DFinery, Inc. EULA

Effective Date: March 10, 2019

This is an agreement ("Agreement") between DFinery, Inc. ("we", "us", "our", company", "DFinery") and you, an End User (either an individual or an entity) ("you", "user", "yours", or "subscriber") of applications, services and software ("Service") as described herein. By establishing, activating, using, or paying for the Service, you acknowledge that you have read and understood these terms, you agree to the terms and conditions in this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms, and to the prices, charges, and conditions provided to you in association with your enrollment. This Agreement governs the license, installation and use of the Service available to you through Google Play Store, iTunes App Store, Amazon App Store, Clover App Marketplace, and other app marketplaces or similar services, as well as the use of related services provided by us including, but not limited to web-based services, application services, reporting services and agency services. If you do not agree to these terms, do not purchase access to the Service, do not use the Service and immediately delete the Service from any device the Service was installed on and/or accessed. We reserve the right to modify these terms without notice. Your continued usage of the Service constitutes your acceptance of these terms. Violation of any terms will result in suspension and/or termination of your account with us.

License

DFinery grants you a limited, revocable, non-exclusive, non-transferable license to download, install and use the Service on device(s) strictly in accordance with the terms of this Agreement.

Service Terms

The Service is offered as free or paid. The paid Service is offered on a month-to-month payment basis, a yearly payment basis, a one-time payment basis, a per-use metered payment basis, or a combination thereof.

Restrictions

You agree not to, and you will not permit others to:

  • rent, lease, sell, license, assign, transmit, host, distribute, outsource, disclose or otherwise commercially exploit the Service or make the Service available to any third party.
  • modify, copy, clone, disassemble, decrypt, reverse compile or reverse engineer any part of the Service.

Modifications and updates

We reserve the right to modify, suspend or discontinue, temporarily or permanently, the Service or any related service to which it connects, with or without notice and without liability to you.

From time to time we may provide changes, enhancements or improvements to the features/functionality of the Service, which may include patches, bug fixes, updates, upgrades, changes, removals and other modifications ("Changes").

Changes may add, modify or delete certain features and/or functionalities of the Service. You agree that we have no obligation to (a) provide any Changes, or (b) continue to provide or enable any features and/or functionalities of the Service to you.

You further agree that all Changes will be (a) deemed to constitute an integral part of the Service, and (b) subject to the terms and conditions of this Agreement.

Third-Party Services

The Service may display, include or make available third-party content (including, but not limited to, data, information, applications and other products or services) or provide links to third-party websites or services ("Third-Party Services").

You acknowledge and agree that we shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and shall not have any liability or responsibility to you or any other person or entity for any Third-Party Services.

Suspension and Termination

We may at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice. You may terminate this Agreement by uninstalling and/or deleting the Service and all copies thereof from any device the Service was installed on and/or accessed.

Upon termination of this Agreement, you shall cease all use of the Service and delete the Service from any device the Service was installed on and/or accessed. Upon termination of this Agreement all rights granted to you under this Agreement will also terminate.

Termination of this Agreement will not limit any of DFinery’s rights or remedies at law or in equity in case of breach by you (during the term of this Agreement) of any of your obligations under the present Agreement.

Intellectual Property Rights

Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from us to you. The Service, including without limitation all copyrights, patents, trademarks, trade secrets and other intellectual property rights are, and shall remain, the sole and exclusive property of DFinery.

Indemnification

You agree to indemnify, defend and hold harmless DFinery and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Service or your breach of this Agreement. Furthermore, you agree that DFinery assumes no responsibility for the content you submit or make available through the Service.

Limitation of liability

To the fullest extent permitted by applicable law, in no event will DFinery or its affiliates, or any of its or their respective licensors or service providers, have any liability arising from or related to your use of or inability to use the Service or the content and services for: (a) personal injury, property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, business interruption, computer failure or malfunction or any other consequential, incidental, indirect, exemplary, special or punitive damages; (b) direct damages in amounts that in the aggregate exceed the amount actually paid by you for the Service.

The foregoing limitations will apply whether such damages arise out of breach of contract, tort (including negligence) or otherwise and regardless of whether such damages were foreseeable, or company was advised of the possibility of such damages.

HIPAA Compliance Terms

Some clients handle electronic protected health information subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).  The following terms apply to DFinery obligations regarding electronic protected health information stored by the client with DFinery

Definitions

Catch-all definition:

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

Specific definitions:

(a) Business Associate.  “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean DFinery, Inc.

(b) Covered Entity.  “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the DFinery client subject to HIPAA.

(c) HIPAA Rules.  “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

Obligations and Activities of Business Associate

Business Associate agrees to:

(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;

(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;

(c) Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware.  The covered entity agrees to notify any affected patient and government agency as required;

(d) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information;

(e) Make available protected health information in a designated record set to the covered entity as necessary to satisfy covered entity’s obligations under 45 CFR 164.524.  If the business associate receives a request for access directly from the individual rather than the covered entity, the business associate will respond to a request for access by forwarding the individual’s request to the covered entity to fulfill.  The covered entity has sole responsibility for handling requests for HIPAA information from individual clients of the covered entity.

