Merlin.net Terms of Use

IMPORTANT–PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY BEFORE PROCEEDING. THIS IS A LEGAL DOCUMENT BETWEEN YOU AND US (AS BOTH TERMS ARE DEFINED BELOW). BEFORE ACCESSING OR USING THE SERVICES (DEFINED BELOW), YOU SHOULD READ CAREFULLY THIS AGREEMENT AS IT GOVERNS ACCESS TO AND USE OF THE SERVICES. WE ARE WILLING TO ALLOW ACCESS TO AND USE OF THE SERVICES ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THESE TERMS. PLEASE READ CAREFULLY BEFORE CLICKING “I ACCEPT”: By clicking “I Accept” you represent and warrant that you are duly authorized to accept and enter into this Agreement and that it will be binding on you and your users. You should print a copy of this Agreement for future reference.

These Terms and Conditions apply to the Services (defined below) provided in conjunction with the Merlin.net™ Patient Care Network.

ST. JUDE MEDICAL (a subsidiary of Abbott Laboratories) Merlin.net™ PATIENT CARE NETWORK TERMS AND CONDITIONS FOR U.S. CLINICS

By clicking “I Accept” and/or typing your name or initials in the acceptance box where indicated and/or by accessing and using the Services you agree to follow and be bound by these terms and conditions. You acknowledge that you have read and understood these terms and conditions. We reserve the right to change these terms at any time at our discretion and without prior notice. You are expected to regularly check these terms for changes as they are binding on you. We encourage you to review these terms and conditions every time you use the Services made available to you through this website. Your use of the Services following any such change constitutes your agreement to follow and be bound by the posted version of these terms and conditions.

WHEN YOU ACCEPT THIS AGREEMENT, YOU AGREE TO IT ON YOUR INDIVIDUAL BEHALF AND ON BEHALF OF THE ORGANIZATION BY WHICH YOU ARE EMPLOYED OR ENGAGED AND FOR WHOSE BENEFIT YOU ARE USING THE SERVICES (“ORGANIZATION”). YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED BY THE ORGANIZATION TO AGREE TO THE TERMS IN THIS AGREEMENT ON ITS BEHALF.

The Organization is responsible and liable for any non-compliance with this Agreement by its users (defined below).

PART 1. — KEY TERMS

The following terms have the following meaning in this Agreement:

Agreement. These Terms and Conditions including any updates posted at www.merlin.net or other such URL as we may provide, together with relevant enrollment forms, applicable website terms and conditions and any applicable HIPAA Business Associate Agreement (as applicable) (“Agreement”).

Data. Patient data or information collected from a Device through a Monitor and uploaded to the Services, Third-Party Service Data, and data submitted by you through the Services.

Device. Any implanted cardiac device compatible with Merlin.net™ PCN that is obtained from us or any of our subsidiaries or affiliates.

Commands. Commands or parameters you directly submit into the Services or that you direct us to submit on your behalf that are transmitted to a Monitor to assist you in monitoring and/or managing certain Patient’s Devices. Commands are not Data.

Locations. Any place where you receive the Services or where the Services are performed. For example, “your Locations” include the clinical sites where you treat Patients. “Our Locations” include our facilities or other places where we perform the Services.

Monitor. Electronic equipment or applications used to transmit Data and/ or transmit/ receive Commands as part of the Services and to assist you in monitoring and/or managing a Patient’s Device. Monitors may be portable, and they may include, but are not limited to smartphones, tablets, tabletop transmitters, patient electronics system and other electronic equipment used by a Patient or by medical personnel. Monitors may also include any other hardware on which the Patient Mobile App is installed. Monitors may or may not be provided and/or supported by us.

Patient. Any individual with a Device who is enrolled in Merlin.net™ PCN and that you monitor and/or manage via the Services.

Patient Mobile App. “Patient Mobile App” means a mobile application provided by us and used as a Monitor by a Patient in connection with a Patient’s use of a Device.

Services. The online and other services and hardware we provide to you pursuant to this Agreement associated with the Merlin.net™ Patient Care Network located at www.merlin.net, or other such URL as we may provide. Without limiting the generality of the foregoing, the Services encompass the Monitors provided by us, software, Monitor connectivity services, processes, integrations and interfaces, and documentation that is used in and to support Devices that send data to any Monitor in connection with the Merlin.net Patient Care Network.

Third-Party Service Data. “Third-Party Service Data” includes data a Patient has submitted or recorded into a third-party service (e.g., Apple HealthKit, Google Fit) and chosen to transmit to a Patient Mobile App and to the Services.

We, us, and our. Pacesetter, Inc., a St. Jude Medical company, CardioMEMS, LLC, a St. Jude Medical Company and St. Jude Medical, LLC to the extent that they help to perform Services under this Agreement.

You, your, and yours. You and the Organization (e.g., health care provider, clinic, or other party) on whose behalf you access and use the Services.

