Application End User License Agreement
This end user license agreement (this “Agreement”) is a legal agreement between Epic Systems Corporation (“Epic”) and you (“You”) governing Your installation and use of the mobile version of the Epic application entitled “MyChart” (the “App”), which App is provided to you by Epic on behalf of Your healthcare provider (“Your Provider”). The App enables end users to access, review and use data made available by Your Provider. Nothing in this Agreement gives You any right or license to the web-based version of Epic’s MyChart application, which is governed by a separate agreement between You and Your Provider. All access to and use of the App is subject to the terms of this Agreement.
Please carefully read this Agreement. By clicking the “Accept” button or by continuing to use the App, You acknowledge that you have read, understand, and accept the terms of this Agreement. If You do not accept the terms, then do not use the App and remove the App from Your device. If You do not agree to the terms of this Agreement, You may not use the App.
Epic reserves the right, at any time, to modify the functionality of the App or the terms of this Agreement by making such modification available on the App or by providing other notice to you. Any modification will be effective immediately upon posting on the App or such other notice. If you do not approve of the modifications, you may terminate this Agreement at any time as set forth in Section 11. If You do not terminate this Agreement, You will be deemed to have agreed to such modification through your continued use of the App.
ARBITRATION NOTICE; CLASS WAIVER; WAIVER OF TRIAL BY JURY. THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 17 BELOW. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND EPIC WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. SCOPE OF LICENSE
a. LICENSE. You may use the App for personal purposes in accordance with this Agreement. Subject to Your compliance with the terms of this Agreement, Epic grants to You a non-exclusive, personal, non-transferable, non-sublicensable, limited license to use the App on any device You own or control, solely for the purpose of performing the functions and tasks available to You as an end user of the App. Your use of the App is strictly limited as provided in this Agreement. No other use of the App is permitted. Epic has no responsibility or liability with respect to any arrangement between You and Your Provider or Your use or acceptance of any health care or medical advice from Your Provider.
b. INTELLECTUAL PROPERTY. Epic reserves all ownership and intellectual property rights, including, without limitation all trade secrets, patents and patent applications, copyrights, trademarks, trade names, service marks, moral rights, contractual rights and other intellectual property and property rights in and to the App. The Epic name and logo, along with the product and service names associated with the App are trademarks of Epic (or Your Provider or other third party providers) and no right or license is granted to you to use them. The App and any updates, upgrades or derivative works to the App are, and will remain, the copyrighted work of Epic. The databases, software, hardware, and other technology used by or on behalf of Epic to operate the App (the “Technology”) and their and the App’s structure, organization, and underlying data, information and source code constitute valuable trade secrets and intellectual property of Epic and no right or license is granted to You to access or use them. The App is licensed to You, not sold.
c. THIRD PARTY PROVIDER LICENSE AGREEMENT. The App may enable access to Epic and third party services and systems, including those of Your Provider (collectively and individually, “Services”). You acknowledge certain Services enabled through the App may be provided pursuant to a license between You and Your Provider to which You must agree before using the Services.
d. UPGRADES. The terms of this Agreement will govern any upgrades provided to You by Epic that replace and/or supplement the App, unless such upgrade is accompanied by a separate license agreement in which case the terms of the new license will govern. You agree to promptly install any such upgrade and cease use of the prior version.
2. LICENSE LIMITATIONS
a. This Agreement gives You only limited rights to use the App as set forth above. Epic reserves all other rights not expressly granted to You. You may not and You may not permit any third party to: (1) publish, discuss, release, broadcast or otherwise disseminate to any third party, the results of any benchmark or comparison tests of the App without the written permission of Epic; (2) work around technical limitations in the App, including any access restrictions; (3) reverse engineer, decompile, or disassemble the App, except and only to the extent that applicable law expressly permits for purposes of interoperability; (4) incorporate the App into any other software product; (5) use the App in any manner that is illegal, unlawful or abusive including, without limitation, to commit or promote any fraud or identity theft, to send or originate any threatening or harassing materials, to initiate or participate in any denial of service or hacking or cracking, to harass, abuse, stalk, threaten, or defame any third party, or to store, send or receive any content that infringes or misappropriates any intellectual property or other proprietary rights; (6) use the App in any manner that could damage, disable, overburden, or impair the App; (7) use automated scripts or bots to use or access the App; (8) use the app to harvest or collect contact information of third parties by any means; (9) distribute, lease, lend, loan, sell, resell, redistribute, license, sublicense, or transfer any of your rights to access or use the App or otherwise make the App available to any third party; (10) modify, alter, reproduce, or create any derivative work of the App without the prior written permission of Epic or Your Provider; (11) remove or obscure or alter any copyright notice or other proprietary rights notice (including the Epic logo) from the App; and (12) interfere in any manner with the operation or hosting of the App or Technology to gain unauthorized access to the App or Technology. Any attempt to do any of the above is a violation of the rights of Epic and may be pursued to the fullest extent allowed by law.
