration information and to keep that information up-to-date if it changes.

3.1.3    When a user registers, that user will be asked to generate unique log-in credential identified by way of an email address and a password (a “User Name” and “Password”). Access to the secure aspects of the Website, the Data and the Services is not authorized by any other person or entity using your User Name and Password and you are responsible for preventing such unauthorized use.

3.1.4    The Administrator will have responsibility for assigning the Clinician Accounts to the particular individuals and with administering their access through the creation of separate accounts. The Administrator Account will be able to administer these accounts through the clinic profile.

 

3.2    Access Denial: Individuals whose access to the System or use the Services has previously been terminated by Querygen Technologies or by the Administrator may not register for another account without the permission of the Administrator or Querygen Technologies, nor may a user designate such an individual to use your account on your behalf or create a Clinician Account for such an individual. Querygen Technologies expressly reserves the right not to grant access to anyone they may choose, to the Services, the System or to create an account for any reason.

 

3.3    Authentication: The Website relies on User Names and Passwords to know whether account holder or users accessing the System and utilising the Services are authorized to do so. If someone accesses the System and or the Services using a User Name and or Password that you have created or that Querygen Technologies issues to you in the event of a Password reset request to your designated email address, Querygen Technologies will rely on that User Name and Password and will assume that access has been made by you. You are recommended to change your password regularly to prevent unauthorised use. You are solely responsible for any and all access to the System or use of the Services by persons using your User Name and Password. Please notify us immediately if you become aware that your or any associated account User Name and/or Password are being used without authorization.

 

3.4:    Access Indemnity: You indemnify us and hold us harmless for all damages and Losses related to:

3.4.1    your failure to comply with the provisions of this Section 3, including, without limitation, your failure to secure your Account from third party access; and

3.4.2    breach of Data Protection Laws resulting from 3.4.1.

 

  1. AGE AND RESPONSIBILITY

4.1    Age: Any individual making use of the System or the Services must be over 18 years of age to register or utilise the System and Services.

 

4.2    Responsibility: You agree to notify us immediately of any unauthorised use of your log-on information or any other breach of security. Furthermore, all individuals using the System and Services confirm they are over the age of 18, as the Service is not intended for persons under 18. Use of the Services by an individual under 18 years of age is prohibited and we ask that you please not use the Services.

 

  1. ADMINISTRATOR UNDERTAKINGS

5.1    Undertaking: Except as expressly set out in this Licence or as permitted by any local law, you undertake not to:

 

5.1.1.    input personal or sensitive data relating to a data subject without explaining the purpose of the collection and processing of such data to the data subject;

5.1.2.    use the Software for any unlawful or illegal purpose, act dishonestly, fraudulently or unprofessionally by engaging in unprofessional behaviour by posting inappropriate, inaccurate, or objectionable content to or through PhysioNotes;

5.1.3.    Publish inaccurate information in the designated fields on the profile form (e.g., do not include a link or an email address in the name field);

5.1.4.    make any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Website, the Software, the content on the Website;

5.1.5.    make any translation, adaptation, arrangement or any other alteration of the permanent aspects of the Website and or any Software;

5.1.6.    make any form of distribution to the public of the content of the Website, the Application, the Software, in whole or in part, or of copies thereof;

5.1.7.    remove or alter any copyright or other proprietary notice from the Website, the Software or the Services;

5.1.8.    disseminate, sell, give away, hire, lease, offer or expose for sale or distribute the content of the Website, the Software, or another product wholly or partially derived from any of the foregoing;

5.1.9.    Create a user profile for anyone other than a natural person;

5.1.10.    Harass, abuse or harm another person, including sending unwelcomed communications to others using the Services;

5.1.11.    Use or attempt to use another's account without authorization from the Administrator, or create a false identity;

5.1.12.    Upload, post, email, transmit or otherwise make available or initiate any content that:

  1. a) Falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym.
  2. b) Is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable;
  3. c) Adds to a content field content that is not intended for such field (i.e. submitting a telephone number in the “Name” or any other field, or including telephone numbers, email addresses, street addresses or any personally identifiable information for which there is not a field provided by Querygen Technologies);
  4. d) Includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships.
  5. e) Infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights;
  6. f) Includes any unsolicited or unauthorised communication, advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. This prohibition includes but is not limited to (a) using PhysioNotes to send messages to people who don’t know you or who are unlikely to recognize you as a known contact; (b) sending messages to distribution lists, newsgroup aliases, or group aliases; and/or
  7. g) infringes upon the rights of data subjects protected by the Data Protection Acts.

