END USER LICENSE AGREEMENT
Last Revised: September 17, 2019
PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT” OR “EULA”) CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN LIGHTNING BOLT SOLUTIONS, INC. (“LIGHTNING BOLT” OR “US” OR “WE”) AND THE INDIVIDUAL, PHYSICAL PRACTICE ENTITY, HOSPITAL OR OTHER ORGANIZATION ESTABLISHING AN ACCOUNT WITH LIGHTNING BOLT AND USING THE SOFTWARE SERVICE AS DEFINED HEREIN (“CUSTOMER” OR “YOU” OR “END USER”) AND EACH INDIVIDUALLY A “PARTY” AND COLLECTIVELY THE “PARTIES” TO THIS EULA. CUSTOMER’S USE OF THE LIGHTNING BOLT SOFTWARE SERVICE, THE LIGHTNING BOLT WEBSITE, AND ANY ADDITIONAL LIGHTNING BOLT PRODUCTS OR SERVICES IS SUBJECT TO THE TERMS SET FORTH HEREIN, WHICH INCLUDE TOPICS SUCH AS THE TERM OF THIS AGREEMENT, LIMITATIONS OF LIABILITY, DISCLAIMERS, PAYMENT TERMS AND EXPECTATIONS REGARDING HIPAA.
1. Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated:
a. “Authorized Users” means the physicians, nurses and other clinicians, and employees that Lightning Bolt will assign and provide with a Named User Account.
b. “Content” or “Data” means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of implementing and using the Software Service.
c. “Customer Data” means any data, information or material provided or submitted by Customer, Participating Affiliate and End Users to the Software Service in the course of using the Software Service.
d. “Go-Live Date” means the first productive use of Software Services defined in an Order Form by any group of End Users or six (6) months after the Effective Date of an Order Form, whichever occurs first.
e. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and all rules and regulations promulgated thereunder.
g. “Named User Account” means the user account assigned and provided by Lightning Bolt to the specific physicians, nurses and other clinicians, and employees who are Authorized Users of the Service.
h. “Order Form(s)” means the form evidencing the initial subscription for the Software Service and any subsequent Order Forms or Change Order Forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form and/or Change Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict
between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
i. “Protected Health Information” shall have the meaning given such term in HIPAA.
j. “Statement of Work” or “SOW” means a document that defines the outcomes, tasks and deliverables associated with implementing, revising and configuring the Software Services.
k. “Software Service(s)” or “Software” means the specific product or module of Lightning Bolt’s scheduling solution, data analysis, or other services identified during the ordering process, developed, operated, and maintained by Lightning Bolt, accessible via mobile device application, or another designated web site or IP address, or ancillary online or offline products and services provided to Customer by Lightning Bolt, to which Customer is being granted access under this EULA, including the Lightning Bolt Technology and the Content. Software also includes all actual copies of all or any portion of the computer programs delivered by Lightning Bolt to Customer, in source or object code form, or accessible as a web application, and all backups, updates and merged copies either permitted by this Master Agreement or supplied subsequently by Lightning Bolt or any party related to Lightning Bolt.
2. Term of Agreement/Termination/Suspension.
This Agreement starts when Customer accepts it. Customer accepts this Agreement through any action that indicates Customer’s assent hereto, including Customer’s execution of an Order Form, registration form or other document that references Customer’s acceptance of this Agreement, or when Customer begins to use (or through Customer’s continued use) of the Software Service by signing into a Lightning Bolt mobile application or the Lightning Bolt web site through a “click” or “checkbox” during the registration process. The term of this Agreement is subject to the Effective Date and Term on any Order Form executed between Lightning Bolt and Customer. Lightning Bolt can, without notice, suspend Customer’s use of the Software Service or terminate this Agreement at any time for cause. “Cause” includes, but is not limited to, (i) Customer paying its bill late more than once in any twelve (12) month period; (ii) Customer becoming insolvent, ceasing to operate in the ordinary course of business as reasonably determined by Lightning Bolt, making an assignment for the benefit of creditors, filing a petition under the U.S. Bankruptcy Code or any similar statute (or the filing of such a petition against Customer) or the appointment of a receiver or similar officer to take charge of Customer’s property, or any other act indicative of bankruptcy or insolvency; (iii) violation of the terms of this Agreement or (iv) Lightning Bolt’s reasonable belief that Customer is misusing the Software Service or using it for any unlawful activity.
Neither Customer nor Lightning Bolt shall be liable to the other for compensation, reimbursement for investments or expenses, lost profits, loss of goodwill, incidental or consequential damages, or damages of any other kind or character, because of any exercise of its right to terminate this Agreement, as provided hereunder, or because of any election to refrain from extending the duration of this Agreement.