PART 2. — A DESCRIPTION OF THE SERVICES

1. The Services are designed to assist you in monitoring and managing aspects of a Patient’s Device and/or Device data. The Services rely on the internet; telecommunication systems; third party service providers, platforms, and software; and Monitors not provided by us, to provide access to Patient’s Data, and we are not responsible or liable for any of their performance, delayed performance, errors, damage or loss of data, or non-performance. The Services allow you to view certain Data, and may allow you to remotely monitor and manage certain aspects of a Patient’s Device and may transmit certain Data to your systems if the parties have agreed to implement an integration or interface. For compatible Devices and where the applicable feature has been enabled, the Services also allow you to send Commands to Monitors, which in turn then send the Command to the Device. In cases where you have provided our personnel with access to your Organization’s Merlin.net account, our personnel may also be able to assist in sending such Commands to Monitors and Devices associated with that Merlin.net account. In those circumstances, our personnel will only act under your instruction, and you shall at all times remain responsible for those instructions. Our personnel do not and will not exercise any independent judgement in transmitting Commands and they only follow your instructions. The Services are designed exclusively for the support of Devices.
2. The Services will change over time as features are added, changed, or removed. For the most current description of the Services at any time, refer to the help manuals by visiting https://manuals.sjm.com or through the Help feature on www.merlin.net or contact the service representative that handles your customer account. We will make commercially reasonable efforts to notify you in advance of material changes.
3. The Services may be limited from time to time and we cannot guarantee that the Services will be available or will operate at all times. In order to function properly, the Services require many kinds of mechanical, electrical, computational, transmission, communication and human factors, each of which are subject to limitations, errors, and untimely failures from time to time. Many of those factors are outside the control of either party.
4. Services are not patient health services and we are not a provider or supplier of any health care services. WE DO NOT PROVIDE MEDICAL ADVICE TO PATIENTS OR YOU. YOU SHOULD INSTRUCT YOUR PATIENTS TO CALL YOU OR LOCAL EMERGENCY SERVICES IF THEY SUSPECT THEY MAY HAVE A MEDICAL EMERGENCY. THE SERVICES MAY CONTAIN GENERAL INFORMATION OR CONTENT RELATED TO MEDICAL CONDITIONS AND HEALTH-RELATED INFORMATION. ANY SUCH INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR AS A SUBSTITUTE FOR A PHYSICIAN’S OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL’S SERVICES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR THE COMMANDS AND YOUR RELIANCE ON, AND DECISIONS YOU MAKE WITH RESPECT TO, THE DATA AND OTHER INFORMATION DISPLAYED THROUGH THE SERVICES. WE ARE NOT RESPONSIBLE OR LIABLE FOR THESE COMMANDS OR YOUR RELIANCE ON THE INFORMATION MADE AVAILABLE THROUGH THE SERVICES. Our personnel are not authorized to tell your Patient about the substance, meaning, or possible consequences of any Data.

PART 3. — WHAT WE AGREE TO DO

In exchange for your promises and continued performance of the terms and conditions of this Agreement, we will do the following:

1. We will provide the Services in accordance with this Agreement. Subject to the provisions of this Agreement, we grant to you a non-exclusive, revocable, non-sublicensable, nontransferable license to access and use the Services through websites, mobile applications, and APIs we make available, only for the Organization’s internal operations in connection with the lawful provision of health care to Patients. Such license shall immediately expire upon termination of this Agreement as set forth in Section 6(1) below, and such license is conditioned upon Your compliance with the terms of this Agreement, violation of which automatically terminates the license. Notwithstanding the preceding, the Services may be unavailable for: (a) planned or unplanned downtime, maintenance, modification, or suspension, or (b) when caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), service provider failures or delays (including, but not limited to, Internet service providers), failures or delays of any third party platforms, services, or software (e.g., Apple HealthKit, Google Fit) or Monitors provided by third parties, utilized by the Patient in connection with the Services, or denial of service attacks.
2. We will provide you with certain Services support and training. Ongoing commercially reasonable support will be available to you at reasonable times during normal business hours. Some of our support will be in person and other support will be available to you online or by telephone.
3. We may, but are not required to, directly provide technical support to Patients to assist them in connecting a Device to a Monitor and a Monitor to the Services. For example, we are entitled under this Agreement to contact a Patient to provide support (including remote support) to assist them with these connections including connecting a Device to a Monitor, repairing a connection between the Device and a Monitor, and connecting or repairing a connection between a Monitor and the Services. You agree that we may contact the Patient directly to provide this support service. Notwithstanding the foregoing, we are not responsible for monitoring or maintaining these connections between Devices and Monitors or between Monitors and the Services or for a Patient’s failure to properly connect a Device to a Monitor or the Monitor to the Services, even if we have provided support to assist such Patient in connecting or reconnecting a Device and a Monitor or a Monitor and the Services.
4. We reserve the right from time to time and in our sole discretion to add, change, and remove certain functionality, and otherwise improve the Services. From time to time, updates and changes to the Services will be made available to you as we make them available generally to customers. We will make commercially reasonable efforts to notify you of material updates and changes. From time to time, there will be Services upgrades, or emergency updates, and we may not be able to provide the Services to you at those times. When reasonably possible, we will give you prior notice if we are unable to provide the Services.
5. We will engage subcontractors to perform, provide, or support the performance or provision of, all or any portion of the Service. We remain responsible for the subcontractor’s performance under this Agreement.
6. We will use commercially reasonable efforts to ensure that Data and Commands are maintained and transmitted accurately by the Services. You agree that we are not responsible or liable for the form, availability, accuracy, timeliness, or content of any Third- Party Service Data or other Data or Commands beyond such commercially reasonable efforts. Any of the Data or content available through the Services may be out of date at any given time, and we are under no obligation to update such Data or content since it is based on information provided by health care practitioners and medical device-related data transmissions from Patients.
7. We will make reasonable efforts to notify you in advance if we need to visit your location to provide Services support.
8. We will obtain any approvals that any applicable regulatory body requires in order for us to provide the Services and any updates or changes to the Services.
9. We may provide Monitors as appropriate to be used in connection with the Services. Monitors provided by us may be new or refurbished in order to be used in connection with the Services. We are not responsible or liable for the operation or inoperability of Monitors that are not provided by us.
10. We will indemnify you against any third party claim or action alleging an infringement of their patent, copyright, trademark, trade secret, or other proprietary right, arising out of your use of the Services in accordance with this Agreement and other instructions and documentation made available to you. As a condition of this protection, you must give us prompt written notice of the action or claim, give us the right to choose the lawyers and control the defense, and fully cooperate with us in the defense.
11. Once you have instructed that we stop the Services for a Patient, we will have no obligations or liability to accept, process, or transmit Data or Commands in relation to that Patient or their Monitor. You are responsible for ensuring that such instruction represents the decision of the Organization. In accordance with applicable law, we may stop transmitting Data to you at the direction of the Patient.
12. We will implement reasonable measures to protect the Data and Commands conveyed via the Services. Our employees, subcontractors and agents will only have access to devicerelated data, Commands, and Data on a need-to-know basis in order to perform the Services under this Agreement. You expressly agree and direct that we may use and disclose Data, Commands, and de-identified data for any purpose including, but not limited to, (a) monitoring device performance, (b) research, (c) improving product functionality and safety, and (d) tracking regulated products, provided that any such use or disclosure is consistent with applicable laws.
13. We will implement reasonable technical and organizational measures to protect the Data and Commands from accidental or unlawful destruction or accidental loss or damage, alteration, unauthorized disclosure or access, taking into account the state of the art and the costs of their implementation in relation to the risks inherent in the processing and the nature of the Data and Commands to comply with any applicable federal or state laws (including laws relating to data security). Reasonable technical and organizational security measures include:

