Ovusoft User Agreement and License
Effective Date: August 20, 2010
This is a User Agreement and License between Ovusoft, LLC, a Virginia limited liability company ("Ovusoft") and the individual reviewing this document online (referred to as "You" or "Your" in this Agreement).
Ovusoft provides online tools to assist individuals with charting their fertility by recording various aspects of their health, medications and
activities (including temperature, cervical fluid characteristics, daily symptoms, prescription medications, procedures etc.). These tools are part of
the Ovusoft Fertility website (ovusoft.com) and are referred to as "Services" in this Agreement. The Services include a Fertility Calendar,
Fertility Chart, Fertility Planner, and other tools which You may use to record information to help track and estimate your fertility, and other
relevant information ("Personal Health Information").
1) Term of Agreement and Services.
a) Starting Date. This Agreement will be effective and you will be authorized and licensed to use the Services as of the date you accept this Agreement.
b) Termination of Agreement. Your authorization and license to use the Services will terminate on the effective date of the termination of this Agreement.
c) You may terminate this Agreement at any time by written notice to Ovusoft. The effective date for such a termination will be the last day of the next month after Ovusoft receives your notice.
d) Ovusoft may terminate this Agreement at any time by written notice to you. The effective date for such a termination shall be the last day of the next month after Ovusoft sends you the notice.
2) Suspension of Services.
Ovusoft may suspend Your use of the Services at any time (a) for Your failure to pay, when applicable, Your Subscription Fee when due, upon written notice to You, or (b) that Ovusoft has reason to believe that You have used or are using the Services (i) for any unlawful purpose, (ii) in order to infringe or facilitate the infringement of any copyright or other intellectual property right, or (iii) otherwise in violation of this Agreement. If Ovusoft determines that there is no reasonable evidence supporting such belief Ovusoft shall reinstate your use of the Services.
3) Financial Terms
Services are provided free of change unless otherwise noted where the Services are made available to you in consideration of your payment of the applicable Subscription Fee, according to the terms published on the Ovusoft website. The Subscription Fee terms may be amended from time to time on no less than thirty (30) days notice to you.
4) Using the Services
a) Purposes for Use of the Services. You may only access and use the Services for Your personal health and fertility purposes. You may not provide services to others based on our service.
b) Delivery of Services. The Services are available only over the Internet, from websites designated by Ovusoft.
c) Access to the Services. The Services are accessible by use of a personal computer, laptop, mobile phone or other comparable device using standard, commercially available Internet browser applications as specified by Ovusoft, and any standard Internet connection. You are responsible for providing your own computer, browser and Internet connection. The quality of the Services You obtain, including but not limited to graphics quality, connection speeds and potential for interruption, depends upon the computer, browser and Internet connection used, and is therefore not the responsibility of Ovusoft.
d) Availability of Services. Ovusoft will use commercially reasonable efforts to make the Services available twenty-four hours per day, 365 days per year, subject to interruption for reasonable periods from time to time for purposes of maintenance, upgrades and other management activities. The Services may also be subject to interruption for other reasons not subject to Ovusoft's control, such as events or occurrences affecting Internet services providers or data hosting services.
e) Use of Services for Clinical Communications. You may choose to give your healthcare provider access to Your Personal Health Information as provided in Section 5 below. However, Ovusoft cannot guarantee the uninterrupted availability of the Services or the accuracy, integrity or completeness of any Personal Health Information. THE SERVICES MUST NOT BE USED TO COMMUNICATE INFORMATION WHICH MAY INDICATE OR BE NEEDED TO SUPPORT HEALTHCARE IN A MEDICAL EMERGENCY OR OTHER URGENT MEDICAL SITUATION. If you are experiencing symptoms which indicate you may be having an emergency or urgent medical situation you should immediately contact emergency medical care or your healthcare provider.