5.1.13.    Participate, directly or indirectly, in the setting up or development of a network that seeks to implement practices that are similar to sales by network or the recruitment of independent home salespeople to the purposes of creating a pyramid scheme or other similar practices.

5.1.14.    Imply or state, directly or indirectly, that you are affiliated with or endorsed by PhysioNotes unless you have entered into a written agreement with Querygen Technologies;

5.1.15.    Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;

5.1.16.    Use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the site;

5.1.17.    Infringe or use the PhysioNotes brand, logos and/or trademarks, including, without limitation, using the word “PhysioNotes” in any business name, email, or URL or including Querygen Technologies trademarks and logos except as provided in any brand guidelines created by Querygen Technologies or as expressly permitted by Querygen Technologies;

5.1.18    Use bots or other automated methods to access PhysioNotes, add or download contacts, send or redirect messages, or perform other activities through the Application, unless explicitly permitted by Querygen Technologies;

5.1.19.    Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Website;

5.1.20.    Attempt to or actually access PhysioNotes by any means other than through the interfaces provided by Querygen Technologies. This prohibition includes accessing or attempting to access PhysioNotes using any third-party service, including software-as-a-service platforms that aggregate access to multiple services, including PhysioNotes and proxy services;

5.1.21.    Deep-link to the Website for any purpose, (i.e. including a link to PhysioNotes other than the home page) unless expressly authorized in writing by Querygen Technologies or for the purpose of promotion as set forth in any brand guidelines;

5.1.22.    Attempt to or actually override any security component included in or underlying PhysioNotes;

5.1.23.    Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on Querygen Technologies infrastructure, including, but not limited to, sending unsolicited communications to other users or PhysioNotes personnel, attempting to gain unauthorized access to PhysioNotes, or transmitting or activating computer viruses through or on PhysioNotes.

 

5.2.    Compliance Indemnity: You hereby agree to indemnify and hold the Licensor and its licensors harmless from and against any liabilities, damages, judgments, losses, costs and expenses (including reasonable legal fees) arising out of your registration for the Website, any downloading, installation and use of the Software, or use of the Services in a manner inconsistent with this Licence.

 

6    QUERYGEN'S UNDERTAKINGS

 

6.1    Querygen Technologies Indemnity: We shall indemnify you against any claim that your use of or access to the System or Services infringes the copyright of any third party provided:

 

6.1.1    we are immediately notified of any such claim;

6.1.2    you do not make any admissions of liability;

6.1.3    we are given immediate and complete control of such claim, including the right to conduct the defence of any claim and to make any settlements as appropriate; and

6.1.4    the claim does not arise on foot of any of the circumstances set out in condition 5.1 above.

 

6.2    Remedies: We shall have the right at our discretion, to replace, modify or change the Software incorporated in the Services to make the Software non-infringing or refund to you the price paid to Querygen in the first 12 months of this Agreement. The maximum aggregate liability of Querygen Technologies shall be equal to that which is set out in section 8 of this Agreement. This states the entire liability of Querygen Technologies to you in respect of the infringement of the intellectual property rights of any third parties.

 

6.3.    Disclosure of User Information:

6.3.1.    You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide to us, if required to do so by law or we, in good faith believe that such access, preservation or disclosure is reasonably necessary in our opinion to:

(a)    comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures;

(b)    enforce this Agreement;

(c)    respond to claims of a violation of the rights of third parties, whether or not the third party is a user, individual, or government agency;

(d)    respond to customer service inquiries; or

(e)    protect the rights, property, or personal safety of Querygen Technologies, our users or the public.

 

6.3.2.    Disclosures of user information to third parties other than those required to provide customer support, administer this Agreement, or comply with legal requirements are addressed in the Privacy Policy.

 

  1. WARRANTY & DISCLAIMER

7.1    DO NOT RELY ON PhysioNotes, ANY INFORMATION THEREIN, OR ITS CONTINUATION. WE PROVIDE THE SYSTEM AND THE SERVICES AND ALL INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. Querygen Technologies DOES NOT CONTROL OR VET DATA STORED OR USER GENERATED CONTENT FOR ACCURACY. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS SAVE AS SET OUT IN THIS AGREEMENT.

 

7.2    TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY QUERYGEN TECHNOLOGIES OR ANYTHING RELATED TO PHYSIONOTES, YOU MAY CLOSE YOUR ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 11 (“TERMINATION”) AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.