b. You agree that any Services and materials provided by Your Provider may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services or the materials provided by Your Provider. No portion of the Services or the materials provided by Your Provider may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on, or exploit in any unauthorized way, the Services or the materials provided by Your Provider.
c. You are not permitted to use the App for any purpose other than as expressly permitted under this Agreement. If You breach the restrictions of this Agreement, You may be subject to prosecution and damages. You acknowledge that Epic may audit Your use of the App.
3. COLLECTION OF DATA, DATA PRIVACY, APPLICABLE POLICIES AND TERMS
a. You agree that Epic and Your Provider may collect, store, and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripheral devices, as well as personal information, user location data, and user content (all such data, collectively, “User Data”). Epic and Your Provider may use User Data to improve products, to provide services or technologies to You, and to facilitate the provision of services or functionality for the App, including, but not limited to authentication, performance optimization, software updates, product support and other services to You related to the App.
b. BY CLICKING ON THE “ACCEPT” BUTTON, YOU EXPRESSLY CONSENT TO THE COLLECTION, STORAGE, PROCESSING, MAINTENANCE, UPLOADING, SYNCING, TRANSMITTING, SHARING, AND DISCLOSURE OF USER DATA. By continuing to use the App, You indicate Your continued consent to such collection, storage, processing, maintenance, uploading, syncing, transmitting, sharing, and disclosure of User Data as well as any collection, storage, transmission and use of data of the type and in the manner described in the “About” box, if any, located within the App.
c. In addition to the terms of this Agreement, Your access to and use of the App and all Services is subject to Epic’s then-current policies relating to the App, including, without limitation, the Epic Privacy Policy, available at https://www.epic.com/about/privacypolicies#mobile-policy-patient (the “Privacy Policy”). You expressly consent to the use and disclosure of personally identifiable information and other data and information as described in the then-current Privacy Policy for the App.
4. NON-US USERS
Epic is a Corporation based in the United States. The personal information that You may provide when registering to use the App will be used in connection with Your use of the App and will be transferred to and maintained in Epic’s corporate records, which are generally held in the United States. If You do not consent to this transfer, do not accept this Agreement.
5. THIRD PARTY SERVICES AND MATERIALS
a. SERVICES. The App enables access to Services, including certain Services licensed under Your Provider’s own terms. Use of the Services may require that You accept additional terms of service to use the Services. You further understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable. Your access to and use of the Services is at Your sole risk. Epic does not warrant or endorse, and does not assume or accept any liability or responsibility for, such Services.
b. THIRD PARTY MATERIALS. In addition, the App may display, include or make available content, data, information, applications or materials from third parties or provide links to certain third party web sites, including from Your Provider (“Third Party Materials”). By using the App, You acknowledge and agree that the Third Party Materials are not under the control of Epic, and Epic is not responsible for such Third Party Materials. If You access Third Party Materials from the App, then You do so at Your own risk. Epic does not warrant or endorse, and does not assume or accept any liability or responsibility to You or any other person for, any Third Party Materials.
c. INTERNET CONNECTION. Your use of the App may require an internet connection. You may incur data charges related to information transmitted (whether sent or received) by Your device while using the App. You are solely responsible for any such data charges. Use of an internet connection may require You to agree to additional terms of service from Your internet provider.
6. WARRANTIES AND DISCLAIMER
a. WARRANTIES BY YOU. You hereby represent, warrant, and covenant for the benefit of Epic that You have the legal right and authority to enter into this Agreement. You further represent, warrant, and covenant, that: (i) 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; (ii) You are not listed on any U.S. Government list of prohibited or restricted parties; and (iii) You will not use the App or Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear missiles or chemical or biological weapons. You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into 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 Persons List or Entity List.
b. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE APP (INCLUDING ALL APP CONTENT), SERVICES AND THIRD PARTY MATERIALS ARE PROVIDED TO YOU STRICTLY “AS-IS” AND “AS-AVAILABLE” AND EPIC, ITS THIRD PARTY LICENSORS, AND ITS DISTRIBUTORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE APP, THE SERVICES AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY THAT USE OF THE APP, SERVICES OR THIRD PARTY MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE, MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EPIC, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS, WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF EPIC. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU.