(f) Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity’s obligations under 45 CFR 164.526;

(g) Maintain and make available the information required to provide an accounting of disclosures to the covered entity as necessary to satisfy covered entity’s obligations under 45 CFR 164.528.  The business associate will respond to a request for an accounting of disclosures that the business associate receives directly from the individual client of the covered entity by forwarding the request to the covered entity;

(h)  To the extent the business associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); and

(i) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

Permitted Uses and Disclosures by Business Associate

(a) Business associate may only use or disclose protected health information as referenced in these TOS as necessary to perform the services set forth in the TOS.  In addition to other permissible purposes, the parties should specify whether the business associate is authorized to use protected health information to de-identify the information in accordance with 45 CFR 164.514(a)-(c). 

(b) Business associate may use or disclose protected health information as required by law.

(c) Business associate agrees to make uses and disclosures and requests for protected health information consistent with covered entity’s minimum necessary policies and procedures.

(d) Business associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by covered entity except for the specific uses and disclosures set forth below.

(e) Business associate may use protected health information for the proper management and administration of the business associate or to carry out the legal responsibilities of the business associate.

(f) Business associate may disclose protected health information for the proper management and administration of business associate or to carry out the legal responsibilities of the business associate, provided the disclosures are required by law, or business associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies business associate of any instances of which it is aware in which the confidentiality of the information has been breached.

(g) Business associate may provide data aggregation services relating to the health care operations of the covered entity.

Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions

(a)  Covered entity shall notify business associate of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation may affect business associate’s use or disclosure of protected health information.

(b) Covered entity shall notify business associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect business associate’s use or disclosure of protected health information.

(c)  Covered entity shall notify business associate of any restriction on the use or disclosure of protected health information that covered entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect business associate’s use or disclosure of protected health information.

Permissible Requests by Covered Entity

Covered entity shall not request business associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity, except that business associate may use or disclose protected health information for, and the agreement includes provisions for, data aggregation or management and administration and legal responsibilities of the business associate.

Disclaimer of warranties

The Service is provided to licensee “as is” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, DFinery, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Service, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice.

Without limiting the foregoing, neither DFinery nor any DFinery's providers, parnters and/or affiliates make any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Service, or the information, content, and materials or products included thereon; (ii) that the Service will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Service; or (iv) that the Service, its servers, the content, or e-mails sent from or on behalf of DFinery are free of viruses, scripts, trojan horses, worms, malware or other harmful components.

Without limitation to the foregoing, DFinery provides no warranty or undertaking, and makes no representation of any kind that the Service will meet your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

Export Compliance

You may not export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into or to a nation or a resident of any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By installing or using any component of the Service, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

Amendments to this Agreement

We reserve the right, at our sole discretion, to modify or replace this Agreement at any time with or without notice. By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service and you shall cease all use of the Service and delete the Service from any device the Service was installed on and/or accessed.

Severability

If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not effect a party's ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute waiver of any subsequent breach.

Governing Law

The laws of New York, United States, excluding its conflicts of law rules, shall govern this Agreement and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

California Privacy Rights

Residents of the State of California, under certain provisions of the California Civil Code, have the right to request from companies conducting business in California a list of all third parties to which the company has disclosed certain personal data, as defined under California law, during the preceding year for third party direct marketing purposes. There is a limit of one request per calendar year. In your request, you must supply appropriate evidence of your identity and attest to the fact that you are a California resident and provide a current California address for our response. You may request the information by writing to privacy@waivermaster.com. Some web browsers incorporate a “Do Not Track” feature that signals to websites that you visit that you do not want to have your online activity tracked. California residents are entitled to know how DFinery, Inc. responds to “Do Not Track” signals. How browsers communicate the Do Not Track signal is not yet uniform, so a standard technological response has not yet been developed by the appropriate technology communities. For this reason, we do not respond to Do Not Track signals currently. To opt out of direct advertising on our website, please send a request to the address above. The effect of an opt-out will be to stop direct advertising, but it will still allow the collection of usage data for certain purposes (e.g., research, analytics, and internal online services operation purposes).

Use of Service by Minors. 

We comply with the requirements of the Children’s Online Privacy Protection Act. You must be at least 18 years old to have our permission to use the DFinery website. If you are between the ages of 13 and 17, or under the age of majority where you live, you represent that your legal guardian has reviewed and agreed to this privacy policy.

Contact Information

If you have any questions about this Agreement, please contact us by sending an email to support@waivermaster.com

Entire Agreement

The Agreement constitutes the entire agreement between you and us regarding your use of the service and supersedes all prior and contemporaneous written or oral agreements between you and us. You may be subject to additional terms and conditions that apply when you use or purchase other services owned and/or provided by us, which we will provide to you at the time of such use or purchase.


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