 

7.3    QUERYGEN TECHNOLOGIES IS NOT RESPONSIBLE AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, FORUM POSTINGS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH PHYSIONOTES TO ANYONE. THE TRANSMISSION OF ANY SUCH MESSAGES OR COMMUNICATION SHALL BE ENTIRELY THE RESPONSIBILITY OF THE MOBILE NETWORK OPERATOR OR BROADBAND INTERNET PROVIDER. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE WEBSITE, THE APPLICATION OR ANY USER MANUALS, MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US.

 

7.4    QUERYGEN TECHNOLOGIES DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS; THEREFORE, QUERYGEN TECHNOLOGIES DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.

 

8.5    QUERYGEN TECHNOLOGIES DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN OPERATION. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. QUERYGEN TECHNOLOGIES DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONALITY. FURTHERMORE, QUERYGEN TECHNOLOGIES DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SYSTEM DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.

 

  1. LIMITATION OF LIABILITY.

8.1    Disclaimer: Neither Querygen Technologies nor any of our subsidiaries, affiliated companies, employees, shareholders, or directors (“Affiliates”) shall be cumulatively liable for (a) any damages in excess of the fee that you paid for a) PhysioNotes Service, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Services, the Application or any of the content or other materials on, accessed through or downloaded from www.physionotes.com. This limitation of liability is part of the basis of the Agreement between the Parties and without it the terms and prices charged would be different.

 

This limitation of liability shall:

      1. Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose;
      2. Not apply to any damage that PhysioNotes may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.

 

8.2    Breach of Warranty: For the avoidance of doubt, Querygen Technologies shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the following circumstances:

8.2.1    any use of the Services by you and your Team members other than in accordance with the terms of this Agreement or use of the Services for a purpose for which they were not designed;

8.2.2any temporary or permanent reproduction by any means and in any form, in whole or in part, of the System;

8.2.3.     any reverse assembly, reverse compilation, reverse engineering or adaptation of the whole or part of the System;

8.2.4.     alteration, modification, adjustment, translation, adaptation or enhancement made by you to the System or any combination, connection, operation or use of the System with any other equipment, software or documentation;

      1. any dissemination, sale, hire, lease offer or exposure for sale or distribution of the System;
      2. any item of third party hardware or software, even if forming part of the Software or if the Licensor has recommended such third party hardware or software;
      3. any breach by you of your obligations under this Agreement or of the Licensor’s intellectual property rights; or
      4. any act, omission, negligence, fraud or default of or by you

 

  1. INTELLECTUAL PROPERTY RIGHTS

9.1    Vesting: You acknowledge that all intellectual property rights, title and interest in the System and the Services contained therein, throughout the world belong to Querygen Technologies, that rights in the these are licensed (not sold) to you, and that you have no rights in, or to, the System and the Services other than the right to use them in accordance with the terms of this Licence.

 

9.2    Contributions: In the event that you provide us with ideas, suggestions, documents, improvements, comments, proposals or feedback in relation to the operation of the System and or the Services (“Feedback”) howsoever facilitated by the System; any such communication with Querygen Technologies whether verbally, via postings on blogs, forums, email and the like (“Communication”), you acknowledge and agree that such Feedback and or Communication (together “Contributions”):

9.2.1.    do not contain confidential or proprietary information;

9.2.2.    does not create any express or implied obligation of confidentiality in respect of PhysioNotes;

9.2.3.    entitles Querygen Technologies to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide;

9.2.4.    does not preclude Querygen Technologies from having something similar to the Contributions already under consideration or in development;

9.2.5.    that you irrevocably waive and assign all right, title and interest in and to the Contributions to Querygen. You further agree to provide Querygen Technologies with such assistance as may be required in documenting, perfecting and maintaining the rights of Querygen Technologies in and to the Contributions.

9.2.6.    does not entitle you to any compensation, royalty or reimbursement of any kind from Querygen Technologies under any circumstances.

 

10    INTEGRITY OF DATA

10.1    Not Bespoke: You acknowledge that the System and the Software have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the System and the Services as described on the Website, meet your requirements.

 

10.2    Minor Errors: You acknowledge that the System and the Services may not be free of bugs or errors and you agree that the existence of any minor errors shall not constitute a breach of this Licence.

 

10.3    Insurance: You agree that you are the best judge of the value and importance of the data held on your account and that you will be solely responsible for taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.