7. LIMITATION OF LIABILITY
a. LIMITATION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EPIC OR ITS LICENSORS OR DISTRIBUTORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THIS AGREEMENT, THE APP (INCLUDING ANY APP CONTENT), ANY SERVICES, OR ANY THIRD PARTY MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (STRICT LIABILITY, NEGLIGENCE, CONTRACT, TORT OR OTHERWISE) AND EVEN IF EPIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EPIC’S LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
b. AGGREGATE LIABILITY. In no event shall Epic’s, OR Epic’s licensors’ or distributors’ aggregate liability to You for damages exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. You Agree that the free access to the App and the services reflects the allocation of risk set forth in this Agreement and you acknowledge that Epic would not enter into this agreement without these limitations on its liability and the liability of its licensORs and distributors.
8. GOVERNMENT USERS
The App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1 through 227.7202–4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
9. INDEMNIFICATION
You agree to defend, indemnify, and hold harmless Epic, its respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, fees, expenses, costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) damages or liabilities, regardless of the cause, arising out of or relating to (1) any actual or alleged violation of any laws, rules, regulations, or ordinances by You; (2) any actual or alleged breach of this Agreement; (3) any infringement, misappropriation, or other violation of any intellectual property rights by You; or (4) Your use, operation, installation, configuration, uninstallation, and/or reliance upon the results generated, or information transmitted, by the App OR THE SERVICES. Epic will provide You with notice of any such claim or allegation and any Indemnified Party will have the right to participate in the defense of any such claim at its expense. To the extent applicable, You will obtain Epic’s prior written consent to any settlement or judgment in which You agree to any finding of fault of Epic or defect in the App OR THE SERVICES.
10. INFRINGEMENT
Just as Epic requires users of the App to respect the copyrights and other intellectual property rights of Epic, its affiliates, and other third parties, Epic respects the copyrights and other intellectual property rights of users of the App and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the App without authorization, Epic’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail: Attn: General Counsel
Epic Systems Corporation
1979 Milky Way, Verona, WI 53593
By email: LegalNotices@epic.com
Please provide the following information: (1) the identity of the infringed work and of the allegedly infringed work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (5) Your electronic or physical signature.
11. TERMINATION
a. This Agreement is effective until terminated by You or Epic. You may terminate this Agreement at any time and for any reason or no reason by providing written notice of such termination to Epic or by following any instructions for termination provided through the App. Epic may terminate this Agreement at any time, for any reason, or no reason, in Epic’s sole discretion. Epic may also suspend Your access to the App, with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or of applicable law or upon any other conduct inappropriate or detrimental to the App, the Services, or Your Provider.
b. Upon termination of the Agreement, all rights granted to You under this Agreement will terminate and Epic may immediately terminate Your access to the App and all Services. You must stop using the App and the Services, destroy all copies of the App, and uninstall it from all Your devices upon which it was installed. At Epic’s written request, You must certify to Epic in writing that You have complied with the provisions of this section. The provisions of Sections 1, 2, 5-10, and 12-19 shall survive any termination or expiration of this EULA.
12. SUPPORT; CONTACT INFORMATION
You acknowledge that Epic does not provide technical support to You or any end user of the App. Your support, if any, for the use of the App is provided directly by Your Provider. When possible You will direct all technical support questions and any other questions, complaints, or claims regarding the App to Your Provider. To the extent You still have questions or Your Provider is unable to provide a response, any remaining questions, complaints, or claims with respect to the App should be directed to Epic at the address below.
Epic Systems Corporation
1979 Milky Way, Verona, Wisconsin, 53593
1–608–271–9000 or at info@epic.com.
13. APPLICABLE LAW
The laws of the State of Wisconsin, excluding its conflicts of law rules, govern this Agreement, its construction, and Your use of the App and the Services.
14. NOTICES
All notices to be given by You to Epic under this Agreement will be made in writing and will be via (1) hand delivery; (2) nationally recognized overnight mail service (i.e. Federal Express or UPS); or (3) certified mail, return receipt requested, to Epic at the address set forth above in Section 12. All notices to be given by Epic to You under this Agreement may be made via any of the methods stated in the previous sentence or via posting to the App or via email to the current email address on file for You. All notices will be effective upon receipt (or when delivery is refused) or three days after being deposited in the mail as required above, whichever occurs sooner.
