Terms of Use Last revised on: December 1, 2021 BY ACCESSING OR USING THE APP, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE APP. SPECIFICALLY, PLEASE TAKE NOTICE THAT ALL DISPUTES BETWEEN YOU AND US REGARDING THIS AGREEMENT ARE SUBJECT TO LITIGATION BEFORE A JUDGE ONLY, NOT A JURY TRIAL, AND ONLY SPECIFIC REMEDIES ARE AVAILABLE TO YOU. Read more in Section 22 below. 1. Application and Acceptance of this Agreement These Terms of Use, along with our Privacy Notice and any additional guidelines, terms, procedures or rules that may apply to a specific feature of the App that is owned or operated by First Databank, Inc. or its affiliates or subsidiaries (“we”, “us”, “our” or “FDB”), are a contract in electronic form between you (“you,” “your,” and “yourself”) and FDB (the “Agreement”). This Agreement sets forth the legally binding terms governing your access to and use of the App. The term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts, articles, comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made available through or in connection with the App. We make no representations or guarantees about any aspect of the App and Content. THE APP AND ALL CONTENT ARE PUBLISHED “AS IS” AND YOUR USE OR RELIANCE ON THE APP OR ANY CONTENT IS AT YOUR OWN RISK. WE HAVE NO LIABILITY TO YOU FOR THE CONSEQUENCES OF USING OR RELYING ON THE APP OR ANY CONTENT. 2. Privacy Notice In connection with your access to or use of the App, we may obtain information from or about you. We will use your information in accordance with our [Privacy Notice]. 3. Accuracy of Your Information The information you submit to us through the App, including as part of your account creation or registration, must be truthful, accurate and current. If we believe that your information is not truthful, accurate or current, we have the right to terminate, suspend or refuse you access to the App. 4. Installation You need not separately register with FDB to simply download the App. However, in order to install and use the App, you will need a valid email address associated with an organization that has executed Customer Terms (or other agreement that includes a License Agreement) with FDB (a “Customer Email Address”). You are responsible for all activities that occur using your Customer Email Address. You agree to notify FDB or your organization if there is any unauthorized use of your Customer Email Address, or if you learn of any other breach of security in relation to the App. 5. Revisions to this Agreement We may revise, prospectively, this Agreement by posting an updated version on the App. You consent and agree to receive notices of updates to this Agreement through our posting of an updated Agreement on the App. You should visit this page or section regularly to review the current version of the Agreement. Your continued use of the App following the posting of any revisions to this Agreement will be deemed as irrevocable acceptance of any revisions. 6. Intellectual and Other Proprietary Rights Any rights granted to you in this Agreement are subject to the following restrictions: • The App includes Content that is derived in whole or in part from content or materials supplied and owned by FDB, FDB’s affiliates and licensors or third parties. As between FDB and you, FDB owns all right, title and interest in and to the copyrights, trademarks, service marks, trade names, patents and all other intellectual and proprietary rights throughout the world associated with the App and Content including Uploaded Images (as defined below). • You acknowledge FDB’s valid intellectual and proprietary property rights in the App and Content. Nothing in this Agreement shall be deemed to convey to you any right, title, or interest into such intellectual and proprietary property rights or to the App or Content, or to any portion thereof, except for the limited rights expressly granted herein. You may not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the App (including any code used in any software) or Content. • You may not incorporate the App or Content into, or stream or retransmit the App or Content via any hardware or software application or make the App or any Content available via frames or in-line links. You may not knowingly or intentionally take any action that may impose an unreasonable burden or load on the App or its servers and infrastructures. Any future release, update, or other addition to functionality of the App or Content shall be subject to this Agreement. Modification or use of the App (including any Content or materials published thereon) for any purpose not permitted by this Agreement is prohibited and may be a violation of the copyrights and/or trademarks protected by law and this Agreement. If you provide FDB any feedback or suggestions for improving or regarding your use of the App (“Feedback”), you hereby assign to FDB all rights in the Feedback and agree that FDB shall have the right to use such Feedback and related information in any manner it deems appropriate. FDB will treat any Feedback you provide to FDB as non-confidential and non-proprietary. You agree that you will not submit to FDB any information or ideas that you consider to be confidential or proprietary. 7. Uploaded Images “Uploaded Images” means any and all information and content that a user submits through the App (e.g., photos or other content you submit through the App), except any Feedback. You hereby grant, and you represent and warrant that you have the right to grant, to FDB an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use the Uploaded Images, and to grant sublicenses of the foregoing, for any lawful purpose. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to the Uploaded Images. 