API Terms of Use

I. PURPOSE

These Terms and Conditions of Use (the “Terms of Use”) shall apply to the VitalWare web site and services located at developer.vitalware.com, and all associated sites linked to developer.vitalware.com by VitalWare, its subsidiaries and any 3rd party licensors,  (collectively, the “Services”). The Services are the property of VitalWare, LLC. (“VitalWare”) and its licensors. BY USING THE SERVICES, YOU AND YOUR ORGANIZATION (collectively “Vendor”) AGREE TO THESE TERMS OF USE; IF VENDOR DOES NOT AGREE THEN DO NOT USE THESE SERVICES.

VitalWare reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is Vendor’s responsibility to check these Terms of Use periodically for any updates or changes. Vendor’s continued use of the Services following the posting of updates or changes will mean that Vendor accepts and agrees to the changes. As long as Vendor complies with these Terms of Use, VitalWare grants Vendor a limited, non-exclusive, non-transferable, license to enter and use the Services.

II.    ROLES AND RESPONSIBILITES

a)      VitalWare will provide documentation, training, support and access to its API’s and HTML Controls available through developer.vitalware.com 

b)      VitalWare will then provide access to developer.vitalware.com for sixty (60) business days for testing purposes (“Evaluation Period”). 

c)      VitalWare will provide technical support during the Evaluation Period including a weekly meeting(s) for progress updates and technical questions. 

d)      Vendor will coordinate with VitalWare for the use of support resources during the Evaluation Period. 

e)      Both parties shall appoint a point person and define their respective tasks to complete. 

f)       Vendor will not give access to any third party or unauthorized users without the permission of VitalWare.

III.    GENERAL TERMS AND CONDITIONS

1.   GRANT OF LICENSE.

1.1 License. Subject to the terms of this Terms of Use Agreement, VitalWare grants to Vendor a limited, non-exclusive, non-transferable internal use only license to test the Services and Documentation during the Evaluation Period, solely to evaluate the features, functionality and performance of the Services. At the end of the Evaluation Period, the Services shall cease to function. The Services may not be used for any other purpose, including but not limited to productive or commercial use by Vendor.

1.2 License Conditions. Except as otherwise expressly permitted in this Terms of Use Agreement, Vendor shall not itself, or through any parent, subsidiary, Affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Services to any third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Services; (c) allow access or permit use of the Services by any third party except authorized third-party contractors solely to provide its services to Vendor, provided that Vendor shall be liable for any and all acts and omissions of such authorized third-party contractors; (d) circumvent the security embedded within the Services; (e) modify or create derivative works based upon reviewing or knowledge gained by using the Services; (f) disclose the results of  the Services to any third party; or (g) change or delete any copyright notices or proprietary rights notices which appear in the Services or Documentation.

1.3 Copies. Vendor may not make any copies of the Documentation, Services and/or results for backup and/or archival purposes.

2.   OWNERSHIP OF INTELLECTUAL PROPERTY.

2.1 Ownership.  VitalWare shall own all right, title and interest in and to any and all tangible or intangible works and materials provided or developed by VitalWare in connection with the Services, including but not limited to software, systems, solutions, processes, formulae, designs, inventions, algorithms, documentation, computer source and/or object code (collectively, the “VitalWare Intellectual Property”).  This Terms of Use Agreement does not transfer or convey to Vendor or any third party any right, title or interest in or to the VitalWare Intellectual Property or any associated intellectual property rights, but only a limited license and right to use revocable in accordance with these Terms of Use.  VitalWare represents that it owns or has the proper rights to the intellectual property rights within the Services and the Documentation, and that Vendor’s use of he Services and Documentation as contemplated by these Terms of Use shall not violate the intellectual property rights of any third party.

