JANUARY 3, 2020
THIS END USER LICENSE AGREEMENT (THE “AGREEMENT” or “EULA”) IS A LEGAL AGREEMENT BETWEEN THE ENTITY YOU REPRESENT (E.G., THE HOSPITAL, DOCTOR’S OFFICE, CLINIC THAT EMPLOYS YOU) (THE “END USER“) AND SHADOWBOX, INC. (“SHADOWBOX“). BY CLICKING THE “I ACCEPT” BUTTON OR USING THE SHADOWBOX SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE, ON BEHALF OF THE END USER, REVIEWED AND ACCEPTED THIS AGREEMENT. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE END USER TO THE TERMS AND CONDITIONS IN THIS EULA.
IF THE END USER DOES NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, DO NOT USE THE SHADOWBOX SOFTWARE AND DELETE THE SHADOWBOX SOFTWARE FROM YOUR COMPUTER.
The Shadowbox software to which this EULA applies (the “Shadowbox Software”) allows you and the End User to receive information from and transmit information to the Shadowbox online platform (the “Platform”), all of which intended to help make your work day a little easier. The Shadowbox Software works just like the browser you currently use to access the software applications you use every day, but now includes specially created “easy buttons” intended to automate tasks and reduce data entry.
Subject to the terms and conditions of this EULA and compliance with this EULA, Shadowbox grants the End User a limited, non-transferable, non-exclusive, non-sublicenseable, revocable license to download, install and use one (1) copy of the Shadowbox Software, in object code format, on one (1) computer for the sole purpose of interfacing with the Platform.
All rights not granted hereunder are hereby reserved by Shadowbox and, as applicable, by its licensors. The Shadowbox Software is licensed, not sold. This EULA does not grant the End User any title or ownership in the Shadowbox Software, and should not be construed as a sale or transfer or transfer of any intellectual property or other rights to the Shadowbox Software.
End User shall, directly or indirectly, and the End User shall not permit any third party to: (1) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Shadowbox Software or the Platform or analyze the Shadowbox Software or the Platform to learn the details of its design, construction, or production in order to produce a copy or improved version thereof; (2) modify, translate, or create derivative works based on any element of the Shadowbox Software or the Platform or any related documentation; (3) rent, lease, distribute, sell, assign, or otherwise transfer rights to use the Shadowbox Software; (4) remove, disable, or circumvent any security protections or any technical measures that control access to the Shadowbox Software or the Platform; (5) remove any proprietary notices from the Shadowbox Software or any related documentation; (6) publish or disclose to third parties any evaluation of the Shadowbox Software or the Platform without Shadowbox’s prior written consent; (7) use the Shadowbox Software or the Platform for any purpose other than its intended purpose or not in accordance with any provided documentation, including using the Shadowbox Software or the Platform, or any related documentation (or any portion of any of the foregoing) to design, development, create or manufacture any software or service that competes with or is an alternative to the Shadowbox Software or the Platform; (8) interfere with the integrity or performance of the Shadowbox Software or the Platform or the Shadowbox services that are made available via the Platform; (9) introduce into the Shadowbox Software or the Platform any copyleft software, open source software (including and software licensed under a license that approved by the Open Source Initiative (www.opensource.org) or any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, malware, files, scripts, agents or programs that may damage the operation of any computer, hardware, device, software or network (“Malicious Code”); (10) use the Shadowbox Software or the Platform send or store data which violates the rights of any individual; (11) use the Shadowbox Software or the Platform in violation of any laws and regulations applicable to the End User’s use of the Shadowbox Software or the Platform; or attempt to gain unauthorized access to the Shadowbox Software or the Platform or their related systems or networks. The End User shall be responsible for its actions and the actions of its users while using the Shadowbox Software and the Platform.
End User acknowledges and agrees:
End User is responsible for creating, implementing and enforcing internal guidelines, policies and procedures, including but not limited to a HIPAA compliant privacy policy, concerning the use and access of personal health information. End User is solely responsible to ensure that its employees and users receive proper HIPAA training and comply with such guidelines, policies and procedures.
