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Terms of Use

PLEASE READ THE FOLLOWING TERMS CAREFULLY BECAUSE, BY DOWNLOADING OR ACCESSING ICON’s SOFTWARE APPLICATION, YOU ACCEPT AND AGREE TO THEM. PLEASE ALSO READ OUR PRIVACY POLICY TO LEARN HOW WE COLLECT AND USE INFORMATION.

Effective: November 4, 2020

Welcome to Icon!

These Icon Anesthesia of New England Terms of Use (these “Terms”) explain the relationship between Icon Anesthesia of New England LLC (“Icon”, “we” or “us”) and you when you download, install,use and in some cases purchase Icon’s proprietary software applications, including Icon Exchange and use Icon’s web portal (including all related documentation, updates and upgrades) (collectively, the “Icon Products”).

For the purposes of these Terms, “you” or “your” refers to you as the user of the Icon Products.

THESE TERMS, TOGETHER WITH OUR PRIVACY POLICY, FORM AN AGREEMENT BETWEEN YOU AND ICON. BY USING THE ICON PRODUCTS, YOU REPRESENT TO US THAT YOU ARE LEGALLY COMPETENT TO ENTER INTO THIS AGREEMENT. IF YOU ARE USING THE ICON PRODUCTS ON BEHALF OF YOUR EMPLOYER, YOUR ACCEPTANCE OF THESE TERMS IS DEEMED AN AGREEMENT BETWEEN YOUR EMPLOYER AND ICON AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND YOUR EMPLOYER TO THESE TERMS.

1. License Grant. The Icon Products are owned by Icon and are licensed, not sold, to you. Icon grants to you a personal, nonexclusive, nontransferable, limited license (without the right to sublicense) to access, download, install and use the Icon Products subject to the limitations set forth in these Terms, any relevant purchase order or ordering document related to the Icon Products (“Order Form”) and any and all other terms and policies set forth in the Icon Products. You acknowledge that the source code for the Icon Products and other trade secrets embodied in the Icon Products have not been and will not be licensed or otherwise disclosed to you. All rights not expressly granted herein are reserved by Icon.

2. Use of Icon Products.

  1. Registration: You are required to register and create an account to use the Icon Products (“Account”). You agree that you will maintain and update your registration and account information to ensure it is current, complete and accurate and that we have the right to terminate your Account and use of the Icon Products if you provide untrue, incomplete or inaccurate information.

  2. Your Responsibilities: You are responsible for providing the equipment and services that you need to access, download, install and use the Icon Products. Icon does not guarantee that the Icon Products are accessible on any particular equipment or device or with any particular software or service plan.

    You are responsible for all activities that occur through your Account, whether or not authorized by you. Please do not share your Account or any of its information with any other person that you have not verified or trust.

    You will use the Icon Products only for your internal business purposes and in accordance with applicable laws, rules and regulations. You are responsible for all of your activities that occur within, through or as a result of your use of the Icon Products. You agree that you will not use the Icon Products for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third party privacy or other rights. You agree that you will not use the Icon Products if you are under the age of majority in your place of residence or otherwise not fully able and competent to agree to these Terms.

    If you use the Icon Products on your mobile device, you are solely responsible for all message and data fees charged by your wireless service provider. Please contact your mobile service provider for pricing plans and details. Icon is not liable for any delays, interruptions or other transmission errors related to your device, service or wireless service provider.

    Except as specifically permitted in these Terms or expressly authorized in writing by Icon, you agree that you will not directly or indirectly: (a) distribute, sell, assign, encumber, transfer, rent, lease, sublicense, modify or time-share the Icon Products; (b) use any of the Icon Products in any service bureau arrangement or on behalf of any third party; (c) reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify any of the Icon Products; or (d) permit any third party to engage in any of the acts described in clauses (a) through (c).

