Developer User Agreement

Last Revised: October 10, 2024

This Developer User Agreement (the “Agreement”) is a legally binding agreement between Commure, Inc. (“Commure”, “we”, “us” or “our”) and you and states the terms and conditions that governs your use of the Developer Services (defined below).   BY CLICKING “I AGREE,” OR BY OTHERWISE SIGNING-UP FOR AN ACCOUNT, OR BY ACCESSING OR USING THE DEVLOPER SERVICES, YOU ARE ENTERING INTO THIS AGREEMENT AND YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND OUR PRIVACY POLICY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT AND OUR PRIVACY POLICY, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE DEVELOPER SERVICES.

IMPORTANT NOTICE: DISPUTES ABOUT THIS AGREEMENT AND THE DEVELOPER SERVICE PROVIDED BY COMMURE ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “ARBITRATION” SECTION BELOW.  

1. Developer Services.  

a. Use.  Developer Services are the developer tools and services, application programming interfaces (“APIs”), libraries, components, Sandbox Environment, text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms, and other content (collectively, “Commure Materials”) that are made generally available to our developer community via a registered account with us for the purposes of creating healthcare applications.  The Developer Services excludes any tools, resources or applications accessible outside of our website.  We have sole discretion to determine all features and operations of the Developer Services and to change the Developer Services from time to time, including imposing limits on certain features of the Developer Services or restrict access to all or part of the Developer Services (or parts or components therein).  You acknowledge that we have no obligation to promote, distribute or provide you with the Developer Services or any portion of the Developer Services, or to continue any of the foregoing once begun.  The Developer Services may be subject to limitations, such as limits on storage space or the number of calls you are permitted to make against our APIs.  You must not exceed or circumvent any limitations we communicate to you regarding access, calls and use of the Commure Materials.  Your use of the Developer Services must not be unreasonable or excessive, and must not overload our systems.  You are solely responsible for any reliance by you on the Developer Services or other use you make of the Developer Services. 

b. No Fees.  We currently provide the Developer Services at no charge. We reserve the right to change our pricing policies for Developer Services at any time in our sole discretion. We will provide you reasonable notice of any such changes.

2. Accessing the Developer Services. 

a. Eligibility.  To use the Developer Services, you must be, and represent and warrant that you are, at least 18 years of age and possess the legal right and ability to enter into a legally binding agreement with us.  You must notify us immediately of any change in your eligibility to use the Developer Services (including any changes to or revocation of any licenses from state, provincial, territorial or other authorities).

b. Registration. To sign up for the Developer Services, you must register for an account (an "Account") by creating a username and password. You must provide accurate, current and complete information and keep your Account information updated. By registering for an Account, you agree that you are solely and fully responsible for all activities that occur under your Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents).  You shall not: (i) select or use as a username a name of another person or password of another person or impersonate another person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You may never use another person's user account or registration information for the Developer Services.  You agree to provide accurate information in your registration and not to share your password with third parties. 

c. Authorized Representatives. If you are registering an account on behalf of a company or legal entity, you represent and warrant that (i) you have the authority to act on such entity’s behalf; (ii) the information you submitted is complete and accurate; and (iii) you have the authority to enter into this Agreement on behalf of the entity and bind such entity to the terms of this Agreement. 

d. Responsibilities. You are solely and fully responsible for keeping your Account credentials secure.  You must notify us immediately of any breach of security or unauthorized use of your Account. You shall never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to us.  We may assume that any communications we receive under your Account has been made by You. You agree to notify us promptly of any unauthorized use of your account and of any loss, theft or disclosure of your password.  You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account. We reserve the rights to request from you any verification we deem necessary before restoring access to or providing information about your Account in our sole discretion. Failure to comply with the requirements set forth in this Section 2 shall constitute a breach of this Agreement and shall constitute grounds for immediate termination of your Account and your right to use the Developer Services.  You will be liable for losses, damages, liabilities, expenses, including attorneys’ fees incurred by us or a third party due to someone using your Account.  WE WILL NOT BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGE, INCLUDING ATTORNEYS’ FEES, AS A RESULT OF YOUR FAILURE TO PROVIDE US WITH ACCURATE INFORMATION OR TO KEEP YOUR ACCOUNT SECURE, OR AS A RESULT OF SOMEONE USING YOUR PASSWORD OR ACCOUNT, EITHER WITH OR WITHOUT YOUR KNOWLEDGE OR AUTHORIZATION.  