Termination of this Agreement for any reason shall terminate Customer’s use of and access to the Software Service but shall not affect Customer’s obligation to pay for such Software Service received or extinguish any right of a Party to sue for violation of this Agreement. In addition, the terms of the Paragraphs 6-12 and 15 shall survive any termination of this Agreement.
3. Registration Information.
Customer agrees to provide accurate, current, and complete information required to register with the Software Service and at other points as may be required in the course of using the Software Service (“Registration Data”). Customer further agrees to maintain and update its Registration Data as required to keep it accurate, current, and complete. Lightning Bolt may terminate Customer’s rights to any or all of the Software Service if any information Customer provides is false, inaccurate or incomplete. Customer agrees that Lightning Bolt may store and use the Registration Data Customer provides for use in maintaining Customer’s account and billing fees.
4. Pricing/Customer’s Invoice.
Subject to any separate written agreement between Customer and Lightning Bolt, Lightning Bolt may change the pricing for its Software Service according to the terms under Service Fees and Invoicing of any Order Form or Change Order Form executed between Lightning Bolt and Customer. Customer’s invoice describes Customer’s charges (including any applicable sales tax) and may, from time-to-time, include other important information. Customer should read everything Customer receives in its invoice envelope. Unless otherwise specified in an Order Form or Change Order Form, Lightning Bolt invoices base charges monthly in arrears and all usage charges monthly in arrears and Customer agrees to pay its invoice within thirty (30) days of the date of the invoice. If Lightning Bolt does not receive payment in full within such time period, Lightning Bolt may, to the extent permitted by law, charge a late fee of up to one and a half percent (1.5%) a month (eighteen percent (18%) annually) or a flat $5.00 on unpaid balances, whichever is greater. Lightning Bolt may also charge for any collection agency fees billed to Lightning Bolt for trying to collect from Customer. Lightning Bolt may charge Customer up to $25.00 for any returned check, to the extent permitted by applicable law. If Customer signs a credit card billing authorization that Lightning Bolt accepts, Customer is authorizing Lightning Bolt to charge any amounts Customer owes it, then or later, and to demand immediate payment from the card issuer. If Customer pays online through the Lightning Bolt website at https://www.perfectserve.com, that payment is made
through use of a third-party payment processor, and payment information Customer provides is sent directly to that third party. Please be aware that Lightning Bolt does not control, nor is it responsible for, the privacy policies or information practices of the third-party payment processors. Customer should review the privacy policies posted on its site. See Paragraph 14, “Privacy,” below.
5. Grant of License; Restrictions.
Lightning Bolt hereby grants Customer a non-exclusive, non-transferable right to use the Software Service, solely for its internal business purposes, subject to this Agreement. All rights not expressly granted to Customer are reserved by Lightning Bolt.
Without limiting the generality of the foregoing, except as otherwise provided herein, Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Service or the Content in any way; (ii) modify or make derivative works based upon the Software Service or the Content; (iii) create Internet “links” to the Software Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Software Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software Service, or (c) copy any ideas, features, functions or graphics of the Software Service.
Customer shall designate to Lightning Bolt Customer’s Authorized Users up to the number of licenses provided for in an applicable Order Form. Authorized Users may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who are no longer members of the Customer’s staff, have terminated employment or otherwise changed job status or function and no longer use the Software Service.
Customer shall not knowingly use the Software Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Software Service or the data contained therein; or (v) attempt to gain unauthorized access to the Software Service or its related systems or networks.
6. Proprietary Rights.
Lightning Bolt, or its licensor(s), retains all rights, title and interest in and to the Software Service, including all source code, object code, data, information, copyrights, patents, inventions and trade secrets embodied therein, and all other rights not expressly granted to Customer hereunder.
Nothing in this Agreement constitutes a waiver of any of Lightning Bolt’s rights under the intellectual property laws of the United States or any other jurisdiction or under any other federal, state, or foreign laws.
7. Customer Data.
Lightning Bolt does not own Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Lightning Bolt shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data
8. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AGREES AS FOLLOWS: LIGHTNING BOLT’S MAXIMUM LIABILITY TO CUSTOMER IS LIMITED TO A REFUND OR REBATE OF CHARGES FOR SERVICES PAID FOR BUT NOT RECEIVED. THESE LIMITATIONS APPLY NO MATTER WHAT THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, PRODUCT LIABILITY, OR ANY OTHER THEORY OF LIABILITY NOT REFERENCED HEREIN. THESE LIMITATIONS ALSO MEAN THAT CUSTOMER IS WAIVING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ATTORNEYS’ FEES AND ANY PUNITIVE, TREBLE, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES.
Both Lightning Bolt and Customer agree not to use or disclose individually identifiable information in violation of HIPAA or in violation of any and all applicable laws and regulations.
