Philter License Agreement
Copyright (c) 2019 Mountain Fog, Inc. All rights reserved.
“Philter” is a trademark of Mountain Fog, Inc.
This License Agreement (“Agreement”) is entered into between Mountain Fog, Inc. (“Mountain Fog”) and you, the user of Mountain Fog’s Philter™ software and the services related to the software (collectively, the “Software,” as further defined below). As used in this Agreement “you” means (i) any person or entity purchasing a license or otherwise acquiring Mountain Fog’s permission to use the Software (a “Customer”); (ii) any person who accesses or uses the Software on behalf of a Customer or on behalf of themselves; and/or (ii) any person or entity authorized by the foregoing to use the Software (including employees, agents, contractors and other authorized users of an entity acquiring a license from Mountain Fog).
The person or entity who has purchased a license or otherwise acquired Mountain Fog’s permission to use the Software is a “Customer.” If you are an employee, agent, contractor or other authorized user of a Customer, then “Customer,” as used herein, refers to your employer, the entity that retains you as an agent or contractor and/or the entity that authorized you to use the Software. Nothing in this Agreement is intended to modify, amend or supersede any written agreement regarding the Software entered into between Mountain Fog and the Customer.
Please read all of the following terms and conditions before using the Software. By using the Software, you agree to be legally bound by this Agreement. You may use the Software only if you agree to comply with all terms of this Agreement and to be legally bound by this Agreement. If you do not agree to the terms and conditions in this Agreement, then you must notify Mountain Fog in writing and you may not install, access or use the Software for any purpose.
1. Ownership of Software. As used herein, “Software” includes (i) all source code, programming code, algorithms, formulas, processes, proprietary information, data and other original works of authorship created by or on behalf of Mountain Fog and that are incorporated in or form a part of the Philter software; (ii) all electronic and physical documentation, manuals and instructions provided to you by Mountain Fog concerning the Philter software; (iii) all contents, functions and features of the Philter software and all services provided by Mountain Fog in connection with such software; (iv) all future revisions, enhancements, modifications, derivatives, amendments, updates and upgrades to the Philter software; and (v) all intellectual property rights, whether registered or unregistered, that may exist in any jurisdiction worldwide and that arise from or are related in any way to the Philter software, whether existing as of the date of this Agreement or thereafter, including but not limited to copyrights, trademarks, inventions, trade dress, source code, programming code, technological processes, proprietary information, trade secrets, technical data, layouts, methods, algorithms, processes, formulas, arrangements, databases and designs. As between you and Mountain Fog, Mountain Fog is and will remain the owner of all right, title and interest in the Software. Except for the limited license explicitly granted in this Agreement (and further subject to the terms of any written agreement between Mountain Fog and the Customer), Mountain Fog reserves all its rights in the Software. The name Philter and all other trademarks, service marks associated with the Software are the intellectual property of Mountain Fog, and you have no right or license to use such trademarks or service marks apart from the limited license to use the Software as described herein. Except as expressly described in this Agreement, you possess no right, title or interest in the Software and you may not in the future claim to possess any right, title or interest in the Software. You may not take any action to challenge, limit or interfere with Mountain Fog’s ownership of the Software and/or of Mountain Fog’s intellectual property. You must, at Mountain Fog’s request, cooperate fully with Mountain Fog with respect to the enforcement of Mountain Fog’s rights in the Software and/or the resolution of any controversy, claim, demand or litigation concerning the Software.
2. Limited License. Mountain Fog hereby grants you a personal, limited, non-exclusive, non-transferable, revocable license to use the Software solely in accordance with this Agreement and pursuant to any written agreement between Mountain Fog and the Customer. This limited license, and your ability to access and use the Software, will automatically terminate upon the earlier of (i) the expiration or termination of any written agreement between Mountain Fog and the Customer; (ii) the expiration or termination of your account or login credentials; or (iii) termination of the Software by Mountain Fog. You may not transfer, assign, sell, rent, sublicense or otherwise convey any right, title or interest (in whole or in part) to the limited licensed granted to you herein and/or to the Software. The limited license granted to you herein does include any right or ability to copy, reproduce, disclose, publish, distribute, modify, make derivatives, reverse engineer or decompile the Software or to exercise any of Mountain Fog’s copyright interests in the Software other than as expressly permitted herein.