    You are not permitted to: (w) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in any of the Icon Products; (x) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any of the Icon Products; (y) use any means to discover the source code of the Icon Products or to discover the trade secrets in the Icon Products; or (z) otherwise circumvent any functionality that controls access to or otherwise protects the Icon Products.

    You are responsible for complying with all laws, rules and regulations that apply to your use of the Icon Products.

    You understand that in order to properly use the Icon Products you will need to accept “push notifications” from the Icon Products (which may be done in the “settings” of your authorized device).

  3. Our Responsibilities: Icon is responsible for providing the Icon Products in accordance with these Terms.

    We will maintain commercially reasonable administrative, physical and technical safeguards intended to protect the security, confidentiality and integrity of information that you provide to or through the Icon Products (including Your Content as defined in Section 3 below).

    Icon reserves the right but is not obligated to improve, enhance or modify the Icon Products. We will notify you in advance of changes to the Icon Products that may significantly adversely affect the manner in which you use the Icon Products or the manner in which the Icon Products perform.

    Icon is not responsible for the content of Other Services or for losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees (“Claims”) arising from your use of content, information, web sites, software, services and other materials of third parties with which you may interact when you use the Icon Products (collectively, “Other Services”). Other Services include third party services, such as Medical Malpractice Insurance, Legal services, etc. that may be offered via the Icon Products. YOU ACCESS OTHER SERVICES ENTIRELY AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR COMPLYING WITH TERMS AND CONDITIONS APPLICABLE TO YOUR ACCESS AND USE OF OTHER SERVICES.

  4. Availability: We use commercially reasonable efforts to make the Icon Products available to you 24 hours per day, seven (7) days per week, excluding scheduled maintenance time, unavailability caused by you or any software, hardware or service not provided by us, emergency maintenance and/or any cause beyond our reasonable control (including without limitation nature disasters, wars, terrorist act, civil disturbances, acts of any government or agency thereof, strikes or other labor problems, Internet service or other third party service providers’ failures or delays and systemic electrical, telecommunications or other utility outages or failures).

    Limitations: We may set limits on your use of the Icon Products from time to time, such as limits on the size and amount of Your Content that you may upload and store in the Icon Products.

3. Your Content. The Icon Products allow you to upload and transmit certain information and other content to and through the Icon Products, including, without limitation, information on your licensing, credentials, vaccinations, etc. (collectively, “Your Content”). You are solely responsible for the accuracy, quality, legality and means by which you acquired Your Content. You understand that Icon will use Your Content to provide the Icon Products to you and will make Your Content available to third parties at your request through your use of the Icon Products. You have or will obtain all rights necessary to provide Your Content to Icon and you hereby grant Icon a worldwide license to use, reproduce, transmit, display and adapt your Content as necessary for Icon to provide the Icon Products to you in accordance with these Terms.

Without limiting the terms of our Privacy Policy, you understand that we do not guarantee that your use of the Icon Products and/or Your Content will be private or secure and we are not responsible or liable to you for any lack of privacy or security that you may experience. Information collected by your internet or mobile service provider and other third parties is used, stored, transferred and disclosed pursuant to your internet or mobile service provider’s or the third party’s terms, policies and practices.

We encourage you to carefully consider disclosure of any information that might be accessible to others. You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the Icon Products.

4. Fees. Icon does not currently charge for use of the Icon Products. Icon reserves the right to implement charges for use of the Icon Products in the future upon thirty (30) days advanced notice to you. If you do not agree to pay such fees you will need to cease use of the Icon Products.

5. Warranties. We warrant that we have validly entered into these Terms and have the legal power to do so. You warrant that (i) you have validly entered into these Terms and have the legal power to do so and (ii) you have all necessary rights, licenses, consents and permissions to use Your Content with the Icon Products.