e. Commure Credentials.  In order to access certain components, libraries, images, content, materials, information and APIs included in the Developer Services (“Components”), we will provide you with credentials that allow you to access and use those Components, which may include a Sandbox Environment application key or token specific to you (“Credentials”).  The Credentials are Confidential Information (as defined in Section 11 below) and are the property of Commure.  You are prohibited from disclosing, transferring, selling or sublicensing the Credentials or other Commure credentials to any third party.  You understand and agree that you are liable for any actions performed using your Credentials or other Commure credentials. Any access or attempt to access the Developer Services or any Components of the Developer Services must comply with integration requirements, specifications and guidelines found in the Developer Services documentation (“Documentation”), as may be updated by us from time to time.  You will not misrepresent your identity or your application’s identity when using the Components.  We may revoke your Credentials at any time for any reason in our sole discretion upon notice to you. 

3. Sandbox Environment. You may use the test environment that we provide to you as part of the Developer Services (“Sandbox Environment”) to test your integration and applications. Only test data may be submitted or uploaded to the Sandbox Environment. You are prohibited from using any real protected health information or personal health information in the Sandbox Environment, that belongs to a real individual or entity, including yourself.  We have no obligation to maintain test data or any data you upload in the Sandbox Environment and may delete any or all data in the Sandbox Environment at any time without notice to you. We do not guarantee the functionality, availability or uptime of the Sandbox Environment. We may update or modify any components, libraries or APIs from time to time in our sole discretion (“Updates”), and such Updates may affect your existing integration and application.  We may also require that you use an updated version of any APIs, libraries or components and to make any required changes to your application as a result.  

4. License, Restrictions and Prohibited Uses.

a. License. Subject to the restrictions and prohibited uses and your compliance with the terms of this Agreement, during the term of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, personal, revocable and limited license to access and use the Developer Services solely for your personal, noncommercial and internal use and solely for the purposes of creating healthcare applications, but only in a manner that complies with all legal requirements that apply to you or your use of the Developer Services, including this Agreement, and provided that you do not (i) modify the Developer Services or any components and tools therein, any Content or any copyright or proprietary notices, and (ii) engage in any prohibited uses described in this Agreement.  The foregoing license do not include any rights to (a) sell, resell or commercially use the Developer Services or (b) use the Developer Services other than for their intended purposes. Any use of the Developer Services other than as specifically authorized herein is strictly prohibited and will terminate the license granted herein. In addition, we may revoke this license at any time in our sole discretion.

b. Restrictions. You may not modify, translate copy, distribute, mirror, frame, publicly display, publicly perform, reproduce, translate, publish, license, create derivative works of, or transmit the Developer Services (in whole or in part and including any Content or materials obtained from or included in the Developer Services) in any way through any medium for distribution, publication or any commercial purpose.  You will not use the Developer Services in any manner that could damage, disable or impair the Developer Services, the Commure FHIR enabled platform (“Platform”), or any other Commure products and services (collectively, the Developer Services, Platform and Commure products and services, the “Commure Products”), or interfere with the Commure Products or any feature of the Commure Products or other’s use of the Commure Products, including any use that violates any laws, infringes on anyone’s rights or is offensive.  You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Developer Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, or (ii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations. Your use of the Developer Services is at our discretion and we can terminate your use, prohibit you from using the Developer or take appropriate legal actions at any time.  

c. Prohibited Use.  As a condition of your use of the Developer Services, you promise not to use the Developer Services or any aspect or feature thereof for any purpose that is prohibited by this Agreement, for any unlawful purpose or in any way that might harm, damage or disparate any other party. You are responsible for all of your activity in connection with the Developer Services and any activity that occurs in your account or your sub-accounts.  Without limiting the proceeding sentence, you agree that you will not, do or attempt to:

(i) Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Developer Services, use of the Developer Services, access to the Developer Services, or content obtained through the Developer Services (including without limitation website content, third party content, and user content), for any purpose other than for your personal, noncommercial purposes;

(ii) Access or use the Developer Services for any commercial or business purpose, including without limitation for comparative or competitive research purposes;

(iii) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, or features that enforce limitations on the use of the Developer Services or any content therein; 

(iv) Probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;

(v) Use any manual or automated means to extract and compile content from the Developer Service for any purpose or otherwise circumvent technological measures designed to limit or prohibit such activity;

(vi) Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others, or engaging in, promoting or supporting any activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;

(vii) Publish, store, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;

(viii) Publish or post a person’s or entity’s private or personal information without their express authorization and permission. 

(ix) Create a false identity or impersonate another person or entity or misrepresent an affiliation with a person or entity for the purpose of or in a manner that does or is intended to mislead, confuse or deceive others, including, but not limited to providing misleading review, feedback, or other information about the Developer Services, or providing misleading information to any feedback system employed through the Developer Service or Commure websites;

(x) Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs; publishing of or linking to malicious content that damages or disrupt another user’s browser or computer; or engage in other actions which we reserve the sole right to determine to be malicious in intent;

(xi) Interfere with or disrupt the Developer Services, networks or servers connected to the Developer Services, or violate the regulations, policies or procedures of such networks or servers;

(xii) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of all or part of the Developer Services, website content, third party content, or user content, or any other part thereof, or otherwise attempt to use or access any of the Developer Services other than as intended;

(xiii) Upload, publish or otherwise transmit any information, materials or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in your user content, nor shall utilize the Developer Services to publish such materials, information or content in a manner that would expose them to public view in violation of the law.

(xiv) Use the Developer Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.

(xv) Send unsolicited communications, promotions advertisement or spam. 

(xvi) Access, tamper with, or use non-public areas of the Developer Services and Commure websites, our computer systems or the technical delivery systems of our vendors and service providers;

(xvii) Access or search the Developer Services and Commure websites by any means (for example, “scraping”); 

(xviii) Attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or

(xix) Use any method to circumvent the provisions of this Agreement or to obtain services in excess of those for which you are provided by Commure, or use any mechanism to exceed the amount of resources assigned to them through the Developer Services, or to conceal such activities.

(xx) Otherwise take any action in violation of this Agreement, our guidelines, policies, and instructions. 

d. Reservation of Rights. The enumeration of prohibitions in this Section 4 of this Agreement is not meant to be exclusive.  In addition to any other remedies that may be available to us, we reserve the right to take any remedial action we deem necessary, including immediately suspending or terminating your account or your access to the Developer Services or our websites, upon notice and without liability for Commure should you fail to abide by the obligations in this Section 4 or if, in Commure’s sole discretion, such action is necessary to prevent disruption of the Developer Services or Commure websites for other users.  We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.

5. Proprietary Rights.  Commure and/or its licensors own all rights, title and interest in and to the Developer Services, the Commure Materials, the Commure trademarks, logos and icons and the structure, organization and arrangement thereof, which are protected by law, including, but not limited to, copyright, trademark, trade dress and various other intellectual property and unfair competition laws.  You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Developer Service. You acknowledge that the Developer Service have been developed, compiled, prepared, revised, selected, and arranged by us and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Commure and such others. You agree to protect the proprietary rights of Commure and all others having rights in the Developer Service during and after the term of this Agreement and to comply with all written requests made by Commure or our suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Developer Service. You agree to notify us immediately upon becoming aware of any claim that the Developer Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Developer Services shall, as between you and Commure, at all times be and remain the sole and exclusive property of Commure. Any unauthorized use of any material contained on or through the Developer Services may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.  Unless otherwise expressly indicated in this Agreement, all information, materials, and content on or made available through the Developer Service, including, without limitation, the Commure Materials are exclusively owned by or are licensed to Commure and may be used only with permission.

6. Privacy Policy. Your use of the Developer Services and the information we collect about you is subject to our Privacy Policy. The Privacy Policy describes how we and our third-party partners collect, use, share and disclose information about you when you use the Developer Services. By using the Developer Services, you acknowledge that you have read, understand and agreed to the terms of the Privacy Policy.