3. License Restrictions and Prohibited Uses. You agree to use the Software only for lawful purposes and only in accordance with this Agreement and in compliance with all applicable laws, regulations, ordinances and treaties. Unauthorized use, copying or sharing of the Software is a violation of this Agreement and of the United States Copyright Act and is strictly prohibited. You may not exercise the license granted herein after this Agreement or the license is terminated or expires. Further, you may not (i) remove any attributions, copyright notices or other markings or proprietary notices from the Software; (ii) cause, permit or authorize the modification, creation of derivative works, translation, adaptation, reverse engineering, decompiling, disassembling or hacking of the Software or the circumvention of any digital rights management, technical protections, encryption or other security features; (iii) export or re-export the Software in violation of United States law or regulation; (iv) make the Software, or any copy thereof, available for use by a third party; (v) use, possess, reproduce, distribute, transmit, publish, perform or display the Software, or otherwise exercise any copyright in or to the Software, except as expressly provided herein; (vi) attempt to gain unauthorized access to the Software or its related software, source code, algorithms, formulas, systems or networks; or (vii) attempt to, engage in or take any step toward (even if unsuccessful or uncompleted) any of the foregoing actions. You may not assert any right, title or interest in the Software other than as set forth herein and you may not claim to possess any right in or to any derivatives, extensions, revisions, amendments, translations or adaptations of the Software. You may not, during or after the term of this Agreement or after the termination of this Agreement for any reason, dispute Mountain Fog’s superior right, title and interest in the Software or claim any right, title or interest in the Software adverse to Mountain Fog. You may not apply for, obtain, register, assert or claim any trademark, copyright, design, database or other right with respect to the Software in any jurisdiction worldwide. To the extent that you claim to possess any right, title or interest in the Software, or any derivatives, extensions, revisions, amendments, translations or adaptations thereof, then you will irrevocably transfer and assign all of such claim, trademark, copyright, design, database and/or right to Mountain Fog. You agree that you will not use the Software to access, possess, upload, analyze, share, or transmit any content, data or information (including Protected Health Information) that: (i) falsely states, impersonates or otherwise misrepresents your identity, affiliation, authority; (ii) you do not have the right to access, possess, upload, analyze, share, or transmit pursuant to any law or regulation or pursuant to any contractual or fiduciary relationships; (iii) contains viruses, worms, malware, or any other harmful code, files or programs that interrupt, destroy or limit the functionality of the Software or any computer or other equipment; or (vi) is libelous, obscene, unlawful, threatening or defamatory, or which in any way constitutes or encourages conduct that would constitute a criminal offense, or otherwise violate any law, regulation or industry standard. All rights not expressly granted to you herein are reserved for Mountain Fog for exercise without restriction.
4. Open Source Components. Certain portions of the Software may incorporate open source software, code or components provided or made available by third parties. Open source software, code and components incorporated in the Software may be subject to certain licenses, terms and restrictions determined by the author or source of such software, code and components and may be different from those in this Agreement. For an identification of open source software, code and components incorporated in the Software, please see the NOTICE.txt file accompanying the Software download. Notwithstanding its ownership of the Software, Mountain Fog makes no claim of ownership to any open source software, code or components. Mountain Fog makes no representations or warranties whatsoever regarding the open source software, code or components provided or made available by third parties and is not responsible or liable for the performance of such open source software, code or components.
5. Third Party Vendors. The Software and/or certain features or functions of the Software may include, use, rely on, be accessed through, be stored on or otherwise incorporate the services, software, platforms, databases, hardware and infrastructure of third party vendors (collectively, “Third Party Vendors”), including Amazon Web Services, Google Cloud Platform and Microsoft Azure. Your data, information and content may be stored by, processed by and transmitted to or from a Third Party Vendor. Payment of the license fee associated with your use of and/or access to the Software will be collected and processed by a Third Party Vendor. Mountain Fog has no control over Third Party Vendors or the products or services provided by Third Party Vendors. Mountain Fog makes no representations, warranties, promises or guarantees whatsoever about the products and services provided by Third Party Vendors, and Mountain Fog is not liable or responsible for the actions, errors or omissions of any Third Party Vendor or for any losses or damages caused in whole or in part by the actions, errors or omissions of a Third Party Vendor. In addition to the terms and conditions of this Agreement, your access to and/or use of the Software may be subject to additional terms and conditions established by a Third Party Vendor, and your data, information and content may be collected, stored, transmitted and processed in accordance with the terms and conditions established by such Third Party Vendors. To the extent that the Software includes or incorporates the intellectual property of a Third Party Vendor, then all right, title and interest in such intellectual property remains with the applicable third party and you may be subject to certain terms, conditions and obligations established by such Third Party Vendor.
