OPTIMA INTEGRATED HEALTH, INC.
BY ACCESSING OR USING THIS WEBSITE, YOU (“RECIPIENT”) ARE ENTERING INTO THIS NONDISCLOSURE AGREEMENT (THIS "AGREEMENT") AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. Please read this Agreement carefully, and do not access this website if you are unwilling or unable to be bound by this Agreement.
1. PURPOSE. Optima Integrated Health, Inc. (“Company”) and Recipient wish to explore a business opportunity of mutual interest and in connection with this opportunity and access of this website, Company may disclose to Recipient certain confidential technical and business information which Company desires Recipient to treat as confidential.
2. CONFIDENTIAL INFORMATION. “Confidential Information” means any information disclosed to Recipient by Company, either directly or indirectly in writing, orally or by inspection of tangible objects, including without limitation trade secrets, technology, information pertaining to business operations and strategies and information pertaining to customers and patients, pricing and marketing. Confidential Information may also include information disclosed to Company by third parties. Confidential Information shall not, however, include any information which Recipient can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Recipient by Company; (ii) becomes publicly known and made generally available after disclosure to Recipient by Company through no action or inaction of Recipient; or (iii) is in the possession of Recipient, without confidentiality restrictions, at the time of disclosure by Company as shown by Recipient’s files and records immediately prior to the time of disclosure.
3. NON-USE AND NON-DISCLOSURE. Recipient agrees not to use any Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between Recipient and Company. Recipient agrees not to disclose any Confidential Information to any third parties. Recipient shall not disclose Confidential Information to employees of Recipient, except to those employees who are required to have the information in order to evaluate or engage in discussions concerning the business relationship contemplated herein, and only to those employees who have signed a non-use and nondisclosure agreement in content at least as protective as the provisions hereof prior to any disclosure of Confidential Information to such employees. Recipient shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody Company's Confidential Information and which are provided to Recipient hereunder.
4. MAINTENANCE OF CONFIDENTIALITY. Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Recipient shall take at least those measures that Recipient takes to protect its own most highly confidential information. Recipient shall not make any copies of Confidential Information unless the same are previously approved in writing by the Company. Recipient shall reproduce Company’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. Recipient shall immediately notify Company in the event of any unauthorized use or disclosure of the Confidential Information.
5. NO OBLIGATION. Nothing herein shall obligate Company or Recipient to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
6. NO WARRANTY. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
7. RETURN OF MATERIALS. All documents and other tangible objects containing or representing Confidential Information and all copies thereof which are in the possession of Recipient shall be and remain the property of Company and shall be promptly returned to Company upon Company’s request.
8. NO LICENSE. Nothing in this Agreement is intended to grant any rights to Recipient under any patent, mask work right or copyright of Company, nor shall this Agreement grant Recipient any rights in or to Confidential Information except as expressly set forth herein.
9. TERM. This Agreement shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of Recipient.
10. REMEDIES. Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling Company to obtain injunctive relief in addition to all legal remedies.
11. RECIPIENT INFORMATION. Company does not wish to receive any confidential information from Recipient, and Company assumes no obligation, either express or implied, with respect to any information disclosed by Recipient.
12. MISCELLANEOUS. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns, except that Recipient may not assign or transfer this Agreement, by operation of law or otherwise, without Company’s prior written consent. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO CONFLICT OF LAWS PRINCIPLES. This document contains the entire agreement between the parties with respect to the subject matter hereof. If any provision of this Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. The parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement.
Evaluation License Agreement
OPTIMA 4BP BETA EVALUATION LICENSE AGREEMENT
1. Acceptance. By using, evaluating, or testing the Optima4BP beta support tool and any related services (“Optima4BP Beta”); or registering with Optima Integrated Health, Inc. (“Optima”); You agree to be bound by this evaluation license agreement (this “Agreement”). Optima reserves the right, at its sole discretion, to modify this Agreement at any time effective upon notice to You. Continued use of Optima4BP Beta following notice shall mean You have read and accept such modifications. This Agreement is effective as of the earlier of either: (i) the date this Agreement is accepted by selecting the “I Accept” option presented on the screen upon accessing Optima4BP Beta, or (ii) the date You begin using Optima4BP Beta.
2. License Grant & Restrictions. Optima hereby grants You a trial, royalty-free, limited, revocable, non-exclusive, non-transferable, non-sublicensable, worldwide right and license for the Permitted Use of Optima4BP Beta, subject to the terms and conditions contained herein. For the purposes of this Agreement, the Permitted Use shall mean evaluating and testing Optima4BP Beta using mock patient cases (i.e., fictitious scenarios containing no information regarding any real patients or individuals). In return, You agree to make reasonable efforts to: help Optima test specific features and functions of Optima4BP; respond to Optima’s inquiries; and to notify Optima of errors or suggestions for improvement in Optima4BP. After using Optima4BP Beta, You, in Your sole discretion, may, but are not required to, engage in discussions regarding a further business relationship with Optima.