• transmission of Data and Commands using, where required, encryption technologies;
• use of physical and technical tools to protect the storage, maintenance and, where appropriate, destruction or deletion of Data and Commands;
• reporting, managing and responding to security breaches involving the Services;
• providing for back-up and the ability to recover Data and Commands;
• periodic security audits of the facilities, hardware, software and information systems used in connection with the Services.

PART 4. — WHAT YOU AGREE TO DO

You agree to do all of the following as a condition of receiving the Services:

1. You will supervise, monitor, and train your employees, representatives, contractors, agents, and others (“users”), who use the Services, to ensure proper use and security. You will limit access to the Services to those you have authorized to use the Services. You will be solely responsible for each user’s use of the Services (e.g., submitting Commands) and their accounts, compliance with this Agreement and for the consequences of any breach of security that is caused by such users or that occurs at any of your locations.
2. You will comply with the Services procedures, guidelines, updates, and changes as they are made available from time to time.
3. You will promptly report to us any significant defects or problems you observe in the Services, and you will fully cooperate with us in resolving such issues.
4. You will promptly report to us any security breach or malfunction that you observe or reasonably suspect, and fully cooperate with us, law enforcement and/or other applicable regulatory body in addressing the breach or malfunction.
5. Upon our reasonable notice to you, you will make your locations available to us during normal business hours for technical service and support, and at other times for critical service and support.
6. You acknowledge and agree that the Services are provided to assist you in your care of your Patients, but you understand that the Services are not a substitute for your professional judgment or for your responsibilities to your Patients.
7. You, not us, are fully responsible and liable for any of your acts or omissions regarding providing health care to your Patients in connection with your use of the Services, including, but not limited to, your conducting a timely review of the Data, following up by arranging appropriate health care to your Patient, submitting Commands or, where applicable, scheduling for Patient monitoring. We are not responsible for any patient outcome including, but not limited to, death or injury arising out of or related to your use of the Services. We are not responsible for billing or collecting any amounts that you or third parties may charge Patients in connection with the Services or for providing you with equipment to use the Services.
8. You are responsible for obtaining and maintaining any internet connections, computing equipment, supplies, third-party software, and personnel necessary for you and users to access and use the Services. The Services may require the use of software provided by unaffiliated third parties (e.g., a web browser and Adobe PDF viewer) (“Third-Party Software”) to enable the full functionality of the Services. Your use of Third-Party Software shall be subject to the applicable terms and conditions set forth by the providers of such Third-Party Software, and you shall comply with such terms and conditions and, if applicable, pay fees for the use of such Third-Party Software. We disclaim all responsibilities, warranties, and liabilities relating to the use of Third-Party Software.
9. The Data available to you through the Services are not electronic medical records or designated record sets (as defined at 45 C.F.R. § 164.501), and the Services should not be treated as a system of record. For clarity, we are not responsible for maintaining the Data in accordance with any record retention requirements applicable to you under local, state, or federal law. You must maintain your own system of record, and you should maintain a backup (such as by downloading and/or printing) any Data that you, in your sole discretion, deem necessary to include in your records. We are not responsible or liable for your use of the Data once You have transmitted or obtained it from the Services. We shall not have any obligation to retain, and may destroy, any or all Data at any time, including upon the termination of this Agreement.
10. You will ensure all users of the Services comply with this Agreement, user manuals, instructions for use, and updates, and any laws and regulations that apply, and you are solely responsible and liable for any non-compliance.
11. Except as expressly permitted by this Agreement, you will not copy, alter, modify, or merge the Services with any other computer programs.
12. You will not allow the Services, or any part of it, to be used in any way whatsoever by unauthorized persons (or released or copied to unauthorized persons) without our prior written permission or as required by applicable law. You are solely responsible and liable for the use of the Services and all activity under the Organization’s user accounts.
13. You will be provided with an administrator ID for the purpose of creating, administering and maintaining user IDs. The administrator ID, User IDs and passwords are equivalent to, and constitute an electronic signature, which will be used to authenticate access to and use of the Services. You are responsible for ensuring that the administrator ID, user IDs and passwords for your Organization’s Merlin.net account will not be disclosed to unauthorized persons for any reason, and you will be responsible and liable for any and all actions that take place with the use of IDs and passwords. You acknowledge and agree that we are not responsible for the internal management or administration of your users. We may audit your use of IDs and passwords for proper use and access to the Services and to identify any changes made to the Data. If there is any basis to believe that a password has been compromised, you will immediately change the affected password (if able to) or notify us that the password should be changed. We will change IDs and passwords upon your request and reserve the right to change them at any time in the event of a suspected, or threatened, security breach. You will promptly terminate a user account when the user is no longer employed or engaged by the Organization, or when the user no longer needs access to the Services in connection with the user’s duties and responsibilities to the Organization.