6. Your Account and Security. You may access and use the Software only using your account and login credentials (which may be provided and maintained by a Third Party Vendor, in which case Mountain Fog has no control over your account or login credentials, the security of your account and the information transmitted by or stored within your account). You are strictly liable for all activity conducted using your account and/or login credentials (including but not limited to activity of your employees, contractors, agents and representatives, for which you are strictly liable and which will be attributed to you for purposes of this Agreement). You may not allow others to access the Software by sharing your account information or login credentials, and you agree to use reasonable and appropriate means to prevent others from using or accessing the Software on an unauthorized basis. You must immediately notify Mountain Fog of any breach or suspected breach of the Software’s security or unauthorized access to the Software. You must immediately notify the appropriate Third Party Vendor of any unauthorized access to your account or of any unauthorized use of login credentials provided by or facilitated by such Third Party Vendor. You agree to take reasonable and appropriate action (including all action requested by Mountain Fog and any Third Party Vendor) to mitigate any breach or suspected breach of the Software’s security and/or any unauthorized use of or access to your account or your login credentials, and you agree to cooperate with Mountain Fog and applicable Third Party Vendors in investigating and resolving any breach, unauthorized use or fraudulent activity. Notwithstanding the foregoing, Mountain Fog has no responsibility or liability to you regarding the security of accounts provided or maintained by a Third Party Vendor and has no duty to investigate, resolve or mitigate any security breach or unauthorized use of an account provided or maintained by a Third Party Vendor.
7. Services and Support. Unless otherwise set forth in a written agreement between Mountain Fog and the Customer, Mountain Fog has no obligation or duty to provide you or the Customer with any services, maintenance or support related to the Software. Mountain Fog has no duty to update the Software or to provide any particular modifications or enhancements to the Software.
8. Protected Health Information. The Software allows you to perform certain functions (including the ability to input, store, retrieve and analyze) data, information and content that may be “Protected Health Information” as that term is defined and used in the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 and the regulations promulgated pursuant to those statutes. You agree to use Protected Health Information only as permitted by statute and/or regulation, and you may not use the Software to input, store, retrieve, disclose, share, analyze or take any other action with respect to Protected Health Information unless permitted by applicable law and/or regulation. The Software is intended to assist you in recognizing, locating, de-identifying and anonymizing certain Protected Health Information. However, the Software is not guaranteed to perform these functions without error, and you should carefully review the results and/or output generated by the Software to ensure that all Protected Health Information has been appropriately recognized, located, de-identified and anonymized. Protected Health Information provided by you in connection with the Software is not stored by or transmitted to Mountain Fog, and Mountain Fog cannot access or use such Protected Health Information. Mountain Fog is not a “Business Associate” of you and/or of the Customer pursuant to Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 and the regulations promulgated pursuant to those statutes.
9. Software Limitations and Disclaimers. You assume full risk and responsibility for your use of the Software and for your use of all results, analyses, reports and outcomes generated by the Software. The Software does not render advice, decisions, opinions or recommendations of a clinical, medical or legal nature. As between you and Mountain Fog, you are solely responsible for verifying the accuracy of all results, analyses, outcomes or reports generated by the Software and for complying with all laws, regulations and other requirements. The Software does not provide medical or legal advice, and no result, analysis or outcome generated by the Software may be construed by you as medical or legal advice. Without limiting the forgoing, you may not rely on any result, analysis, report or outcome generated by the Software as advice or an opinion regarding (i) the status of data or information as Protected Health Information or (ii) the legal or regulatory obligations (including confidentiality obligations) that may or may not apply to any data or information. The Software and the results, analyses, reports and outcomes generated by the Software are not a substitute for medical or legal advice and are not a substitute for the opinions and/or advice of qualified medical and/or legal professionals. You acknowledge and agrees that the Software is not necessarily error-free and that errors may exist in the Software and/or in the results, analyses, outcomes or reports generated by the Software. The Software is provided on an “as-is,” “as available” and “with all faults” basis and your use of and/or reliance on the Software is at your sole risk and discretion.