5) Access to the Services.
a) Procedures for Your Access. Upon Your acceptance of this Agreement, Ovusoft will provide you access to the Services. Your user name and password will identify you to Ovusoft, and authenticate your identity for these purposes.
b) You are responsible for any use of your user name or password. Ovusoft will rely upon your user name and password in granting access to the Services and Your Personal Health Information, and cannot independently determine whether you are the person presenting them.
c) You must comply with Ovusoft's Password Management Policy provided on the Ovusoft website, as updated from time to time.
d) Family, Friends and Providers Access. Subject to the License granted by this Agreement You may choose to authorize members of your family, your friends and healthcare providers, or other individuals involved in your health to access to the Services so that they can review Your Personal Health Information. In order to do so you must set your chart sharing preferences on the Ovusoft website, according to the instructions provided for such sharing.
e) You may terminate the shared access to your charts at any time on the Ovusoft website, according to the instructions for such termination.
f) Adding a chart to a public gallery negates the privacy protections provided by chart sharing features and will allow anyone to access the Personal Health Information contained in charts posted there. Further, posting charts in the public galleries may allow others to identify you to the extent that you provide personally identifiable information within the chart or accompanying description.
6) License for Services
b) License Restrictions. You may not use the Services for any purpose not expressly
allowed by this Agreement. In particular, but without limiting the preceding restriction, you may not:
i) Reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of any software included in the Services.
ii) Modify, enhance or create derivative works based on or including the Services without Ovusoft's prior written consent.
iii) Rent or lease use of the Services to any other party, including service bureau work, multiple-user licenses, application service provider services, rental arrangements or time-sharing arrangements.
iv) Use the Services to provide communications or data, document or records transfer services, except to the extent that such communications or transfer includes Your Personal Health Information.
v) Use the Services for any purpose or activity which may be illegal; may cause harm to any person, or may interfere with the effective functioning of the Services.
vi) Use the Services to seek to obtain, view, copy, alter, destroy, disclose or transmit any information about any other person.
vii) Use any user name and/or password to access the Services, other than one issued to or properly created by you.
viii) Use the Services in any way that could damage, disable, overburden, or impair or interfere with any other party's use of the Services.
ix) Use the Services to attempt to gain unauthorized access to any information, documents, records, accounts, devices, systems or networks connected to the Services through hacking, password cracking, IP spoofing or any other means.
x) Use the Services to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
xi) Upload or distribute files that contain viruses, Trojan horses, worms, spyware, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage electronic data or the operation of any device or software.
xii) Use the Services for any personal commercial use, surveys, contests, pyramid schemes, chain letters, junk e-mail, spamming or any duplicative or unsolicited messages (commercial or otherwise).
xiii) Use the Services to defame abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
xiv) Use the Services to publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
xv) Use the Services to upload, or otherwise make available, files or messages that contain images, photographs, movies, music, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) without the legal right to do so.
xvi) Use the Services to advertise or offer to sell or buy any goods or services for any business purpose.
xvii) Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is provided through the Services.
7) Intellectual Property Rights.
a) Ovusoft or its suppliers own all title and intellectual property rights in and to all images, photographs, animations, video, audio, music, text and "applets" incorporated into the Services ("Content"), which are protected by applicable copyright or other intellectual property laws and treaties. You are granted the rights to access and view the Content for purposes related to your personal pain management, but not to use it for any other purpose.
b) Copies of Content. You may be provided with documentation or other materials in electronic form in connection with the Services.
You may print one copy of such materials, for your personal use only, unless Ovusoft expressly permits you to make more copies. You may not make any
copies of hard-copy materials provided in connection with the Services unless Ovusoft expressly permits you to do so.