14. You shall not introduce Malicious Code to the Services, and you shall promptly provide to us written notice in reasonable detail upon becoming aware of the existence of any Malicious Code in the Services or any of the features or functions that pose a risk to you, any user, or Data, and you shall promptly cooperate as necessary to contain and remediate the situation. “Malicious Code” means any technique, software, computer instruction, code or device or method, that is designed or intended to damage, delete, corrupt, impair, gain unauthorized access to or take over the operation of, or prevent or hinder access to any computer or other hardware, network, software, any storage medium or device, data, or database or which does any of the same (whether by, in whole or in part, installing itself, enabling remote unauthorized access, or altering, erasing, duplicating, rearranging within or bombarding the computer or other hardware, network, software, any storage medium or device, data, or database or otherwise), including computer viruses, worms, Trojan horses, logic bombs, trapdoors, backdoors, sniffers, ransomware and all other so-called “malware” and any other similar things of like intent, use or purpose.
15. If there is a violation of any of the security requirements under this Agreement by you or your users, that violation may be considered a breach of this Agreement and may result in the immediate loss of your access to the Services. Both you and we will promptly report security violations to the other so that proper actions may be taken. Violations of this Agreement, including violation of Section 21 below, may be investigated and appropriate legal action may be taken, including civil, criminal or equitable relief.
16. You agree that monetary damages may not provide us with a sufficient remedy for violations of this Agreement and you consent to injunctive or other equitable relief for such violations. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Please contact us if you wish to receive a printed copy of this Agreement.
17. The Services or our personnel may provide you with the ability to interact with and control certain aspects of the Devices used by your Patients (including, without limitation, submitting Commands directly through the Services or by us on your behalf). You, and not us, are solely responsible and liable for your acts and omissions related to your interaction with the Devices used by your Patients (including, without limitation, your Commands).
18. You will not disclose information about Services’ features or performance to any third party without our prior consent, except as required for legal, regulatory, or accreditation purposes, or to assist in the provision of your medical treatment of a Patient.
19. By using the Services, you agree to abide by any and all applicable laws and regulations governing the collection, use, retention and transmittal, as well as the privacy and security, of personal information or personal health information, including without limitation data protection or privacy laws and any local registration, notification and authorization requirements.
20. You agree to use the Services only for those Patients from whom you have previously obtained their informed, voluntary and explicit consent (including but not limited to their consent to transfers of their data to us and our affiliates wherever located in the U.S. or in other countries), using a form of written consent as necessary to comply with any local law requirements or when you deem it necessary to protect their vital interests. When obtaining your Patients’ consents, you will comply with all additional requirements arising under your local data protection, privacy, security, breach notification, health or related laws. It is a misuse of the Services to enter Data or Commands relating to a Patient, or any other person, without either first securing their informed, voluntary and explicit consent to do so or where you have determined it is necessary to protect their vital interests. We will accept no liability in relation to your use of the Services, including where you use the Services to enter Data or Commands relating to a Patient or any other person, where these foregoing conditions have not been satisfied.
21. You are responsible for (a) obtaining all necessary rights and permissions for our processing of Data and Commands as described in this Agreement in connection with your use of the Services; and (b) your use and dissemination of such Data and Commands, including all use and dissemination of such data by users and/or any user account. Notwithstanding any other terms in this Agreement, you represent and warrant to us that you have and shall maintain the legal rights and permissions to (y) provide us with access to the Data and Commands; and (z) permit us to use, disclose, and retain Data and Commands to provide the Service.
22. You agree that you will not directly or indirectly use or direct any robot, spider or other automatic device, process or means to access the Services. Nor shall you use or direct any manual process to monitor or copy, alter, modify or merge the Services or the content contained thereon for any unauthorized purpose. You agree that you will not directly or indirectly use or direct any device, software or routine that interferes with the proper working of the Services nor shall you directly or indirectly attempt to interfere with the proper working of the Services.
    