8. Enforcement FDB reserves the right to investigate suspected violations of this Agreement. FDB may cooperate with law enforcement authorities or court order requesting or directing FDB to disclose the identity of anyone submitting Uploaded Images or otherwise making available any materials that are believed to violate this Agreement. BY ACCEPTING THIS AGREEMENT, YOU WAIVE AND HOLD HARMLESS FDB (AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS) FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY FDB (AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS) DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUNCE OF INVESTIGATIONS BY EITHER FDB OR LAW ENFORCEMENT AUTHORITIES. 9. Your Conduct and Responsible Use of the App The following rules are a condition of your access to or use of the App and Content: • Your Uploaded Images Must be Lawful and Appropriate. You may not store, upload, post, transmit or otherwise distribute or facilitate the distribution of any unlawful, harmful, threatening, abusive, harassing, libelous, defamatory, obscene, pornographic, profane, indecent, invasive of another person’s privacy or otherwise inappropriate Uploaded Images or other material or information of any kind. You recognize that storing, distributing, or transmitting unlawful Uploaded Images, material or information could expose you to criminal and/or civil liability. • You agree that if a third party claims that Uploaded Images, material, or information you have submitted to the App is unlawful, you will bear the burden of establishing that it is lawful. You understand and agree that all User Content, material, or information publicly or privately submitted on or through the App are the sole responsibility of the sender, not FDB, and that you are responsible for all User Content, material, or information you submit or otherwise transmit to or through the App. • No Violations of Security Systems. You agree not to undertake any activity that may adversely affect the operation of the App, including, but not limited to, placing malware or other code on the App; gain unauthorized access to, the App, Content, online accounts or any other computer systems, resources, or networks. If you become involved in any violation of systems security, FDB reserves the right to release your details to relevant third parties, law enforcement and/or governmental authorities in order to assist them in resolving security incidents. • We reserve the right to take, or refrain from taking, any and all steps available to us, including suspending or terminating your access to the App or seeking other legal or equitable remedies, once we become aware of any violation of this Agreement. 10. Availability of and Modification to the App and Content We do not guarantee that the App or any Content will be made available through the App. We may change, modify, edit, suspend, discontinue, or otherwise manipulate the App, Content or any part, feature, or service of the App at any time with or without notice to you. You agree that neither FDB nor its affiliates will be liable to you or to any third party for any modification, suspension, or discontinuance of the App, Content, or any part thereof. 12. Release You release FDB (and its affiliates and its and their officers, directors, employees, contractors, and agents) from all claims, demands, liabilities, costs, or expenses and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with your use of the App and any Uploaded Images. In entering into this release, you expressly waive any protections (whether statutory or otherwise) to the extent permitted by applicable law that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. “ 13. Indemnity You agree to indemnify and hold FDB (and its affiliates and its and their officers, directors, employees, contractors, and agents) harmless, including costs and reasonable attorneys' fees, from any claim or demand made by any third party due to or arising out of (a) your use of the App or Content, (b) the Uploaded Images, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. FDB reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of FDB. FDB will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. 14. Disclaimers THE APP AND CONTENT ARE PROVIDED “AS-IS“ AND “AS AVAILABLE“ AND WE (AND OUR AFFILIATES AND SERVICE PROVIDERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR AFFILIATES AND SERVICE PROVIDERS) MAKE NO WARRANTY THAT THE APP OR CONTENT: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. DUE TO THE INHERENT NATURE OF THE INTERNET, WE CANNOT GUARANTEE THAT INFORMATION, DURING TRANSMISSION THROUGH THE INTERNET OR WHILE STORED ON OUR SYSTEMS OR OTHERWISE IN OUR CARE, WILL BE ABSOLUTELY SAFE FROM INTRUSION BY OTHERS. FDB ASSUMES NO LIABILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, HARDWARE OR NETWORK FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER CONTENT. YOU UNDERSTAND THAT IF YOU DOWNLOAD ANY MATERIAL, YOU DO SO AT YOUR SOLE RISK. FDB DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE APP OR ANY ONLINE SERVICES LINKED TO THE APP IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL FDB BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE APP, ANY CONTENT POSTED ON OR THROUGH THE APP, OR CONDUCT OF ANY USERS OF THE APP, WHETHER ONLINE OR OFFLINE. YOU USE THE APP AT YOUR OWN RISK. SOME AREAS OF OUR APP OFFER CONTENT FROM PROVIDERS WHO MAY BE AFFILIATED WITH FDB [OR MEMBERS OF THE USER COMMUNITY]; SUCH CONTENT IS FOR REFERENCE ONLY. FDB CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE APP. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. 15. Limitation of Liability IN NO EVENT SHALL WE (AND OUR AFFILIATES AND OUR AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS ) OR OUR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER CONTRACT, IN TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY LOSS OR DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR OTHERWISE) LOST PROFIT, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE APP INCLUDING FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY US DOLLARS ($50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR AFFILIATES AND SERVICE PROVIDERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO IN THOSE JURISDICTIONS OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. 