10. Limitation of Liability. Mountain Fog is not responsible or liable to you and/or to the Customer for any loss, injury or damage incurred by you and/or the Customer arising from or concerning the Software, in whole or in part, including from any (i) failure, defect, mistake, problem, error or omission in the Software or in the algorithms, processes, or formulas employed by the Software; (ii) failure of the Software to perform or to satisfy your needs and/or requirements; and (iii) failure of the Software to identify, locate, remove, filter or perform any other function related to Protected Health Information. Under no circumstances will Mountain Fog be responsible or liable for any special, incidental, indirect, punitive, exemplary or consequential losses or damages, lost profits, lost revenues, business interruption, lost employment, lost contracts or business relationships and/or loss of goodwill, even if such losses or damages were reasonably foreseeable or if Mountain Fog was advised of the possibility of such losses or damages. Without limiting the foregoing, Mountain Fog is not liable to you and/or to the Customer for any violation by you of the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 and/or the regulations promulgated pursuant to those statutes. Additionally, Mountain Fog will not be responsible or liable for any deletion or loss of information, files or data and/or for any unauthorized access to or use of information, files or data.
11. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MOUNTAIN FOG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. MOUNTAIN FOG FURTHER DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES AND REPRESENTATIONS REGARDING THE SOFTWARE ARISING FROM STATUTE, REGULATION, TREATY, COMMON LAW, CUSTOM, TRADE USAGE AND COURSE OF DEALING. MOUNTAIN FOG MAKES NO REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE QUALITY OR ACCURACY OF THE SOFTWARE OR THE QUALITY OR ACCURACY OF ANY RESULTS, ANALYSES, REPORTS OR OUTCOMES PROVIDED BY THE SOFTWARE. MOUNTAIN FOG DOES NOT WARRANT THAT THE SOFTWARE WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, IS ERROR-FREE, WILL BE FREE FROM INTERRUPTIONS OR DELAYS, IS COMPATIBLE WITH YOUR OPERATING ENVIRONMENT, IS FREE FROM MALWARE, VIRUSES, OR HARMFUL CODE, OR WILL ACCOMPLISH ANY PARTICULAR RESULT. MOUNTAIN FOG MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OR PRIVACY OF THE DATA, INFORMATION (INCLUDING PROTECTED HEALTH INFORMATION) OR CONTENT PROVIDED BY YOU IN CONNECTION WITH THE SOFTWARE. MOUNTAIN FOG HAS NO LIABILITY FOR ANY LOSS, DAMAGE, CORRUPTION OR UNAUTHORIZED DISCLOSURE OF ANY DATA, INFORMATION (INCLUDING PROTECTED HEALTH INFORMATION) OR CONTENT PROVIDED BY YOU, OR FOR ANY PHYSICAL DAMAGE TO ANY COMPUTER, HARDWARE, MOBILE DEVICE OR OTHER EQUIPMENT. MOUNTAIN FOG HAS NO CONTROL OVER THIRD PARTY PRODUCTS OR SERVICES THAT MAY BE GOVERNED BY TERMS ESTABLISHED BY THIRD PARTIES, AND MOUNTAIN FOG MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THESE THIRD PARTY PRODUCTS OR SERVICES OR THEIR COLLECTION, USE OR DISCLOSURE OF DATA INFORMATION (INCLUDING PROTECTED HEALTH INFORMATION) OR CONTENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT WHICH IS NOT CONTAINED IN THIS AGREEMENT, INCLUDING STATEMENTS REGARDING CAPACITY, AVAILABILITY, SUITABILITY FOR USE, ACCURACY OR PERFORMANCE OF THE SERVICES OR ANY THIRD PARTY PRODUCT OR SERVICE, WHETHER MADE BY MOUNTAIN FOG OR OTHERWISE, WILL BE DEEMED TO BE A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF MOUNTAIN FOG.
12. Indemnification. You agree, on behalf of yourself and the Customer, to indemnify, defend and hold harmless Mountain Fog and its officers, directors, affiliates and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) arising from or in connection with (i) your use of the Software; (ii) your failure to comply with this Agreement or your breach of any obligation, term or condition of this Agreement; and/or (iii) your violation of or failure to comply with any law, regulation or other legal obligation.