10. DISCLAIMER: CERTAIN THIRD-PARTY SERVICES.
CUSTOMER ACKNOWLEDGES AND AGREES THAT FUNCTIONALITIES, CAPABILITIES OR SERVICES PROVIDED TO ITS AUTHORIZED USER DIRECTLY BY THIRD PARTIES (“THIRD-PARTY SERVICES”), INCLUDING, WITHOUT LIMITATION, SERVICES THAT ARE INNATE TO A PARTICULAR MOBILE DEVICE (SUCH AS USE OF “Siri” DICTATION SERVICE ON AN iPHONE) ARE NOT PROVIDED BY LIGHTNING BOLT AND DO NOT CONSTITUTE “SOFTWARE SERVICES” UNDER THIS AGREEMENT. CUSTOMER REMAINS SOLEY RESPONSIBLE FOR ADOPTING APPROPRIATE SAFEGUARDS WITH RESPECT TO SUCH THIRD-PARTY SERVICES (INCLUDING, WHERE APPROPRIATE, POLICIES AND PROCEDURES PROHIBITING AUTHORIZED USERS FROM USING CERTAIN THIRD-PARTY SERVICES TO SEND, RECEIVE, MAINTAIN OR TRANSMIT PROTECTED HEALTH INFORMATION), AND FOR THE ACCURACY, SECURITY AND PRIVACY OF COMMUNICATIONS SENT, RECEIVED, MAINTAINED OR TRANSMITTED USING SUCH THIRD-PARTY SERVICES, INCLUDING, PUTTING IN PLACE BUSINESS ASSOCIATE AGREEMENTS WITH ANY SUCH THIRD PARTIES, IF REQUIRED BY HIPAA.
Lightning Bolt, the Lightning Bolt logo and design, JustInTime Scheduler, and Lightning Bolt NSight are registered trademarks or trademarks (the “Marks”) of Lightning Bolt Solutions, Inc. in the United States and/or other jurisdictions. You are not permitted to use the Marks without the prior written consent of Lightning Bolt.
12. Force Majeure.
Except as otherwise provided herein, neither Party will be liable for, nor will be considered to be in breach of or default under this EULA on account of, any delay or failure to perform as required by this EULA as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence, including shortage of labor, strike, default or failure of suppliers, riot, war, government action, law, or regulation, act of God, act of terrorism, fire, flood, or any other cause beyond the Party’s reasonable control (“Force Majeure Event”).
13. Reliability and Availability.
While Lightning Bolt has taken all commercially reasonable efforts to ensure reliable delivery and availability of the Software Services, Customer acknowledges that the Software Services and the networks and devices they rely on are sometimes subject to failure and outages beyond Lightning Bolt’s control.
Customer agrees to defend, indemnify and hold harmless Lightning Bolt from and against any and all actions, causes of action, suits, claims, demands, damages, liabilities, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs) arising from or in connection with (i) Customer’s use of the Software Service or any Content or (ii) Customer’s violation of this Agreement.
16. Amendments of this Agreement.
This Agreement may be amended from time to time by Lightning Bolt, by posting such amendments to this Agreement online, which shall constitute notice to Customer. Such amendments shall be effective thirty (30) days after notice, subject to Customer’s right to terminate this Agreement as described herein. Customer’s continued use of the Software Service following such thirty (30) day period will constitute acceptance of the modified Agreement. Accordingly, Customer should revisit Lightning Bolt’s website at https://www.perfectserve.com/legal/ on a regular basis.
If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and all other provisions of this Agreement shall remain in full force and effect.
Customer may not assign this Agreement without the prior written consent of Lightning Bolt. Lightning Bolt may assign this Agreement in its sole discretion.
The failure, neglect or delay of either Party to enforce any provision of this Agreement, or any waiver in a particular instance, will not constitute a waiver of the same or different provisions in a separate instance.
20. Entire Agreement.
This Agreement together with any separately executed Order Form, Change Order Form or written Business Associate Agreement, constitutes the entire understanding between the Customer and Lightning Bolt with respect to the subject matter hereof and supersedes all prior representations, agreements, negotiations and discussions between Customer and Lightning Bolt. In the event that Customer and Lightning Bolt have signed a separate Master Services Agreement (“Master Agreement”) and there is a conflict or variation between the terms of this Agreement and such Master Agreement, the terms of the Master Agreement will govern and apply.
21. Governing Law and Venue
The validity and effectiveness of this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Tennessee, without giving effect to the provisions, policies or principles of any state law relating to choice or conflict of laws, and those of the United States of America. Any legal action or proceeding with respect to this Agreement may be brought exclusively in the federal or state courts located in or having jurisdiction over Knox County, Tennessee. Service of process shall be made in any manner allowed by applicable law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.