THE ICON PRODUCTS ARE LICENSED “AS-IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” YOU BEAR ALL RISK OF USING THEM. ICON, ON BEHALF OF ITSELF, GOOGLE, APPLE, WIRELESS CARRIERS OVER WHOSE NETWORK THE ICON PRODUCTS ARE DISTRIBUTED, AND ITS AND THEIR RESPECTIVE AFFILIATES, VENDORS, AGENTS, AND SUPPLIERS (“DISTRIBUTORS”), GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO THE ICON PRODUCTS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, ICON AND ALL DISTRIBUTORS EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ICON DOES NOT WARRANT THAT (A) THE ICON PRODUCTS WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE ICON PRODUCTS WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE ICON PRODUCTS WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATIONS OR ANY PARTICULAR SYSTEMS OR DEVICES, (D) DEFECTS IN THE ICON PRODUCTS WILL BE CORRECTED OR (E) THAT THE ICON PRODUCTS WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES. ANY ORAL OR WRITTEN ADVICE PROVIDED BY ICON OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

6. Limitation of Liability. ICON’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE DELIVERY, USE OR PERFORMANCE OF THE ICON PRODUCTS OR THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) WILL NOT EXCEED THE GREATER OF $25.00 (USD) OR THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT; PROVIDED THAT IN NO EVENT SHALL ICON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF $25.00 (USD) OR THE TOTAL AMOUNT PAID BY YOU HEREUNDER.

IN NO EVENT WILL ICON BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE ICON PRODUCTS OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF ICON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING DISCLAIMER OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM ANY DISTRIBUTOR.

You agree that the above limitations of liability, together with the other provisions in these Terms that limit liability, are essential terms of these Terms and that Icon would not be willing to grant you the rights set forth in these Terms but for your agreement to these limitations of liability.

7. Ownership. The Icon Products, including the “look and feel” (e.g., text, graphics, images, logos), content and other material, are protected under copyright, trademark and other laws. You acknowledge and agree that Icon owns all right, title and interest in and to the Icon Products (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of Icon’s copyrights, patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms. Any and all (a) suggestions for correction, change and modification to the Icon Products, evaluation data, evaluations and other feedback (including but not limited to quotations of written or oral feedback, information and reports provided to Icon by you (collectively, “Feedback”)), and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by Icon or otherwise relating to the Icon Products (collectively, “Revisions”), are and will remain the property of Icon. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Icon Products or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Icon and Icon may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Icon any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that you may have in and to any and all Feedback and Revisions. Upon request by Icon, you will execute any document, registration or filing required to give effect to the foregoing assignment. In addition, Icon shall have the right to copy, use, distribute, and display any information, analysis, statistics and other data generated by the Icon Products (or derived from your use of the Icon Products), including compilation of aggregated statistics about the Icon Products; provided, however, that Icon shall not publicly disclose or distribute any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with you.

8. Indemnification. You agree to indemnify and defend Icon and its affiliates, directors, officers, employees and agents from and against all Claims brought against Icon by any third party arising from your use of the Icon Products or any violation of these Terms, the rights of a third party or applicable law. Your indemnification obligations set forth in this Section 8 apply to any applicable actions taken under your Account. Icon reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. In any event, no settlement that affects the rights or obligations of Icon may be made without Icon’s prior written approval.

9. Modifications to Terms. We may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Icon Products after the “Last Revised” date at the top of this page. Your continued access or use of the Icon Products after the modifications become effective is deemed your conclusive acceptance of the modified Terms.

10. Termination. These Terms will automatically terminate when you fail to comply with any term or condition of these Terms. In addition either party may terminate your use of the Icon Products at any time and for any reason. Upon termination, you will cease all use of the Icon Products and will destroy any copy (full or partial) of any and all parts of the Icon Products in your possession or control. Upon termination we will be under no obligation to store Your Content or make Your Content available to you and will delete Your Content from the Icon Products in accordance with our then current policies. Termination will not limit any of Icon’s other rights or remedies at law or in equity. This Section 10 along with Sections 6, 7, 8, 13 and 17 will survive any termination or expiration of these Terms.

