SIMBUS End User License Agreement (EULA)

This SIMBUS End User License Agreement (the “Agreement”) is a legal agreement for the license of SIMBUS Software (the “Software”) and related Compliance Services (the “Services”) (Collectively, the “Products and Services). Please read our Terms of Sale and this Agreement carefully before accepting below. By completing the registration form and clicking AGREE at checkout, you are agreeing to all terms and conditions in our Terms of Sale and this Agreement:

This Agreement summarizes the entire functions and responsibilities of the Software.  This Agreement also outlines your responsibilities and outlines our process and billing procedures.

 

ENGAGEMENT

We, Medical Technology Solutions, LLC, a Limited Liability Company (“MTS”) are being retained by you to make available the Products and Services outlined in this Agreement.

 

SERVICES AND FEES

This Agreement covers MTS’s service offerings via the Software. We will notify you as we introduce new products and product enhancements, which may be governed by separate agreements.  The Products and Services and their fees are described below.

All Products and Services provided by us under this Agreement are for educational and consulting purposes only. The ultimate responsibility for acquiring and maintaining compliance and responding to any and all audits, compliance reviews, or regulatory inquiries is with you.  We make every effort to provide the most up to date content as required by federal law, but we do not guarantee its accuracy and timeliness.  You accept responsibility for taking the actions necessary to maintain ongoing compliance with all government and state standards required for compliance. Nothing in the Software, related documentation or advice should be construed as legal advice.  Please contact your attorney for all legal matters related to federal and state privacy and security laws.

MTS will maintain a copy of all client policies, procedures, forms, and tasks, and this data will be backed up daily.  MTS will use its best efforts to ensure the integrity of this data but is not liable for any consequential damages that may result from its loss.  We encourage and recommend and you are liable for printing and storing of all edited policies, procedures, forms and tasks.

 

For Compliance Service:

 

Services

• Content will be provided continuously until cancelled.
• We will provide online access to customizable content to be used by you to achieve compliance when combined with your actions. This will include but not be limited to: Policies and Procedures, Forms, Tasks, and links to Resources. We continually add updates as we receive them.
• You will receive a private dashboard where you will assign a user admin and also have the ability to add users who receive their own private dashboard.
• We will provide various Software use training tools on your website including video and text.
• We will provide varied levels of support including but not limited to a private forum, an internal email system, a support ticket system and a phone consultancy service for a fee.
• We will allow 3^rd party websites (who allow this technology) to be framed within our dashboard.  We are not liable for the content of 3^rd party sites. Additional fees may apply.

 

Fees

The Software is provided by MTS as a membership product which may include a setup fee and includes an ongoing monthly or annual fee.  By purchasing a membership to use the Software, you give us access to charge your credit card on file with MTS each month or each 12-month period. This monthly or annual fee will continue until cancelled.  You hereby authorize MTS to charge the initial membership payment and any recurring fees using the payment information you provide.  Access to your private dashboard and all content will continue until canceled by you or terminated by MTS.  We will take every effort to notify you via email if there are any billing issues. MTS reserves the right, in its sole discretion, to discontinue your membership and access to the Software after 3 failed attempts to collect the monthly or annual fee.

 

Client Responsibility

 

For the SIMBUS Service:

• You agree to designate and provide a team member to participate in the preparation for initial compliance and for ongoing maintenance.  This team member will be responsible for devoting sufficient time to complete all assigned tasks, policies, procedures and forms and to attest to their completion through the system.
• Each team member will have his personal profile within the system and contact information continuously up to date.
• Each team member will assign users to the system if needed and continuously update user status as needed.
• You will notify MTS immediately of any change in status to users that are registered to access the Software.  It is your responsibility to adequately orient new or changed team members who may join your team during the compliance process.
• You accept responsibility for ongoing compliance with all government and state standards required for compliance.  Furthermore, you agree that the Products and Services are not designed to take the place of the physical activities that your organization must take to support the documents provided.

 

CLIENT NON-COMPETE AGREEMENT

For good and valuable consideration, including, but not limited to, the access and use of our Products and Services, the receipt of which is hereby acknowledged, you, the client, hereby agree not to directly or indirectly compete with the business of MTS and its successors.

You, the client acknowledge that MTS and its licensors provides you access to trade secrets, technology, systems and other confidential data and good will, including, but not limited to the access and use of our Products and Services.  You, the client, agree to retain said information as confidential and not to use said information on his, her or its own behalf or disclose same to any third party. You, the client, also agree to take reasonable security measures to prevent accidental disclosure.

You, the client, shall not own, manage, operate, consult or be employed in a business substantially similar to, or competitive with, the present business of MTS or its licensors or such other business activity in which the MTS may engage during the term of engagement under this Agreement.

This non-compete agreement shall extend worldwide and shall be in full force and effect during the period of engagement under this Agreement and for 2 years following engagement termination under this Agreement, notwithstanding the cause or reason for termination.

 

CONFIDENTIAL INFORMATION

For the purpose of this Agreement, “Confidential Information” shall mean confidential or proprietary information received from one party, or its employees or agents by another. “Confidential Information” shall specifically include either Party’s customer lists, business models, methods, plans, web applications, documentation, manuals, policies, procedures and forms as used by either party or either party’s partner companies.