 

10.4    Implied Warranty: Except as expressly provided herein and to the extent permitted under applicable law, all conditions and warranties (express or implied, statutory or otherwise) are excluded by the Licensor including without limitation any warranties implied by the Sale of Goods Act, 1892 as amended by the Sale of Goods and Supply of Services Act 1980 or any applicable local laws. Without prejudice to the generality of the foregoing, the Licensor does not warrant that the System will achieve any intended result or that the operation by you of the System will be uninterrupted or error free.

 

11    TERMINATION

11.1    Duration: This Licence is effective either until deactivated by you in accordance with the full process provided for on the Website or until terminated by Querygen on the basis of 60 days unpaid fees in which case the account may be suspended at the discretion of Querygen Technologies and the data held being deleted in due course.

 

11.2    Immediate Termination: Querygen Technologies may terminate this Licence immediately if:

11.2.1    you or any of your Team members, commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of notice requiring you to do so;

11.2.2    a petition for a bankruptcy order to be made against you has been presented to the court;

11.2.3     you (where the Licensee is a company) become insolvent or unable to pay your debts, enter into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), pass a resolution for winding-up, have a receiver or examiner, trustee, liquidator or similar officer appointed over the whole or any part of your assets, make any composition or arrangement with your creditors or take or suffer any similar action in consequence of your debt, or becomes unable to pay your debts.

11.2.4     if Querygen Technologies believes, at its sole discretion, that you are not adhering to the terms and conditions of this Agreement or the Privacy Policy;

11.2.5    for just cause at the sole discretion of Querygen Technologies to include, but not limited to the abuse of any fair usage policy or for the breach of any matter outlined under Section 5.1 above; or

11.2.6    for breach of the duties outlined at Section 5 to this Agreement.

 

11.3    User Termination: You may terminate at any time, subject to adherence to the account deactivation process outlined on the Website and any terms in the Terms and Conditions applicable at the time.

 

11.4    Upon termination for any reason:

11.4.1    all rights granted to you under this Licence shall cease;

11.4.2    you must cease all activities authorised by this Licence;

11.4.3    you must immediately pay to the Licensor any sums due to the Licensor under this Licence if applicable; and

11.4.4    All data stored and retained in the System will be deleted within a reasonable period.

 

12    DATA PROTECTION

 

12.1    Definitions: For the purposes of this Agreement the following definitions relating to Data Protection shall apply:

 

Data Protection Acts” means the Data Protection Acts 1988 and 2003 (as amended from time to time).

Data Protection Law” means all legislation and regulations relating to the protection of personal data including (without limitation) the Data Protection Acts and all other industry guidelines (whether statutory or non-statutory) or codes of practice or guidance issued by the Data Protection Commissioner relating to the processing of personal data or privacy or any amendments and re-enactments thereof;

Loss” means any claim, suit, proceeding, judgment, liability, cost, expense, fee, penalty or fine;

Relevant Personal Data” means personal data (as defined in the Data Protection Acts) delivered to Querygen Technologies;

 

12.2    Data Controller”: the Parties acknowledge that, in relation to Relevant Personal Data and for the purposes of the Data Protection Acts, the Administrator is the data controller and Querygen Technologies is the Data Processor.

 

12.3    Data Processor’s Obligations: Querygen Technologies agrees with the Administrator that:

12.3.1    it shall only process Relevant Personal Data in accordance with the instructions of the Administrator;

12.3.2    it shall not sell, transfer or allow access to any Relevant Personal Data to any other party other than those of its officers, employees, agents and contractors to whom and to the extent to which such disclosure is necessary for the operation of the System and the provision of the Services;

 

12.4    Security: Querygen Technologies shall take all reasonable measures with a view to preventing unauthorised access to, or unauthorised alteration, disclosure, destruction of, any Relevant Personal Data in the custody of Querygen Technologies and Querygen Technologies shall take all reasonable steps to ensure that its personnel are aware of and comply with those measures.

 

12.5    Ownership: As between the Administrator and Querygen Technologies all Relevant Personal Data shall be the property of the Administrator.

 

12.6    Data Subject Requests: Each Party shall promptly notify the other of each request from a data subject for access to Relevant Personal Data relating to him.