8) Defense of Infringement and Misappropriation Claims.
a) Notice and Cure. In the event that Ovusoft should receive notice that the Services may infringe any copyright, trademark or patent or constitute a misappropriation of a trade secret, Ovusoft may, at its sole discretion:
i) Obtain rights permitting You to continue using the Services; or
ii) Modify the Services to provide materially equivalent substitute for substitute functioning.
iii) If Ovusoft is unable to obtain rights for you to continue use of the Services or provide a functional substitute using commercially reasonable efforts, Ovusoft will refund any fees paid by you for use of the Services during the period the Services were infringing, and terminate this License.
b) Defense. Ovusoft will defend You against any claims by an unaffiliated third party that Your use of the Services infringed any copyright, trademark, patent or trade secret, including but not limited to an action for injunctive relief based on such a claim, but only if You give Ovusoft prompt written notice of such a claim, give Ovusoft sole control over its defense or settlement, and cooperate with Ovusoft in such defense.
c) Limitation of Duty to Defend. Ovusoft will have no obligation to defend you against any claim:
i) That results from You combining the Services with any other product, business process or data, if the claim would not have arisen but for the combination; or
ii) That results from or was caused by any violation of this Agreement.
iii) Exclusive Remedy. The rights and remedies stated in this Section are Your exclusive remedies for any claim of infringement or misappropriation of
the intellectual property rights of any third party by the Services, whether those rights and remedies arise under statutory or common law or
9) Limitation of Liabilities.
a) DISCLAIMER OF WARRANTIES. YOU ARE CONSIDERED TO HAVE ACCEPTED THE SERVICES AS OF THE DATE YOU ACCEPT THIS AGREEMENT. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, OVUSOFT AND ITS SUPPLIERS PROVIDE THE SERVICES "AS IS" AND WITH ALL FAULTS, AND OVUSOFT AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, SECURITY, CONFORMITY TO DESCRIPTION, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, RESULTS, LACK OF VIRUSES, ALL WITH REGARD TO THE SERVICES OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICES. THE ENTIRE RISK AS TO THE QUALITY OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES AT ALL TIMES REMAINS WITH YOU AT ALL TIMES.
b) EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL OVUSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER DATA OR INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE
TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY
WAY RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES , THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICES, OR OTHERWISE ARISING OUT OF YOUR USE
OF THE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS LICENSE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE),
MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF OVUSOFT OR ANY SUPPLIER, AND EVEN IF OVUSOFT OR ANY SUPPLIER HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
c) LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), YOU’RE SOLE AND EXCLUSIVE
REMEDY UNDER THIS LICENSE IS TO DISCONTINUE USING THE SERVICES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE GREATEST
EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10) Dispute Resolution.
a) Arbitration. All claims or disputes arising from or pertaining to this Agreement, excepting only actions for injunctive relief for violations or threatened violations of the License terms of Section 5, shall be determined by final and binding arbitration, conducted in Hampton, Virginia, in accordance with the Arbitration Rules then obtaining of the American Arbitration Association. Judgment upon any arbitration award may be entered in any court of competent jurisdiction.
b) Injunctive Remedies for License Violations. You hereby acknowledge that any violation of the License terms of Section 6 by you will cause irreparable injury to Ovusoft, and, as a result, Ovusoft shall be entitled to seek any injunctive relief or other rights or remedies to which Ovusoft is or may be entitled to under law.
c) Applicable Law. This Agreement shall be interpreted consistently with federal law applicable to the parties, provided that state law issues shall be exclusively interpreted according to the laws of the Commonwealth of Virginia, without regard to choice of law principles.
d) Jurisdiction and Venue. Jurisdiction and venue for any action for injunctive relief under this License shall be in the 8th Judicial Circuit of Virginia, at Hampton, Virginia. The Subscriber hereby waives all defenses of lack of personal jurisdiction and forum non conveniens.
e) Legal Fees and Costs. In the event of legal proceedings for injunctive relief arising from or pertaining to this Agreement the
substantially prevailing party shall be awarded its reasonable attorneys fees and costs of litigation, including any on appeal or in bankruptcy
From time to time Ovusoft may amend this Agreement, by posting a notice of such amendment and publishing the amended Agreement on the Services website.
If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.