18. Local Regulations • FDB makes no representation that the App or Content are appropriate or available for use outside the United States, its territories, possessions, and protectorates. If you choose to access the App or Content from other locations, you do so on your own initiative and at your own risk. • You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from and/or to the United States or the country you reside in. 19. Termination FDB may, in its sole discretion, terminate your Credentials, if applicable, your account (or any part thereof) or use of the App, or remove and discard any User Content or information stored, sent, or received via the App or any Content offered to you via the app without prior notice and for any reason or no reason, including, but not limited to: (i) permitting another person or entity to use your identification to access the App, (ii) any unauthorized access or use of the App, (iii) any violation of this Agreement, or (iv) tampering with or alteration of any of the software, data files, and/or Content contained in or accessed through, the App. You may terminate your account for any reason or no reason. Termination, suspension, or cancellation of this Agreement or your access rights to the App shall not affect any right or relief to which FDB may be entitled, at law or in equity. Upon such termination, suspension, or cancellation, all rights granted to you will automatically terminate and immediately revert to FDB and its affiliates and licensors and all rights granted by you to FDB shall survive in perpetuity. Notwithstanding any termination, suspension, or cancellation of this Agreement or your access rights to the App, the following provisions of this Agreement will survive: Sections 2 – 27. 20. Entire Agreement This Agreement (including the Privacy Notice) constitutes the entire agreement between you and us regarding the use of the App. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 21. Updates to App Provision of Updates: FDB may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that FDB has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your mobile device settings, when your device is connected to the internet either: (i) the App will automatically download and install Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. Installation of Updates: You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement. 22. Dispute Resolution (Jury Waiver and Forum Selection) PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND HEARST ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY. Any disputes relating to the App, Uploaded Images, or this Agreement shall be exclusively brought in the state or federal courts located in New York County, New York. 23. No Waiver No failure or delay by FDB in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement. 24. Governing Law This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of New York, USA without giving effect to any law that would result in the application of the law of another jurisdiction. 27. Apple App Store Additional Terms and Conditions The following additional terms and conditions apply to you if you are using the App from the Apple App Store (an “Apple App”). To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 27, the more restrictive or conflicting terms and conditions in this Section 27 apply, but solely with respect to Apple Apps from the Apple App Store. Acknowledgement: FDB and you acknowledge that this Agreement is concluded between FDB and you only, and not with Apple, and FDB, not Apple, is solely responsible for the App and the content thereof. To the extent this Agreement provides for usage rules for the App that are less restrictive than the usage rules set forth for the App in, or otherwise are in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies. Scope of License: The license granted to you for the Apple App is limited to a non-transferable license to use the Apple App on an iOS Product that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service. Maintenance and Support: FDB is solely responsible for providing any maintenance and support services with respect to the Apple App, as specified in this Agreement (if any), or as required under applicable law. FDB and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App. Warranty: FDB is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Apple App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be FDB's sole responsibility. Product Claims: FDB and you acknowledge that FDB, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple App or your possession and/or use of the Apple App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit FDB's liability to you beyond what is permitted by applicable law. Intellectual Property Rights: FDB and you acknowledge that, in the event of any third-party claim that the Apple App or your possession and use of the Apple App infringes that third party's intellectual property rights, FDB, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Legal Compliance: You represent and warrant 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Developer Name and Address: FDB's contact information for any end-user questions, complaints or claims with respect to the Apple App is: FDB at 701 Gateway Boulevard, Suite 600, South San Francisco, CA 94080, or email cs@fdbhealth.com Third Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Apple App. Third-Party Beneficiary: FDB and you acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions 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 thereof. 28. Copyright/Trademark Information Copyright © 2021, First Databank, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the App are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. 30. Contact Us. If you have any questions about this Agreement, you may contact us by email at cs@fdbhealth.com.
In consideration for the foregoing and the use of the App, please confirm your acceptance below.