    You may only use the Services as set out in this Agreement. Any illegal or unauthorized use of the Services shall constitute a violation of this Agreement. You do not have permission to access the Services in any way that violates this Agreement or breaches any applicable law. You may not: (a) use the Services to harm or attempt to harm any person, including minors; (b) use the Services to transmit advertising or other unsolicited promotional materials; (c) frame or link to the Services, unless expressly authorized by us in writing; (d) use the Services in an unlawful manner or otherwise violate any law, statute, ordinance or regulation; (e) attempt to use, resell, redistribute, broadcast or transfer the health information content or use the health information content derived from the Services in a searchable, machine-readable database, except as otherwise authorized or used in a patient’s electronic medical record; (f) use the Services to collect personal information about users of the Services in violation of our Privacy Policy or otherwise; (g) take any action that may contain any viruses, Trojan horses, worms, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (h) use any “deep link”, “page scrape,” robot, spider or other automated process or methodology on the Services or in any way seek to reproduce or circumvent the navigational structure or presentation of the Services to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services; (i) probe, scan, or test the vulnerability of the Services or any network connected to the Services, nor breach the security or authentication measures on the Services or any network connected to the Services; (j) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or our systems or networks or any systems or networks connected to the Services, (k) use any device, software, or routine to interfere with the proper working of the Services or with any other person's use of the Services; (l) use the Services in any manner that could damage, disparage, or otherwise negatively impact us; or (m) attempt to do any of the foregoing acts.
23. To the fullest extent permissible by applicable law, you (including, without limitation, your Organization) agree to defend, indemnify, and hold harmless us, and our and our respective officers, directors, agents, licensors, service providers, and representatives (“Our Group”), from and against any actual or threatened dispute, claim, suit, action, demand, or proceeding (including, without limitation, a regulatory proceeding) by a third party (including, without limitation, a government authority, employee, or Patient) (a “Claim”) for any damages, fines, penalties, losses, or costs (including, without limitation, reasonable attorneys’ fees) (“Liability”) arising from or related to (a) Your use of the Services; (b) your breach of this Agreement or violations of applicable law, or (c) your negligence, recklessness, fraud, or willful misconduct. Notwithstanding your obligation to defend Our Group against Claims as set forth in in this Agreement, we shall have the right to exclusive control of the defense and settlement of the Claims and/or to select counsel to defend against and negotiate resolution of such Claims. You (including the Organization) shall give us all reasonable assistance, at your expense.
24. With the understanding that we may offer services to individuals that are distinct from, but relate to or amplify, the Services, you understand and agree that we may ask Patients for authorizations (as that term is used in HIPAA) in order to compliantly determine whether Patients are interested in such services and ultimately provide such services to Patients.
25. Informational content provided by registered users of the Services may be used to personalize and target content of the e-mails or SMS you receive from us that are used to improve our service to you as a registered user. Visitors and/or registered users of the Services will not receive any marketing solicitation from us as a result of visiting our website nor will we sell or use the information other than in conjunction with the services provided via the Services.

PART 5. — WHAT YOU AND WE BOTH AGREE TO DO

1. You and we both agree to comply with all applicable laws, rules, and regulations that apply to the Services and the processing of the Data.
2. In the course of Services, each party may receive, be exposed to, or acquire confidential or proprietary information belonging to the other (“Confidential Information” or“CI”). You and we will take commercially reasonable measures to protect each other’s CI. All CI that a party discloses under this Agreement will show a legend that it is confidential, proprietary or words to that effect provided that all information disclosed or made available by us relating to the Services (including but not limited to its features and performance) shall be considered our CI regardless of markings. Notwithstanding the generality of the preceding sentence, Service IP (defined below) constitutes our CI and Data is not CI. Each party will take commercially reasonable steps to protect, as if it was its own, the CI of the other party. Each party will use the other’s CI only as allowed by this Agreement. CI does not include information that is independently developed or obtained by the recipient as evidenced by its written records and without reference to CI, is shared with the recipient by a third party without confidentiality obligations, or is or becomes public through no fault of the recipient.