7. Third Party Services and Materials. 

a. Third Party Software and Services.  The Developer Services may include certain third-party software, services, data, or applications that may require that you enter into separate agreements with such third parties. We may also make available optional services, either directly or through integrations with the Developer Services. You will comply with and, upon request, execute, any agreements or acknowledgments that may be required for the use of such software or services, and hereby agree to comply with the terms of any license or other agreement relating to third-party products included in the Developer Services or made accessible to you through the Developer Services. Additionally, your use of the Developer Services or of such third-party products or services will constitute your agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use.  Mention of third-parties and third- party products in any materials, documentation, advertising, or promotions provided to you as part of the Developer Services is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third-party product specifications and descriptions are supplied by the respective vendor or supplier, and we have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and you.  

b. Links to Other Sites. The Developer Services may contain hyperlinks or permit you to link to other websites, services or resources operated by third parties or to materials or information made available by third parties.  The placement of such links in or as part of the Developer Services do not constitute or imply our endorsement of such third parties, the content of their websites, their products or services, or the privacy or security practices of those websites.  Commure is not responsible or liable for (i) any content, products, advertising, information or materials on or available from such sites or resources, (ii) any errors or omissions in those sites or resources, or (ii) any information handling or other business practices of the operators of such sites and resources.  You acknowledge and agree that Commure will not be responsible or liable, directly or indirectly, for any damages or losses caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources.  Your interactions with such third parties will be governed by the third parties’ own terms of services and privacy policies, and any other terms.     When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. 

8. User Content and Feedback.

a. User Data.  Subject to Section 3 of this Agreement, the Developer Services allows you to upload data and content into the Sandbox Environment (“User Data”).  By uploading such User Data, you grant us a license to access, use, copy, reproduce, process, adapt, publish, transmit and display such User Data, including to comply with any legal or regulatory process. Without limiting the foregoing, we have no obligation to host or maintain any User Data and reserves the right to remove or delete any User Data uploaded to the Developer Services at our sole discretion.  You are solely responsible for the preservation of your User Data. WE SHALL HAVE NO RESPONSIBILITY TO PRESERVE USE DATA AND SHALL HAVE NO LIABILITY FOR ANY DATA THAT MAY BE LOST, OR UNRECOVERABLE, BY REASON OF YOUR FAILURE TO BACKUP YOUR USER DATA OR FOR ANY OTHER REASON.

b. Feedback. Comments, suggestions or materials sent or transmitted to us (collectively "Feedback"), shall be deemed to be non-confidential. Subject to the conditions described in the Privacy Policy, we have no obligation of any kind with respect to such Feedback and shall be free to use and distribute the Feedback to others without limitation, including, but not limited to developing and marketing products incorporating such Feedback. We reserve the right to publish or use any responses, questions or comments emailed to us for promotional or other purposes without any further permission, notice or payment of any kind to the sender. All such submissions will be the property of Commure.  We reserve the right to remove any Feedback posted in public forums for any reason at our sole discretion.

c. Forum.  As part of the Developer Services, we make available forums for the exchange of information amount our user (“Forum”). The Forum allows you and other users to submit, post, and share content such as reviews, support questions, support commentary, or any other content (“User Content”).  If you choose to participate in these Forums, you will comply with all Forum rules including the Community Guidelines. In particular, you understand that we do not assure the accuracy, reliability, confidentiality or security of information made available through the use of the Forums, and strongly recommend that you think carefully and use good judgment about what you submit to the Forum. You acknowledge that any information you post in a Forum may be made available to the public, and may result in your receiving communications from others outside of our website. You are responsible for safeguarding the privacy of your and other’s personal information when you participate in the Forums. You agree not to disclose individually identifiable health information through such forums. We may discontinue the provisioning of the Forum at any time at our sole discretion. 