2.2 Confidential and Proprietary Information.  Each party acknowledges that certain information it will acquire from the other party is of a special and unique character and constitutes Confidential Information.  For purposes of these Terms of Use, “Confidential Information” means any information, not generally known about the business or not readily ascertainable by proper means by others, including competitors or the general public, and includes trade secrets, VitalWare passwords, and the terms and provisions of these Terms of Use.  Having acknowledged the foregoing, each party agrees: (i) to exercise the same degree of care and protection (but no less than a reasonable degree of care and protection) with respect to the other party’s Confidential Information as each party exercises with respect to its own Confidential Information; and (ii) not to, directly or indirectly, disclose, copy, transfer or allow access to any Confidential Information of the other party without the other party’s prior written consent.  Notwithstanding anything to the contrary herein, each party may disclose Confidential Information to its employees and to third parties performing services for such party related to the purposes of these Terms of Use, who have need to know and who have a legal duty to protect such Confidential Information.  In addition, neither party shall, without obtaining the prior written consent of the other party, disclose the terms and conditions of these Terms of Use to any third party, except Third Party Contractors or as required by legal procedures or by applicable law. 

2.3 Non-Compete. Vendor agrees not to develop or encourage the development of a product substantially similar in purpose or design to the Services during the Evaluation Period and for one (1) year after the termination of these Terms of Use. Nothing herein is intended or may be construed as prohibiting Vendor from purchasing or licensing similar Services from competitors of VitalWare.

3.   TERM AND TERMINATION/ LEGAL EFFECT.

3.1 Term.  This Terms of Use shall become effective on the Effective Date and shall remain in effect for an initial term of sixty (60) days (such period of time, the “Initial Term”) unless terminated earlier pursuant to the provisions of this Section.  Thereafter, this Terms of Use shall renew by written consent between the parties for successive periods (each a “Renewal Term”, and together with the Initial Term and any prior Renewal Terms, the “Term”).

3.2 Termination. Either party may terminate this Terms of Use prior to the expiration of the Initial Term or any Renewal Term thereof as follows:  (i) if either party fails to perform any of its material obligations under this Terms of use and such failure remains uncured for ten (10) days after receipt of written notice of default from the other party specifying the default in reasonable detail; or (ii) immediately if either party ceases to conduct all business, becomes or is declared insolvent or bankrupt, files a petition in bankruptcy, is the subject of any proceeding relating to its bankruptcy, liquidation or insolvency which is not dismissed within thirty (30) days.  

These Terms of Use is a preliminary statement of the intentions of the Parties and is not intended to create a lasting legal relationship between the Parties, except as expressly noted above. Each Party will not have any legal obligation to proceed with the proposed business relationship, and no Party will assert any claim against any other Party for any decision to terminate the Terms of Use. 

These Terms of Use will remain effective until such time as the Parties execute a formal written Agreement or one Party terminates these Terms of Use by providing written notice of termination to the other Party, whichever occurs first.

4.   MISCELLANEOUS.

4.1 Nature of Relationship.  The relationship between the Parties is non-exclusive and neither Party shall be prohibited from entering into a similar type of arrangement with any other party. It is the expectation of the Parties that the formal written Agreement will contain provisions that address the ownership and use rights of combined/integrated solutions developed by the Parties. Each Party enters into and performs these Terms of Use as an independent contractor of the other Party.

4.2 Assignments.  Vendor agrees that Vendor will not assign, sublease or transfer this Terms of Use Agreement, nor any rights under it (including without limitation access to the Services), in whole or in part, without VitalWare’s prior written consent.  VitalWare may assign this Terms of Use and any obligations under this Terms of Use.  .

4.3 Agreement.  The Parties anticipate that the formal written Agreement will include provisions regarding: the retention by the Parties’ of their respective intellectual property rights; warranties; indemnification and limitation of liability.

4.4 Force Majeure.  Neither party shall be responsible for any delay or failure in performance of any part of this Terms of Use to the extent that such delay or failure is caused by fire, flood, explosion, war, terrorism, embargo, government requirement, civil or military authority, act of God or other similar causes beyond its control. 

4.5 Remedies.  Each party agrees that the other’s Confidential Information is of a special, unique and extraordinary character and that disclosure or other use of such information in violation of this Agreement may irreparably harm the disclosing party.  For this reason, each party agrees that the disclosing party shall be entitled to seek injunctive relief to further prevent use and/or disclosure in addition to other remedies available to it in law or in equity for breach of this Terms of Use.