End User acknowledges and agrees that Shadowbox neither endorses the contents of any communications, data, or other information nor assumes any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Shadowbox may remove any violating content posted or stored using the Shadowbox Software or the Platform or transmitted through the Shadowbox Software or the Platform, without notice to the End User. Notwithstanding the foregoing, Shadowbox does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the communications, data, or any other information input into or stored in the Shadowbox Software or the Platform for completeness, integrity, quality, accuracy or otherwise. The End User shall be responsible and liable for the completeness, integrity, quality and accuracy of communications, data, and other information input into the Shadowbox Software or the Platform.
Shadowbox reserves the right to amend, alter, or modify the conduct requirements as set forth in this EULA at any time. Shadowbox may deliver notice of such updated requirements to the End User via e‑mail or through the Shadowbox Software or the Platform. End User’s continued access to and use of the Shadowbox Software or the Platform following issuance of such updated requirements shall constitute the End User’s acceptance thereof. Shadowbox may upon written notice to the End User amend this Acceptable Use Policy.
The End User agrees that use of the Shadowbox Software and the Platform shall be at the End User’s own risk. To the fullest extent permitted by applicable law, End User agrees to defend, indemnify and hold harmless Shadowbox, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) End users use of and access to the Shadowbox Software and the Platform; (ii) the violation of any term of this EULA; (iii) the violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that any End User content, including without limitation any communications, data, or other information stored on or processed via the Shadowbox Software or the Platform, caused damage to a third party. This defense and indemnification obligation will survive this EULA and the End User’s use of the Platform.
THE SHADOWBOX SOFTWARE AND THE PLATFORM ARE PROVIDED “AS-IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON‑INFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
IN NO EVENT SHALL SHADOWBOX OR ITS LICENSORS BE LIABLE FOR LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, USE OR MALFUNCTION OF THE SHADOWBOX SOFTWARE OR THE PLATFORM, ANY LOSSES OR DAMAGES CONNECTED WITH OR CONSISTING OF DAMAGE TO PROPERTY, LOST OR CORRUPTED DATA OR FILES, LOSS OF GOODWILL, COMPUTER, ERRORS AND LOST BUSINESS OR OTHER INFORMATION AS A RESULT OF POSSESSION, USE OR MALFUNCTION OF THE SHADOWBOX SOFTWARE OR THE PLATFORM, EVEN IF SHADOWBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SHADOWBOX’S TOTAL AGGREGATE LIABILITY UNDER OR RELATING TO THE SUBJECT MATTER OF THIS EULA IN ALL CASES SHALL NOT EXCEED $100. THE FOREGOING APPLIES EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Without prejudice to any other rights of Shadowbox, this EULA shall remain in effect for as long as the End User uses, operates, or runs the Shadowbox Software. This EULA shall terminate automatically if the End User fails to comply with its terms and conditions. Additionally, Shadowbox may terminate this EULA by providing the End User written notice of such termination. Upon termination, the End User must uninstall and delete all copies of the Shadowbox Software. The sections entitled “Reservation,” “Restrictions,” “Acceptable Use Policy,” “Indemnification,” “Disclaimer of Warranties,” “Limitation of Liability,” “Term & Termination,” “Choice of Law & Jurisdiction,” and “Miscellaneous” shall survive any termination of this EULA.
This EULA, and the rights and obligations of the End User and Shadowbox, shall be construed and enforced under California law as such law is applied to agreements between California residents entered into and to be performed within California, without regard to California’s conflict of law principles. To the extent any claims are governed by federal law, such federal law shall also be applicable. The End User and Shadowbox consent to the exclusive personal jurisdiction of the state and federal courts located in Los Angeles, California, in connection with any claim or dispute concerning this EULA or the subject matter of this EULA, and End User and Shadowbox waive any objection based on venue or the inconvenience of such form. If End User is located outside the United States, the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form
Shadowbox reserves the right to amend this EULA at any time, in its sole discretion, upon notice to the End User. If any such changes are unacceptable to the End User or cause the End User to no longer be in compliance with the terms and conditions of this EULA, End User shall terminate this EULA, by uninstalling and deleting the Shadowbox Software, as set forth above.
This EULA represents the complete agreement between the End User and Shadowbox regarding the Shadowbox Software and the Platform and supersedes all prior agreements and representations, warranties or understandings between the End User and Shadowbox regarding the subject matter. If any provision of this EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and the remaining provisions of this EULA shall remain in full force and not be effected. No term or provision of this EULA shall be considered waived by a party, and no breach excused by a party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by a party to, or waiver of, a breach by a party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by a party.