2.1 You shall maintain the confidentiality of any password used to access Optima4BP Beta. You shall not publish or otherwise make available Optima4BP Beta or related content to any third party without first submitting to, and receiving permission from, Optima in writing.
2.2 You shall not, nor permit any employee or other third party to, by any means: reverse engineer or ascertain, derive or appropriate the source code or any trade secret information in Optima4BP Beta. You shall not alter or remove any notices, graphics or text in Optima4BP Beta or modify Optima4BP Beta. You may not rent, lease or sublicense Optima4BP Beta in any way. Your rights in Optima4BP Beta are limited to those expressly granted in this Agreement. Optima reserves all other rights and licenses not expressly granted hereunder.
2.3 You may use Optima4BP Beta only in connection with the Permitted Use and are responsible for all activity occurring under the user name and password provided. You shall notify Optima immediately of any unauthorized use of any password or account or any other known or suspected breach of security of which You are aware. You shall not: (i) use Optima4BP Beta to send or store spam; infringing, obscene, unlawful or tortious material; material containing software viruses or other harmful matter; (ii) interfere with or attempt to gain unauthorized access to Optima4BP Beta; (iii) otherwise fail to abide by all applicable laws, treaties and regulations in connection with Your use of Optima4BP Beta, including those related to data privacy, HIPAA, international communications and the transmission of technical or personal data.
3. Ownership. This Agreement is not a sale and all rights, title and interest to Optima4BP Beta or related content, modifications thereto, and information provided by Optima’s and Your intellectual property are the property of and shall remain with Optima. The Optima4BP name, logo and associated product names are trademarks of Optima, and no right or license is granted to use them. You shall refrain from any unauthorized reproduction or disclosure of Optima4BP Beta or any portion thereof. You shall not contest or challenge in any manner Optima’s ownership of Optima4BP Beta. You acknowledge that noncompliance with the provisions herein would cause irreparable harm to Optima and that such noncompliance shall entitle Optima to equitable relief as well as money damages without the requirement of posting bond.
4. Term; Termination. This Agreement shall remain in effect until terminated by either of the parties. Any unauthorized use or copying of Optima4BP Beta or related content shall be deemed a material breach of, and shall automatically terminate Your rights under, this Agreement. Optima, in its sole discretion, may terminate Your password, account or use of Optima4BP Beta at any time with or without cause. You may terminate this Agreement upon seven (7) days’ notice to Optima.
5. Representations & Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to Optima4BP Beta.
OPTIMA4BP BETA IS INTENDED TO BE A TEST ONLY, AND SHOULD NOT BE USED IN CONNECTION WITH ANY REAL-LIFE MEDICAL CASES, SCENARIOS, PATIENTS OR INDIVIDUALS. OPTIMA4BP BETA IS NOT FDA OR HIPAA COMPLIANT, AND IT IS SOLELY YOUR RESPONSIBILITY TO AVOID ANY USE OF OPTIMA4BP BETA WHICH WOULD VIOLATE ANY SUCH APPLICABLE LAW OR REGULATION.
6. Indemnification. You shall indemnify, defend and hold harmless Optima against any claims and expenses (including attorneys' fees and costs) arising out of: (i) a violation of Your representations and warranties; or (ii) Your breach of this Agreement.
7. Disclaimer of Warranties. OPTIMA MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF OPTIMA4BP BETA, OR ANY RELATED CONTENT. OPTIMA DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF OPTIMA4BP BETA SHALL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, OPTIMA4BP BETA, OR SYSTEM; (B) ANY STORED DATA SHALL BE ACCURATE OR RELIABLE, (C) ERRORS OR DEFECTS SHALL BE CORRECTED OR TECHNICAL SUPPORT PROVIDED, OR (D) OPTIMA4BP BETA OR RELATED SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OPTIMA4BP BETA AND ALL RELATED CONTENT ARE PROVIDED TO YOU “AS IS.” ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY OPTIMA.
8. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to You.
9. Notice. Optima may give notice by means of a general notice on Optima4BP Beta, Optima’s website or through electronic mail or written communication to Your address on record. You may give notice to Optima (effective when received by Optima) only by any of the following: letter sent by confirmed email to Optima at the following email address [NTD: Please provide email address]; or letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Optima at the following address: [NTD: Please provide mailing address].
10. Assignment; Change in Control. This Agreement may not be assigned by You without the prior written approval of Optima. Optima may freely assign this Agreement.
11. General. This Agreement shall be governed by the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any disputes or claims arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of California. Neither this Agreement nor use of Optima4BP Beta creates a partnership, employment or agency relationship between the parties. Optima’s failure to enforce any right or provision in this Agreement shall not constitute a waiver unless Optima so acknowledges and agrees in writing. This Agreement comprises the entire agreement between the parties regarding Your right to use Optima4BP Beta and supersedes all prior discussions or agreements between the parties regarding the subject matter contained herein.