11. Export Laws. You agree that you will not export or re-export, directly or indirectly, the Icon Products and/or other information or materials provided by Icon hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. You are responsible for and hereby agree to comply at your sole expense, with all applicable United States export laws and regulations. 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.

12. U.S. Government Restricted Rights. The Icon Products are “commercial computer software” and “commercial computer software documentation” as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Icon Products by or on behalf of the U.S. Government is subject to restrictions as set forth in these Terms.

13. Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms or the Icon Products by any authority.

14. Remedies. You agree that a breach or a threatened breach of these Terms will cause injury to Icon for which money damages will not provide an adequate remedy and Icon will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

15. Additional Terms Applicable to Icon iOS Application.

  1. Currently there is no fee to use the Icon Products. In the future Icon may elect to charge for use of the Icon Products by notifying you thirty (30) days in advance. Please note that in the event that you have purchased an auto-renewing subscription through the Icon iOS application then the payment will be charged to your iTunes Account at the confirmation of your purchase. Importantly, your subscription will auto-renew monthly at Icon’s then current rates per account per month. The auto-renewals will occur unless auto-renew is turned off at least 24-hours before the end of the current renewal period. Your account will be charged for the renewal and identify the cost of the renewal within 24-hours prior to the end of the current period. You may manage your subscription and turn off auto-renewal by going to your Account Settings after purchase. No cancellation of your current subscription is allowed during the active subscription period.

  2. You and Icon acknowledge that this Agreement is concluded between You and Icon only, and not with Apple, and Icon, not Apple, is solely responsible for the Icon Products and the content thereof.

  3. The license granted to you to use the Icon Products is limited to use on any iOS Products that you own or control and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, except that the the Icon Products may be accessed and used by other accounts associated with the purchaser via Family Sharing. You and Icon acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Icon Products.

  4. In the event of any failure of the Icon Products to conform to any applicable warranty herein, you may notify Apple, and Apple may refund the purchase price for the Icon Products to you (if any); and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Icon Products, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.

  5. You and Icon acknowledge that Icon not Apple, is responsible for addressing any of your claims or of any third party relating to the Icon Products and/or your use of the Icon Products, including, but not limited to: (i) product liability claims; (ii) any claim that the Icon Products fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Icon Products’s use of the HealthKit and HomeKit frameworks.

  6. You and Icon acknowledge that, in the event of any third party claim that the Icon Products or your possession and use of the Icon Products infringes that third party’s intellectual property rights, Icon, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

  7. You may contact Icon at 978-774-ICON (4266) with any questions, complaints or claims with respect to the Icon Products.

  8. You and Icon 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.

16. Miscellaneous. Except as otherwise expressly set forth in these Terms, these Terms may not be modified except by a writing executed by the duly authorized representatives of Icon. No other act, document, usage or custom will be deemed to modify or amend these Terms. These Terms will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms and the licenses granted hereunder may be assigned by Icon but you may not assign them without the prior express written consent of Icon. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. If either party fails to perform any term hereof and the other party does not enforce such term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein are for convenience only. These Terms are governed by and construed and enforced in accordance with the internal laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflicts of laws of such state, and is binding upon the parties hereto in the United States and worldwide. You and Icon agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms. Any litigation by one party against the other arising under these Terms or concerning any rights under these Terms will be commenced and maintained in any state or federal court located in the Commonwealth of Massachusetts and both parties hereby submit to the jurisdiction and venue of any such court. For disputes involving an amount less than $10,000, the parties agree to resolve the dispute through binding arbitration to be held in Boston, Massachusetts under the rules of the American Arbitration Association. Any claim arising out of these Terms, the Icon Products must be brought within one (1) year of the date on which the claim arose. These Terms, together with our Privacy Policy, contain the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.

Please direct questions regarding these Terms to our support team by submitting a request to Office Manager with the subject of “Terms of Use”.

Icon Anesthesia of New England, LLC
135 Lake Street
Middleton, MA 10949
www.iconanesthesia.com
978-774-4266 (ICON)

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