End User License Agreement

End User License Agreement

These Terms of Service are a legal agreement (the “Agreement”) between you (either an individual or a legal entity) and Empathic Software Systems, LLC (“Empathic”) that governs your use of the Blink at Me EMDR online computer software (the “Software”).

SOFTWARE ACCESS. blinkEMDR is a product of Empathic Clinical Software. Subject to the terms and conditions of this Agreement, Empathic permits you to access and use the Software 'blinkEMDR' via the Internet at blinkEMDR.com. Empathic assumes no responsibility for your ability to access the Internet. Empathic will seek to have the Software available 95% of the time, excluding: (a) scheduled maintenance; (b) emergency maintenance that must by its nature only be conducted outside the scheduled maintenance window; (c) downtime caused by any unauthorized use of the Software by Customer; and (d) circumstances beyond Empathic’s .

FEES. You agree to pay a recurring seventeen dollar ($17) per month subscription fee when you access the Software at blinkEMDR.com. Fees will be debited monthly against the credit card account that you provide. If payment is denied, Empathic will notify you and seek an alternative credit card. If you fail to pay fees due within 48 hours of notification of non-payment, you will lose the ability to use the Software and this Agreement may be terminated by Empathic. Service can be reinstated for a seventeen dollar ($17) reinstatement fee in addition to past due fees.

PROPRIETARY RIGHTS. All intellectual property rights in the Software are and shall remain the exclusive property of Empathic and/or its licensors. The Software in both object code and source code form includes valuable trade secret information and is protected by copyright laws and international copyright treaties. Nothing in this Agreement intends to transfer any intellectual property rights to you. You are only entitled to the limited use of the intellectual property rights granted to you in this Agreement. You will not take any action to jeopardize, limit or interfere with Empathic’s intellectual property rights.

RESTRICTIONS ON USE. Access is only for your own clinical practice. You may not provide third parties with access to the Software or make any copies of the Software. You may not reverse engineer, decompile, or disassemble the Software or otherwise attempt to gain access to the source code for the Software. You may not rent, lease, sell, sublicense, lend or otherwise transfer or assign your rights or obligations under this Agreement to any person or entity. Empathic reserves all rights not expressly granted under this Agreement.

LIABILITY. I agree that Empathic will not be liable in any way for delays, failure in performance, loss or damage due to any of the following conditions beyond Empathic’s control: computer “virus” infections, computer system downtime, fire, strike, embargo, explosion, power blackout, earthquake, volcanic action, flood, war, water, the elements, labor dispute, civil disturbance, governmental requirement, civil or military authority, acts of God, public enemy, inability to secure fuel, inability to secure products, inability to secure transportation, or other causes beyond Empathic’s reasonable control, whether or not similar to the foregoing.. Empathic will not be liable in any way for delays, failure in performance, loss or damage due to acts or omissions of providers, payers, or other third parties.

TERMINATION. You may terminate this Agreement and your subscription to the Software for any reason by requesting termination through your account manager, via email. You may also request termination by submitting an email to help@empathic.com. Upon such notice, your termination will become effective at the next payment date. Once terminated, you will no longer be able to use the Software. If you violate the terms of this Agreement, Empathic may terminate this Agreement and your rights to access and use the Software immediately.

CONFIDENTIALITY. To the extent that data you enter as well as client/patient video and audio transmitted as you use the software, is protected health information, that information is governed by the HIPPA Business Associate Agreement between Empathic and you. Any other personal, business, technical or financial information that either you or Empathic share with the other shall be considered confidential information (“Confidential Information”). Each party will: (a) only use the other party’s Confidential Information as expressly permitted in this Agreement; (b) protect the other’s Confidential Information from unauthorized use or disclosure using at least reasonable care; and (c) not disclose to any third party the other party’s Confidential Information except to those employees (and in Empathic’s case, subcontractors and agents) who have a need to know and who are subject to obligations of confidentiality similar to this section. This Agreement will not prevent either party from disclosing the other party’s Confidential Information to the extent required by a judicial order or other legal obligation, provided that the receiving party shall promptly notify the other party in writing and in advance of such disclosure to provide the other party the opportunity to contest or minimize the scope of disclosure. The obligations and restrictions contained in this section shall not apply to information: (a) which is now or subsequently becomes publicly available other than by breach of this Agreement; (b) which was already in the recipient’s possession and at its free disposal at the time of disclosure and was not obtained directly or indirectly from discloser; (c) which is independently developed by the recipient without use of the other party’s Confidential Information; or (d) which is de-identified in compliance with HIPAA.

NO WARRANTY. EMPATHIC DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE SOFTWARE PRODUCT. EMPATHIC DOES NOT WARRANT THAT THE SOFTWARE PRODUCT IS ERROR-FREE, OR THAT ACCESS TO THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED, OR THAT SUPPORT AND MAINTENANCE WILL CONTINUE PERPETUALLY. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE PRODUCT IS "AS IS."

LIMITATION OF LIABILITY. EMPATHIC IS NOT LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, EMPATHIC’S ENTIRE LIABILITY IS LIMITED TO THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SOFTWARE.

GENERAL. This Agreement is governed by the laws of the State of Minnesota without regard to conflicts of law principles. All claims or actions related to this Agreement must be brought in the state or federal courts located in Hennepin County, Minnesota. If any court or competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the other provisions of this Agreement remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree remains in full force and effect to the extent not held invalid or unenforceable. This Agreement contains the entire agreement and understanding of the parties concerning the subject matter of this Agreement. The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.