PART 6 — OTHER LEGAL MATTERS

1. Term and Termination. This Agreement becomes effective when you click [“accept”]. It has a term of one year and automatically renews year to year. You may also end this Agreement at any time by giving us 30 days written notice. We may end this Agreement for your material breach by giving you 30 days written notice, unless you cure your breach in that period. We may end this Agreement at any time by giving you 90 days written notice. Either party may terminate this Agreement immediately upon written notice to the other party if: (a) either party fails to maintain any license, permit or other legal authorization required for the performance of its duties hereunder; (b) either party becomes ineligible to participate in Medicare or Medicaid or becomes a “sanctioned person” within the meaning of Section 1128(b) of the Social Security Act; or (c) a breach by the other party of any representation and warranty set forth in this Agreement.
2. Proprietary Rights. We own all right, title and interest in and to the Services (including, without limitation, the design, software code, scripts, database structures, page headers, images, illustrations, graphics, audio clips, and text) and Monitors we provide, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights (“Services IP”). All trademarks and service marks of, or licensed to, us and used in connection with the Services are considered Services IP under this Agreement. Any such pending and registered logo(s), service mark(s), or trademark(s) may not be used in any advertising or publicity without our prior explicit written permission. You will not copy, reproduce, republish, upload, post, transmit, export or distribute in any way any material, documentation, or other information from or about the Services or Monitors we provide, except as specifically provided in this Agreement, or where you have obtained our prior written approval to integrate the Services into your own electronic health records system. You will not create derivative works from, integrate with any other computer systems or programs (other than to integrate in your other computer systems or programs a copy of Data that has been downloaded from the Services), reverse engineer, decompile, or disassemble the Services, Monitors we provide, or any software, hardware, components or other parts that make up the Services or Monitors we provide. If you print, copy or download any part of the Data or Services in breach of this Agreement, we reserve the right to immediately cease your permission to use the Services, and you must destroy any unauthorized copies of materials you may have made. Use of the content or trademarks on the Services in a manner that is inconsistent with this Agreement may violate copyright, trademark, and other laws, and we reserve the right to automatically revoke your permission to use the Services. All rights not expressly granted herein are reserved to us and our licensors. You also agree that immediately upon the creation by or on behalf of us of any derivative works from, modifications, edits or other changes to the materials you submit to us (the ”Modified Content”), the Modified Content will become the sole and exclusive property of us and that we will own the entire right, title and interest in and to the Modified Content, including the right to secure copyright registration for the Modified Content and to otherwise use the Modified Content for any purpose as determined by us in our sole discretion. You hereby grant, assign, transfer and convey any and all right, title or interest you have or may be deemed to have in and to the Modified Content to us. We have the right to create from the Data and Commands and to own a set of the Data and Commands that have been de-identified and/or anonymized and to use that deidentified and/or anonymized data for legally permissible purposes (Data that has been deidentified will not be considered confidential information pursuant to this Agreement). You will not disclose any idea for an invention to us unless you and we have entered into a separate agreement that specifically covers that disclosure. If you or any of your clinicians or other employees, contractors or agents provide any ideas, suggestions, information, concepts, know-how, techniques, recommendations or concepts for improving or modifying the Services, Monitor, or any software, hardware, components or other parts that make up the Services, then your submissions shall become our exclusive property and can be used by us for any purpose without compensation to you.
3. Privacy, Security, and Use of Cookies. Please review our Privacy Policy, which also governs access to the Services to understand our practices.
   
   Communication between the Services and user accounts is encrypted using secured socket layer (SSL) technology. Our security software is designed to meet industry standards.
   
   We collect information about users of the Services through temporary cookies. Cookies are small, alphanumeric identifiers that are transferred to a computer's hard drive through the user's web browser, which enables our systems to recognize the browser and provide personalized features. For detailed information on our use of cookies and how to disable cookies, please click on the link to our Privacy Policy above.
4. Third-Party Service Data and Other Third Party Information and Content. Although the Services may, as a convenience, provide Third-Party Service Data or other data and information made available by third parties, you should independently review and evaluate that data and information. We do not provide any warranty or make any representation concerning the quality, suitability, capabilities, availability, or any other aspect of any Third- Party Service Data or third party services.
5. LIABILITY EXCLUSIONS AND LIMITATIONS / WARRANTIES. IN NO EVENT WILL OUR GROUP BE LIABLE TO YOU (OR YOUR PATIENTS, EMPLOYEES, CONTRACTORS, AGENTS OR USERS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR PURE ECONOMIC LOSSES, COSTS, DAMAGES, PENALTIES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT (WHETHER IN WARRANTY, CONTRACT OR TORT, INCLUDING NEGLIGENCE, EVEN IF WE HAVE BEEN INFORMED ABOUT THE POSSIBILITY THEREOF), INCLUDING WITHOUT LIMITATION MEDICAL EXPENSES, LEGAL FEES, LOSS OF REVENUE OR PROFITS (WHETHER DIRECT OR INDIRECT), LOSS OF BUSINESS, LOSS OF GOODWILL OR REPUTATION, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, OR LOSS OR CORRUPTION OF DATA OR INFORMATION, LOSS CAUSED BY A COMPUTER OR ELECTRONIC VIRUS, OR OTHER LOSSES OF ANY KIND OR CHARACTER. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR ANY OBLIGATIONS OR LIMITATIONS IN THE BAA BETWEEN THE PARTIES, OUR TOTAL AGGREGATE LIABILITY TO YOU (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF OUR EMPLOYEES, AGENTS, CONSULTANTS AND SUBCONTRACTORS), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), PRODUCT LIABILITY, MISREPRESENTATION, RESTITUTION OR OTHERWISE SHALL BE LIMITED TO FIXING, REPAIRING OR OTHERWISE RECTIFYING ANY SERVICE FAULTS, OR WHERE APPLICABLE, THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES OR USD $10.00.
   
   SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.
   
   IN NO EVENT WILL ANY OF OUR GROUP BE LIABLE TO YOU (YOUR PATIENTS, EMPLOYEES, CONTRACTORS, AGENTS OR USERS) FOR ANY LOSSES, COSTS, DAMAGES CHARGES OR EXPENSES RESULTING FROM LOSS, MISAPPROPRIATION, MISHANDLING, UNAUTHORIZED ACCESS TO OR MODIFICATION OF DATA OR COMMANDS BY ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY OF OUR SERVICE PROVIDERS), OR FROM MISTAKES, OMISSIONS OR DELAYS IN TRANSMISSION OF INFORMATION, OR FROM INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SERVICE, DISABLING DEVICES, VIRUSES OR FAILURES OF PERFORMANCE, OR FROM THE IMPACT OF THE SERVICES ON YOUR INFORMATION OR COMMUNICATIONS SYSTEMS (FOR EXAMPLE, YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), OR FOR INTERCEPTION OR COMPROMISE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE NETWORK SERVICES OR ANY RECORD OR OTHER COMMUNICATIONS PROVIDED BY YOU, ANY PATIENT OR BY US UNDER THIS AGREEMENT.
   
   THIS PROVISION AND THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT SET OUT OUR ENTIRE FINANCIAL LIABILITY (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF OUR EMPLOYEES, AGENTS, CONSULTANTS AND SUBCONTRACTORS) TO YOU IN RESPECT OF ANY BREACH OF THIS AGREEMENT, ANY USE MADE BY YOU OF THE SERVICES AND ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 6 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
   
   Warranty Exclusions. WE LICENSE ACCESS TO THE SERVICES AND PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON¬INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES OR DATA WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY, AVAILABLE, USEABLE, UNINTERRUPTED OR ERROR-FREE. THE INTERNET CANNOT BE GUARANTEED TO BE 100% SECURE, AND WE CANNOT ENSURE OR WARRANT THE SECURITY OF ANY INFORMATION YOU PROVIDE TO US. You understand and agree that the Services are NOT intended to be used as a life-sustaining or interventional tool during medical emergencies or in environments requiring fail-safe performance. You also understand and agree that the Services do not in any way relieve you or your clinicians and/or other employees or agents from using their best medical judgment to determine a proper course of treatment for patients.
6. Notices. Notices under this Agreement must be in writing and delivered either: (a) in person, or (b) to a street address by Registered, Certified, or Express Mail (with return receipt) or (c) by a national reputable overnight delivery service that provides certification of delivery, or (d) by electronic mail if delivered by 4:00 p.m., receiver’s time, on a business day (and after that will be considered delivered on the next business day). All such notices will be addressed to the addresses and/or email addresses shown on the Enrollment Form associated with this Agreement (or as otherwise have been updated by prior written notice). Notices to us must include a copy to the Legal Department at 100 Abbott Park Road, Abbott Park, Illinois 60064, United States.
7. Entire Agreement. This Agreement, which specifically includes the Privacy Policy and any Business Associate Agreement (“BAA”) entered into between the Parties, constitutes the entire agreement between the parties relating to the Services. It supersedes and replaces any prior agreements, promises, or understandings between the parties (whether written or oral) about the Services. In the event of conflict between the terms of this Agreement and the terms of any BAA, the terms of the BAA shall control for all matters relating to protected health information and this Agreement shall control for all other matters.
8. Independent Contractors. The relationship between you and us is solely that of independent contractors and nothing in this Agreement is intended to create a partnership or joint venture between you and us.
9. Assignment. You are prohibited from assigning any of your rights or responsibilities under this Agreement without our prior written consent including in connection with the transfer of control or ownership of your locations or medical practice. Any such assignment without our prior written consent is null and void. Subject to the prohibition contained in this section, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
10. Benefit of the Parties. Except as expressly provided herein, you and we specifically intend that you and we are the only beneficiaries of this Agreement. No Patient or other person or entity who is not a party to this Agreement shall have any rights under or in connection with it, unless otherwise entitled by law.
11. Surviving Terms. Any part or promise of this Agreement that would, by its practical nature, survive the termination of this Agreement, will survive, including but not limited to Parts 1, 2, 4, 6 and Section 5(2).
12. Intervening Forces. If a party is prevented from performing either its obligations or its purposes under this Agreement by an act of God, public enemy, war, riot, disaster, storm, earthquake, other natural forces, by government order, decree or advisory, by public emergency, strike, significant curtailment of transportation systems or communications utilities, or by the intentional acts of anyone not a party to this Agreement, then that party, upon written notice to the other, will be excused from that performance for the reasonable duration of that event.
13. Waiver. If either party waives any breach of this Agreement, it will not be considered a waiver of any other breach of this Agreement.
14. Severability. If, for any reason, a court with proper jurisdiction holds that any part of this Agreement is invalid or cannot be enforced, all other parts will remain in effect. The invalid or unenforceable part will be reformed only to the extent necessary to make it valid and enforceable.
15. References. References to us will include our corporate parent, Affiliates, and subsidiaries. “Affiliate” means Abbott Laboratories Inc. and each entity that is directly or indirectly Controlling, Controlled by, or under common Control with Abbott Laboratories Inc. “Control” and its derivative terms, mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity.
16. Interpretation. No part of this Agreement or any related document will be construed against or interpreted to the disadvantage of any party by a court or other authority by reason of that party having drafted that part.
17. Access to Information by Regulation. If Section 1395x(v)(1) (I) of Title 42 of the United States Code applies to this Agreement, then we will, until four (4) years after the termination of this Agreement, make available to the Secretary of the United States Department of Health and Human Services, the Comptroller General of the United States General Accounting Office, or any of their authorized representatives, a copy of this Agreement and any books, documents, and records that are necessary to verify the nature and amount of the costs of the services we provided under this Agreement.
18. We are an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60- 741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, creed, religion, sex, national origin, marital status, age, citizenship, sexual orientation, gender identity and/or gender expression or status with respect to public assistance. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, creed, religion, sex, national origin, marital status, age, citizenship, sexual orientation, gender identity and/or gender expression or status with respect to public assistance, protected veteran or disability status. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
19. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Illinois.
20. Notice Regarding Apple. This sub-section only applies to the extent you are using our mobile application(s) on an iOS device in connection with the Services. You acknowledge that this Agreement is between you and us only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services and the content thereof. Your right to use the Services in application form on an iOS device is limited to a non-transferable license to use the application on any Apple-branded products that the user owns or controls and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation. All such responsibility is allocated between us and you under this Agreement. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You agree that Apple is not responsible for any maintenance and support services in connection with the Services. You hereby represent and warrant that (x) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (y) you are not listed on any U.S. Government list of prohibited or restricted parties.
21. Notice Regarding Google. This sub-section only applies to the extent you are using our mobile application(s) on an Android device in connection with the Services. You acknowledge that this Agreement is between you and us only, not with Alphabet Inc. (“Google”), and Google is not responsible for the Services and the content thereof. You agree that Google is not responsible for any maintenance and support services in connection with the Services. You agree to only use the Data and Information to provide care to Patients.
22. Dispute Resolution. If a dispute arises between the parties regarding this Agreement, the parties will attempt to resolve such dispute in good faith by direct negotiation by representatives of each party. If such negotiation does not resolve the matter within twentyeight (28) days after notice of the dispute is given, the matter will be resolved by the following alternative dispute resolution (“ADR”) procedure.
    