d. User Content. You understand that all User Content is the sole responsibility of the person who generated such User Content.  This means that you, and not Commure, are entirely responsible for User Content that you make available through the Developer Service.  By submitting any User Content to the Developer Service and website, you hereby grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit such User Content, including without limitation for promoting and redistributing part or all of the Developer Services, Forum and website (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Developer Services. You also hereby do and shall grant each user of the Forum, website and/or the Developer Services a non-exclusive, perpetual license to access any of your User Content that is available to such user on the Forum or website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of your Account or the Developer Services. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. We do not control User Content and do not have any obligation to monitor such User Content for any purpose.  We may choose, in our sole discretion, to monitor, review, or otherwise access some or all User Content, but by doing so we nonetheless assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, or to monitor, review, or otherwise access other User Content, and we assume no responsibility for the conduct of the User submitting any User Content.  You acknowledge that we may or may not pre-screen User Content, but that we and our designees shall have the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any User Content that is available via the Forum or Developer Service. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other content, including any reliance on the accuracy, completeness, usefulness or legality of such User Content.  You should exercise your independent discretion and judgment before using any User Content. 

e. User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Data, User Content and Feedback without violation of any third-party rights. You understand that we do not control, and is not responsible for User Content or Feedback, and that by using the Developer Services and/or Commure websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. You also acknowledge that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold us harmless for all claims resulting from User Content or Feedback you submit through the Developer Service, the Forum and/or our websites. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.  You represent that all User Content, User data and Feedback provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all User Content accessed by you using the Developer Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any content you access on or through the Developer Services is or will continue to be accurate.  We make no representations that we will publish or make available any User Content on the Forum or Developer Services, and reserves the right, in our sole discretion, to reject or remove any User Content at any time with or without notice and without any liability of any kind. UNDER NO CIRCUMSTANCES WILL COMMURE BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY USER CONTENT OR USER DATA.

f. User Content Prohibited Uses. You acknowledge and agree that any User Content, User Data or Feedback submitted by you: (i) will not violate any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity; (ii) is not deceptive, fraudulent, illegal, obscene, abusive, racially or ethnically offensive, pornographic, harmful, vulgar, defamatory, slanderous, libelous or threatening, constitutes hate speech, harassment, or stalking or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) contains any personal information of others or minors; (iv) will not contain any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information; (v) will not contains viruses, bots, worms, or similar harmful materials; (vi) will not contains any information that you do not have a right to make available under law or any contractual or fiduciary duty, or (vii) will not be advertisements or solicitations of business.

9. Independent Development.  You acknowledge that Commure is also a developer of healthcare applications. Accordingly, nothing in this Agreement will impair Commure’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market, or distribute.  We will be free to use any information, suggestions or recommendations you provide to us pursuant to this Agreement for any purpose.

10. Term and Termination.

a. Term.  This Agreement will commence on the date you accept this Agreement and continue until terminated by us or you in accordance with Section 10b below. 

b. Termination. We reserve the right, in our sole discretion, at any time to modify or discontinue (temporary or permanently) the Developer Services (all or any part thereof), with or without notice.  In addition, we reserve the right, at any time, in our sole discretion to terminate your access to all or any part of the Developer Services, with or without notice, effective immediately, including but not limited to as a result of your violation of any provisions of this Agreement or any law, your misuse of the Developer Services or system resources, or for any reason, including if your Account has not been accessed in over 6 months. You agree that we will not be liable to you or any third party for any modification, suspension, discontinuance or termination of the Developer Services (or any part thereof). If you wish to terminate your Account, you may do so by following the instructions on the website or through the Developer Services. We reserve the right, but does not undertake any duty, to take appropriate legal action, including, without limitation, the pursuit of civil, criminal, or injunctive redress, against you for continuing to use the Developer Services during any suspension or after termination. We may recover its reasonable attorneys’ fees and court costs from you for such actions. This Agreement will remain enforceable against you while your license to access or use of the Developer Service is suspended and after it is terminated.

c. Effect of Termination. We have no obligation to maintain or provide any of your User Data to you and shall after termination, delete all of your User Data in our systems or otherwise in our possession or under our control.  UPON ANY TERMINATION OF THIS AGREEMENT, ALL APPLICATIONS AND OTHER MATERIALS DEVELOPED BY YOU USING THE DEVELOPER SERVICES AND HOSTED ON OUR PLATFORM WILL BE PERMANENTLY LOST.  

d. Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, arbitration, indemnity and limitations of liability.

