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Terms & Conditions
SOFTWARE SERVICES AGREEMENT
PLEASE READ THE TERMS OF THE ARK CARE® SOFTWARE SERVICES AGREEMENT (“AGREEMENT”) FOR THE ARK CARE® SOFTWARE APPLICATION (THE “ARK CARE® APPLICATION”) WITH ARKRAY USA, INC. ("ARKRAY"). AS USED HEREUNDER, “YOU” OR “YOUR” REFERS TO THE PERSON OR ENTITY AUTHORIZED TO ACCESS AND USE THE ARK CARE® SOFTWARE SERVICES AND ARK CARE APPLICATION DESCRIBED HEREUNDER. ARKRAY AND YOU ARE REFERRED TO COLLECTIVELY AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, YOU WILL NOT BE PROVIDED ACCESS TO THE ARK CARE® APPLICATION.
- ARK Care Software Application. ARKRAY hereby grants You a limited, non-exclusive, non-transferable, revocable license to download the ARK Care® Application to enable You to access and use the ARK Care® Software Services. ARKRAY may provide documentation from time to time to You for use in connection with the ARK Care® Software Services and ARK Care® Application (the “Documentation”).
- ARK Care® Software Services. ARKRAY agrees to provide You access to its ARK Care cloud based software platform without charge to enable You to collaborate with Your care providers or patients to monitor glucose levels over the Internet (collectively the “ARK Care® Software Services”). ARKRAY reserves the right to add, delete, modify, and update the ARK Care® Software Services from time to time. ARKRAY reserves the right, in its sole discretion and without notice, at any time to remove or disable access to all or any portion of the ARK Care® Software Services and ARK Care® Application and terminate Your access to the ARK Care® Software Services and ARK Care® Application for a violation of this SAAS. You acknowledge and agree not to allow others to use your username and password to access the ARK Care® Software Services and ARK Care® Application. ARKRAY may, from time to time, release new versions, updates, and upgrades for Your use of the ARK Care® Software Services and ARK Care® Application.
- Restrictions on ARK Care® Software Services and ARK Care® Application. Except as otherwise authorized in this Agreement, You agree not to allow third-parties to: (a) access, copy, distribute, reproduce, rent, lend, loan, or sublicense any portion of the ARK Care Application, ARK Care® Software Services or Documentation; (b) translate, adapt, modify, alter the ARK Care Application, ARK Care® Software Services or Documentation, or prepare derivative works based in whole or in part on the ARK Care® Application, ARK Care® Software Services or Documentation; (c) permit persons other than CUSTOMER and its patients to access or use the ARK Care Application, ARK Care® Software Services or Documentation (or any part thereof); or (d) use the ARK Care Application or ARK Care® Software Services, or Documentation (or any part thereof) in violation of any applicable laws.
- Ownership of ARK Care® Software Services and ARK Care® Application. You acknowledge that the ARK Care® Software Services and ARK Care® Application contains proprietary and copyright protected material and, in its human-perceivable form, contains trade secrets and other intellectual property rights exclusively owned by ARKRAY. This Agreement does not grant You any rights to any patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the ARK Care® Application. Your obligations under this Section 4 shall survive the termination of this Agreement for any reason. ARKRAY shall retain all rights, title, and interest in and to ARK Care® Application and the ARK Care® Software Services and associated Documentation, including all derivative works, patents, copyrights, trade secrets, and other intellectual property rights related thereto.
- Protection of ARK Care® Software Services and ARK Care® Application. You agree, at all times to maintain the confidentiality of the ARK Care® Application and the ARK Care® Software Services and Documentation. You shall not sell, license, publish, display, distribute, disclose or otherwise make available the ARK Care® Application and the ARK Care® Software Services and associated Documentation to any third party other than to those who need to know such protected information and have agreed, in writing, to be bound by this Agreement.
- Disclaimer of Warranty. ARKRAY PROVIDES THE ARK CARE® SOFTWARE SERVICES, ARK CARE® APPLICATION, AND DOCUMENTATION “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE ARK CARE® APPLICATION, THE ARK CARE® SOFTWARE SERVICES AND DOCUMENTATION (IN WHOLE OR IN PART). ARKRAY DOES NOT WARRANT THAT THE ARK CARE® SOFTWARE SERVICES AND ARK CARE® APPLICATION WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, EXCEPT AS PROVIDED BELOW, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AGENTS, MANAGERS, GOVERNORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST TIME, LOST SAVINGS, LOST DATA, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION, FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE, MISUSE OR INABILITY TO ACCESS AND USE THE ARK CARE® APPLICATION, THE ARK CARE® SOFTWARE SERVICES AND DOCUMENTATION INCLUDING ANY CHANGES TO OR INACCESSIBILITY OF THE ARK CARE® SOFTWARE SERVICES AND ARK CARE® APPLICATION.
- Notice. All notices, demands and requests required or permitted to be given under this Agreement must be in writing and must be delivered personally, by facsimile transmission or telecopy (in which event, the notice shall be confirmed by overnight delivery), by nationally recognized overnight courier or sent by United States certified mail, return receipt requested, postage prepaid and addressed to the parties at their respective addresses set forth below and the same shall be effective upon receipt if delivered personally, or on the next business day if sent by overnight courier or by facsimile transmission or telecopy, or three (3) business days after deposit in the mail if mailed.
- Complete Agreement. This Agreement contains the entire agreement of the Parties and supersedes all prior negotiations, agreements or understandings, whether oral or in writing. This Agreement may not be changed orally but only by an agreement in writing signed by each of the Parties.
- Choice of Law/Consent to Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Minnesota, without regard to the conflict of laws provision of such state. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Minnesota, in each case located in the City of Minneapolis in the County of Hennepin, and each Party irrevocably submits to the exclusive jurisdiction of such in any suit, action, or proceedings.
- Amendment. This Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.
- Severability. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
- Non-Waiver. The failure in any one or more instances of a Party to insist upon performance of any of the terms, covenants, or conditions of this Agreement, to exercise any right or privilege in this Agreement conferred, or the waiver by said Party of any breach of any of the terms, covenants, or conditions of this Agreement, shall not be construed as a subsequent waiver of any such terms, covenants, conditions, rights, or privileges, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving Party.
- Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, representatives, successors, and assigns.
- Attorneys’ Fees. If any Party brings an action or proceeding for injunctive relief, or for an alleged breach or default of, or any other action arising out of this Agreement or the transactions contemplated hereby, the prevailing Party in any such action shall be entitled to an award of reasonable attorneys’ fees and any court costs incurred in such action or proceeding, in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment.
- Survival. The obligations in Sections 1, 2, 3, 4, 5, 6, and 7 shall survive expiration or termination of this Agreement for any reason.