13. Termination and Expiration. This limited license granted to you by this Agreement will automatically expire, without notice to you, upon the expiration or termination of any written agreement between Mountain Fog and the Customer and/or upon the failure of you or the Customer, as may be applicable, to pay the license fee associated with your use of and/or access to the Software. Further, Mountain Fog may terminate the limited license granted to you by this Agreement and/or terminate your access to and use of the Software immediately, with or without notice to you, if (i) Mountain Fog determines, at its sole and exclusive discretion, that you have violated any term or condition of this Agreement; (ii) any written agreement between Mountain Fog and the Customer expires or is terminated, expires, at the sole and exclusive discretion of Mountain Fog, is breached; or (iii) Mountain Fog determines, at its sole and exclusive discretion, that your access to and/or use of the Software must be terminated to reasonably avoid, resolve, mitigate, abate or otherwise address any problem, fault or error of a technological or security nature or any violation by you or by Mountain Fog of any law, regulation, treaty or contract. You may immediately terminate the limited license granted by this Agreement by notifying Mountain Fog in writing of your termination, after which you may not use or access the Software. After the expiration or termination of this Agreement or of the limited license granted herein, Mountain Fog has no obligation to retain or provide you with access to any information, data or content stored in or by the Software. All terms, conditions and obligations of Paragraph 1 and Paragraphs 3 through 19 inclusive will survive the expiration and/or termination of this Agreement and/or of the limited license granted herein, along with all of Mountain Fog’s disclaimers, limitations of liability and other terms and definitions herein reasonably required to interpret or give effect to such provisions.
14. Modifications and Amendments. Mountain Fog may amend this Agreement at any time and for any reason. Mountain Fog will use reasonable efforts to notify you of any such amendments to this Agreement, including by presenting the amended Agreement to you when you login or access the Software. Your acceptance of any amendments to this Agreement and your continued use of the Software after being presented with any amendments to this Agreement constitutes your agreement to be legally bound by such amendments. The most recent version of this Agreement accepted by you will prevail and will remain in effect until further amended or superseded or until this Agreement expires or is terminated as set forth herein.
15. Export Restrictions. You may access and use the Software only in the United States. You agree not to import or export any portion of the Software (or any copies thereof) or any products using the Software in violation of any applicable laws or regulations of the United States or of any other jurisdiction. You agree to indemnify Mountain Fog from all liability, losses and damages in the event that your use of the Software violates any law, regulation or treaty concerning the import and/or export of the Software.
16. Force Majure. Mountain Fog is not liable for any loss, delay, damage or for any failure to perform any obligation of this Agreement due to causes beyond its reasonable control, including but not limited to industrial disputes of whatever nature, power loss, telecommunications failure, acts of god, war, natural disasters, terrorism, hacking, spoofing, viruses or Trojan horses or any other cause beyond its reasonable control.
17. Entire Agreement. This Agreement contains the entire agreement between you and Mountain Fog with respect to the Software and supersedes all prior agreements and understandings of the parties (except for any written agreement between Mountain Fog and the Customer). Neither party has made any representations or promises in connection with this Agreement or the subject matter hereof not contained herein. The parties may enter into additional agreements regarding other aspects of their relationship, but no such agreement will serve to modify, amend or supersede this Agreement unless that intention is expressly stated. A copy of this Agreement, along with evidence that you have accepted and/or agreed to this Agreement, will be enforceable and admissible as evidence to the same extent as an executed original. This Agreement may be accepted electronically. You hereby agree to the use of electronic signatures, contracts and other electronic records and evidence related to the delivery and acceptance of this Agreement. Further, you hereby waive any rights or requirements or any statutes, regulations, rules, ordinances or other laws in any jurisdiction that requires an original signature or delivery or retention of non-electronic records.
18. Interpretation. Neither party will be deemed to be the drafter of this Agreement. The headings herein do not define, limit, expand or describe the scope or intent of any term of this Agreement. This Agreement will not be construed to confer upon any person or entity other than the parties hereto any rights, remedies or other benefits under or by reason of this Agreement. As used herein, the terms “you” and “your” and similar words means the end user of the Software who has accepted this Agreement and/or who has accessed and/or used the Software. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and if no feasible interpretation will save such provision, it will be severed from this Agreement, and the remaining provisions will remain in full force and effect. The failure of either party to enforce any provision of this Agreement will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of either party to enforce such provision thereafter. No course of dealing, nor any conduct or custom, between any of the parties hereto or hereto will be effective to amend, modify or change any of the provisions of this Agreement.
19. Governing Law, Venue and Jurisdiction. This Agreement is entered into in the State of West Virginia and will be construed pursuant to the laws of the State of West Virginia without regard to conflicts of laws principles. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software must be brought in the state and/or federal courts located in and for the State of West Virginia, and you irrevocably consent to the jurisdiction of and venue in such courts. You hereby waive all claims or defenses based on lack of personal jurisdiction, improper venue, forum non conveniens or the like with respect to any action brought in the state and federal courts located in and for the State of West Virginia.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY INSTALLING, ACCESSING AND/OR USING THE SOFTWARE, YOU FURTHER CONSENT TO BE BOUND BY THE TERMS, CONDITIONS AND OBLIGATIONS OF THIS AGREEMENT.