All Confidential Information shall remain in confidence by each party’s employees and agents and shall not be disclosed to any third party, and shall be protected with the same degree of maintenance as the parties normally use in the protection of their own confidential and proprietary information. The parties further agree not to use or reproduce Confidential Information for any purpose, except as contemplated under this Agreement.

Nothing in this agreement shall be construed to grant either party a license to any Confidential Information, or to any copyrights, trade secrets or other intellectual property rights derived from the Confidential Information. The parties specifically agree and understand that all of each party’s products and services, and the ideas and expressions related thereto, and all physical embodiments thereof and material developed in relation thereto shall remain the property of the originating Party.

 

BILLING PROCEDURES & COLLECTIONS

 

Invoices, Late Charges and Work Cessation

You will be billed for the Product and Services according to your selection at checkout.  Payments are deducted each month unless client selects the annual option.  All payments are processed through a 128 bit SSL secure payment system.  Failure to pay renewed monthly or annual subscriptions may result in the immediate suspension of access to the Software. We will attempt to bill the credit card on file 3 times.  At that time if payment has not been received, we will suspend the account and keep the data on file for 60 days.  If payment is brought current within that time, you will have access to your content.  After 60 days MTS reserves the right to delete all data within the client’s dashboard.

MTS is not responsible for any late tax filings or penalties, fines, taxes, sales tax, or any other taxes or other charges that may be assessed. You agree to indemnify and hold MTS harmless from and against any liabilities, interest, penalties or fees assessed against MTS arising from your failure to pay any such taxes and charges.  All prices are subject to change at any time, in our sole discretion.

 

Collection Costs, Arbitration and Governing Law

In the event of a dispute related to or arising from our Terms of Sale or this Agreement, you and MTS agree to submit to resolution by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Such arbitration shall be binding and final. However, MTS is not required to submit to arbitration any claim for unpaid fees and expenses if the amount involved is $2,000 or less.

Our Terms of Sale and this Agreement is made, or to be performed, in Orange County, California, and shall be interpreted, construed and enforced in accordance with California law. In the event that any dispute arises under this Agreement, or relating to our obligations to each other, you consent to jurisdiction in Orange County, California. We both agree to waive our right to a jury trial.

You further agree that you may only resolve disputes with MTS on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.  Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our our Terms of Sale and this Agreement.

 

INDEMNIFICATION

You agree, as part of this Agreement, to indemnify and hold harmless MTS  from and against any and all claims, losses, damages, liabilities, costs, and other expenses of any kind whatsoever (including all attorneys’ fees and collection or court costs) arising from or in connection with your breach of this Agreement and/or the your use of the Products and Services provided by MTS.

 

LIMITATION OF LIABILITY

YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY. PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT AND OUR TERMS OF SALE AND/OR FOR ANY BREACH OF THIS AGREEMENT AND OUR TERMS OF SALE IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH PRODUCTS AND SERVICES DURING THE TERM OF THIS AGREEMENT.

YOU AGREE THAT MTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE PRODUCT AND SERVICES OR FOR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PRODUCT AND SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF MTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU FURTHER AGREE THAT MTS. SHALL NOT BE HELD LIABLE FOR ANY DAMAGES ARISING FROM, THE INTERRUPTION, SUSPENSION OR TERMINATION OF PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.

 

WARRANTY

YOU AGREE THAT YOUR USE OF THE PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. USE OF THE PRODUCTS AND SERVICES DOES NOT IN ANYWAY GUARANTEE COMPLIANCE.

 

TERMINATING THIS AGREEMENT

You have the right to terminate this engagement at any time.  Termination can be done through the system, by phone or by email. Upon termination of the Agreement, all fees owed to MTS will be immediately payable in full, including fees for services provided for the current period through the date of termination.

MTS reserves the right, in its sole discretion, to withdraw and/or stop the sale and/or licensing of its Products and Services, including, but not limited to the Software, at any time and for any reason.

 

ENTIRE AGREEMENT: CHANGE OF TERMS NOTICE

This Agreement and our Terms of Sale contains the entire agreement between you and MTS.  Any modifications to this Agreement shall be noticed by the posting of new terms and conditions within your dashboard in the profile section. These changes shall become effective thirty days after their posting. You may reject the amendments by providing written notice to us and terminating the Products and Services (without penalty).

 

ACCEPTANCE

The Terms of Sale and this Agreement are agreed to and accepted by you and MTS.  IF YOU DO NOT AGREE TO OUR TERMS OF SALE AND ALL OF THE FOREGOING TERMS AND CONDITIONS IN THIS AGREEMENT, CLICK DECLINE. YOUR USE OF OUR PRODUCTS AND SERVICES, INCLUDING, WITHOUT LIMITATIONS, THE SOFTWARE CONSTITUTES YOUR AGREEMENT, FOR YOU AND YOUR COMPANY, TO BE BOUND BY OUR TERMS OF SALE AND THE TERMS AND CONDITIONS OF THIS AGREEMENT.