15. SEVERABILITY
If any provision of this Agreement is held, by a court of binding jurisdiction, to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
16. ASSIGNMENT
You may not assign or transfer this Agreement nor any rights or obligations that You have under this Agreement to anyone without Epic’s written approval. Epic may freely assign this Agreement or transfer any of its rights under this Agreement.
17. ARBITRATION AGREEMENT
a. APPLICABILITY OF ARBITRATION AGREEMENT. Any dispute, claim or controversy of any nature arising out of or relating in any way to the App, this Agreement, or this Arbitration Agreement (as defined below), including without limitation the interpretation, validity, scope, or applicability of this Agreement or the Arbitration Agreement (hereinafter, collectively, the “Dispute”), which cannot be resolved informally, shall be resolved by binding arbitration on an individual, and not a class or representative, basis under the terms set forth in this Section 17 (the “Arbitration Agreement”). This Arbitration Agreement applies to You and Epic (collectively, the “Parties”) and the Parties’ subsidiaries, affiliates, agents, employees, predecessors in interest, successors in interest, and assigns. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, AND MAY HAVE HAD A RIGHT OR OPPORTUNITY TO PARTICIPATE IN A CLASS ACTION OR OTHER PROCEEDING INVOLVING MULTIPLE CLAIMANTS, BUT THEY INSTEAD CHOOSE AND AGREE TO HAVE ALL DISPUTES AS SET FORTH HEREIN DECIDED THROUGH INDIVIDUAL ARBITRATION.
b. DISPUTES EXCLUDED FROM ARBITRATION. In the event of any actual, alleged or threatened violation of confidentiality or violation of Epic’s or Your Provider’s intellectual property or other proprietary rights, Epic may immediately resort to court proceedings in a court of competent jurisdiction as set forth above in order to seek immediate injunctive relief without posting of a bond, proof of damages or other similar requirement. The institution of any action for injunctive relief shall not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive relief to arbitration.
c. CONFIDENTIAL PROCEEDINGS. The Parties expressly agree that any and all actions taken under the Arbitration Agreement and related provisions, including but not limited to all filings, orders, judgments, and awards made in any arbitration proceeding, are confidential and may not be disclosed to any third party, except as otherwise may be required by law.
d. ARBITRATOR. The arbitration proceeding will be administered by the American Arbitration Association (“AAA”) under the AAA's Commercial Arbitration Rules (the "Rules") before a single arbitrator selected pursuant to the Rules. Epic will pay all filing, administration, and arbitrator fees associated with the arbitration. The decision of the arbitrator will be final and binding. Any final award or judgment may be filed and enforced in any court of competent jurisdiction.
e. PLACE AND GOVERNING LAW. The place of arbitration shall be in Dane County, Wisconsin, unless otherwise agreed to in writing by all parties to the arbitration. The Parties acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce, and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., as may be amended from time to time, shall govern the interpretation, enforcement and proceedings pursuant to this Arbitration Agreement. To the extent state law is applicable, the laws of the State of Wisconsin shall apply without regard to conflict of laws provisions.
f. TIME LIMITATION ON CLAIMS. The Parties agree that they must initiate arbitration within one (1) year after any Dispute arose; otherwise, the Dispute is permanently barred.
g. CLASS ACTION AND JURY TRIAL WAIVER. YOU AND EPIC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and Epic agree otherwise, the arbitrator may not consolidate one or more person’s claims with Your claims, and may not otherwise preside over any form of a representative or class proceeding. If there is a final judicial determination that applicable law precludes enforcement of this Paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, CLAIM, OR PROCEEDING ARISING HEREUNDER, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, WITH THE EXCEPTION OF EPIC’S RIGHT TO INJUNCTIVE RELIEF SET FORTH IN SECTION 17(b).
18. GENERAL
This Agreement sets forth the entire agreement between Epic and You with regard to the App. All prior or contemporaneous representations, understandings or agreements are superseded by this Agreement. Except as set forth in this Agreement, any modification or amendment of this Agreement must be in writing, and signed by both parties. Any failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You and Epic are independent parties and this Agreement does not create any agent, employer, employee or joint venture relationship between You and Epic. This Agreement does not give You or Epic the right or ability to bind or enter into any obligation on behalf of the other. The prevailing party in any Dispute under this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.