 

12.7    Indemnity: Querygen Technologies shall indemnify the Administrator on demand from time to time from and against all direct Losses suffered or incurred by the Administrator arising out of or in connection with breach by Querygen Technologies of its obligations under this Section 12. The Administrator acknowledges that the Data Processor is reliant on the Administrator for direction as to the extent to which the Data Processor is entitled to use and process the Relevant Personal Data. Consequently, the Data Processor will not be liable for any claim brought by a Data Subject arising from any action or omission by the Data Processor, to the extent that such action or omission resulted directly from the Administrator’s instructions.

 

13    PAYMENT

 

13.1    Payment: Unless otherwise agreed or Querygen Technologies otherwise decides, all monies due to Querygen Technologies from the Administrator become payable as soon as an account or demand therefore is issued to the Administrator. Unless otherwise agreed or Querygen Technologies otherwise decides, payment shall be due within thirty days of the date of the issue of an account invoice, unless otherwise stipulated within the Customer’s direct debit agreement terms.

 

14    NOTICES

14.1    Service messages: For the purposes of service messages and notices about the Services to you, Querygen Technologies may place a banner notice across the Website or the Application to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from Querygen Technologies to an email address associated with your account, even if we have other contact information, depending on user requirements.

 

14.2: General Communication: You also agree that Querygen Technologies may communicate with you through your account or through other means including email, mobile and telephone about your account or services associated with PhysioNotes. Please review your settings to control what kind of messages you receive from us. You acknowledge and agree that we shall have no liability associated with or arising from your failure to do so, to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services.

 

15    THIRD PARTY SITES

15.1    Links: Querygen Technologies may include links to third party web sites (“Third Party Site(s)”). You are responsible for evaluating whether you want to access or use a Third Party Site or Application. You should review any applicable terms and/or privacy policy of a Third Party Site or application before using it or sharing any information with it, because you may give the operator permission to use your information in ways PhysioNotes would not.

15.2    Responsibility: Querygen Technologies is not responsible for and does not endorse any features, content, advertising, products or other materials on or available from Third Party Sites or applications. Querygen Technologies also does not screen, audit, or endorse applications. Accordingly, if you decide to access Third Party Sites or use applications, you do so at your own risk and agree that your use of any application is on an “as-is” basis without any warranty as to the application, and that this Agreement does not apply to your use of any Third Party Site or application.

 

  1. AMENDMENTS TO THE LICENCE

16.1    Amendments: Querygen Technologies reserves the right, at our sole discretion, to amend, add or delete any of the terms and conditions of this Licence. Querygen Technologies will post notifications of any such changes to this Licence on the Website or in the Application, will provide a link to the revised version of this Licence, and may provide such other notice as the Licensor may elect in its sole discretion. If any future changes to this Licence are unacceptable to you or cause you to no longer be in compliance with this Licence, you may terminate this Licence in accordance with the terms herein.

 

16.2    Evidence of Acceptance: Your installation, download and/or use of any updated or modified Software (if any) and/or your continued use of the System or the Services following notice of changes to this Licence as described above means you accept any and all such changes. Querygen Technologies may change, modify, suspend, or discontinue any aspect of the System and/or the Services at any time.

 

16.3    Limits: Querygen Technologies may also impose limits on certain features without notice or liability. You disclaim any right, title or interest, monetary or otherwise, in any feature or content contained in the System and/or the Services.

 

17    WAIVER

17.1    Strict Performance: If PhysioNotes fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if Querygen Technologies fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

 

17.2    Subsequent Default: A waiver by Querygen Technologies of any default shall not constitute a waiver of any subsequent default.

 

17.3    Effective Waiver: No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

 

18    SEVERABILITY

18.1    Severance of Terms: If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

 

19    ENTIRE AGREEMENT

19.1    Entire Agreement: This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the license hereunder and supersedes any prior agreement, representation, understanding or arrangement between us, whether oral or in writing. Both Parties hereunder acknowledge that, in entering into this Licence, neither Party has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence. Neither Party shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in this Licence.

 

  1. LAW AND JURISDICTION

20.1    Jurisdiction: This Licence is governed by Irish law. Any dispute arising from, or related to, any term of this Licence shall be subject to the non-exclusive jurisdiction of the Irish courts.

 

20.2    Language: Any dispute arising from, or related to, any term of this Licence arising between the Parties, shall be resolved or determined based on the English language version alone. These terms were originally written in English. In the event that these terms are translated into any other language, the translation shall be for review purposes only and have no legal effect.

 

  1. RELATIONSHIP

21.1    Relationship: Nothing in this Agreement shall create, evidence or imply any agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party represent that it has any authority to make commitments on behalf of the other party.

 

Last Edited: October 2016

Version 1.0