    To begin an ADR proceeding, a party shall provide written notice to the other party of the issues to be resolved by ADR. Within fourteen (14) days after its receipt of notice of ADR, the other party may, by written notice, add additional issues to be resolved. Within twentyone (21) days following receipt of the original ADR notice, the parties shall select a mutually acceptable independent, impartial and conflicts-free neutral to preside over the proceeding. If the parties are unable to agree on a mutually acceptable neutral within such period, each party will select one independent, impartial and conflicts-free neutral and those two neutrals will select a third independent, impartial and conflicts-free neutral within ten (10) days thereafter. None of the neutrals selected may be current or former employees, officers or directors of either party or its subsidiaries or affiliates. The parties shall convene in a location mutually agreed upon to conduct a hearing before the neutral no later than fifty-six (56) days after selection of the neutral (unless otherwise agreed upon by the parties).
    
    The ADR process shall include a pre-hearing exchange of exhibits and summary of witness testimony upon which each party is relying, proposed rulings and remedies on each issue, and a brief in support of each party’s proposed rulings and remedies not to exceed twenty (20) pages. The pre-hearing exchange must be completed no later than ten (10) days prior to the hearing date. Any disputes relating to the pre-hearing exchange shall be resolved by the neutral. No discovery shall be permitted by any means, including depositions, interrogatories, requests for admissions, or production of documents.
    
    The hearing shall be conducted on two (2) consecutive days, with each party entitled to five (5) hours of hearing time to present its case, including cross-examination. The neutral shall adopt in its entirety the proposed ruling and remedy of one of the parties on each disputed issue but may adopt one party’s proposed rulings and remedies on some issues and the other party’s proposed rulings and remedies on other issues. The neutral shall rule within fourteen (14) days of the hearing, shall not issue any written opinion, and shall not refer any portion of the dispute to mediation without the parties’ prior, written consent. The rulings of the neutral shall be binding, and non-appealable and may be entered as a final judgment in any court having jurisdiction. The neutral(s) shall be paid a reasonable fee plus expenses. These fees and expenses, along with the reasonable legal fees and expenses of the prevailing party (including all expert witness fees and expenses), the fees and expenses of a court reporter, and any expenses for a hearing room, shall be paid as follows:
    
    (a) if the neutral(s) rule(s) in favor of one party on all disputed issues in the ADR, the losing party shall pay 100% of such fees and expenses.
    
    (b) if the neutral(s) rule(s) in favor of one party on some issues and the other party on other issues, the neutral(s) shall issue with the rulings a written determination as to how such fees and expenses shall be allocated between the parties. The neutral(s) shall allocate fees and expenses in a way that bears a reasonable relationship to the outcome of the ADR, with the party prevailing on more issues, or on issues of greater value or gravity, recovering a relatively larger share of its legal fees and expenses.
23. Contact. If you have any questions regarding this Agreement, please contact us at myMerlin@abbott.com.

Version Date: May 2023