11. Confidentiality.  You will: (a) protect and not disclose information made available by us that is identified as confidential or that reasonably should be considered confidential and shall cooperate with our efforts to maintain the confidentiality thereof; (b) use that information only to fulfill your obligations or exercise your rights under this Agreement; (c) shall not publish or distribute information or documentation that we provide relating to the operation and maintenance of our systems; and (d) either destroy or return all such information to us promptly when the Agreement terminates (and, upon request, confirm such destruction in writing).  The Developer Services are deemed the confidential information of Commure.  This section covers all confidential information regardless of when you receive it.

12. Indemnification. You agree to and will indemnify, defend and hold harmless Commure its affiliates and any of its and their officers, directors, employees, agents, contractors, representatives, shareholders, users, partners and licensors from and against any and all claims, actions, demands, proceedings, suits, liabilities, damages, settlements, penalties, fines, losses, or expenses, including attorneys’ fees, costs and disbursements, arising out of or in any way connected with your use of the Developer Services or Commure website, your violation of this Agreement, your violation of applicable laws and regulations, your violation of any rights of another individual or entity, or your submission, posting, transmission or provisioning of User Data or User Content on the Developer Services or Commure website.  We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.

13. Disclaimer.   COMMURE, ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS AND ACCURACY OF THE DEVELOPER SERVICES, USER CONTENT OR THE INFORMATION ON OR ACCESSIBLE FROM THE DEVELOPER SERVICES FOR ANY PURPOSE.  THE DEVELOPER SERVICES AND ANY INFORMATION ON OR ACCESSIBLE FROM THE DEVELOPER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY, GUARANTEE, OR REPRESENTATION OF ANY KIND. YOU AGREE THAT USE OF THE DEVELOPER SERVICES IS AT YOUR SOLE RISK. COMMURE, ITS AFFILIATES AND THEIR RESPECTIVE VENDORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTIES, STATUTORY WARRANTIES AND ANY IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  COMMURE DOES NOT WARRANT THAT THE DEVELOPER SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT BREACHES OF SECURITY AND YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE DEVELOPER SERVICES.  IF YOU ARE DISSATISFIED WITH THE DEVELOPER SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING AND ACCESSING THE DEVELOPER SERVICES.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO IN THESE JURISDICTIONS THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

14. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL COMMURE, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, VENDORS, PARTNERS AND LICENSORS (COLLECTIVELY, THE “COMMURE ENTITIES”) BE LIABLE OR RESPONSIBLE TO YOU OR ANY OTHER PERSONS OR ENTITIES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING DAMAGES FROM LOSS OF BUSINESS, LOST PROFITS, LOSS OF GOODWILL, LOSS OF INFORMATION, LOSS OF USE OR THE LIKE), SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES, WHETHER BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY RELATING TO THE DEVELOPER SERVICES, THE COMMURE WEBSITE, USER CONTENT OR USER DATA, ANY INFORMATION OR RECOMMENDATION APPEARING ON THE DEVELOPER SERVICES, FORUM OR COMMURE WEBSITES, ANY LINKS PROVIDED ON THE DEVELOPER SERVICES, OR YOUR USE OF THE DEVELOPER SERVICES OR USER CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE DEVELOPER SERVICES AND/OR THIS AGREEMENT IS TO DISCONTINUE YOUR USE OF THE DEVELOPER SERVICES.  IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE DEVELOPER SERVICES TO WHICH THE CLAIM RELATE.  IN THE CASE OF A JURISDICTION THAT RESTRICTS LIMITATION CLAUSES, THIS LIMITATION WILL BE APPLIED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE THAT MAY NOT BE LAWFULLY TERMINATED.

15. Arbitration. 

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

a. Consultation. In the event of any controversy or claim arising out of or relating in any way to this Agreement, the Developers Services, or any other dispute between you and Commure, you and Commure agree to consult and negotiate with each other to try to reach a solution satisfactory to both parties. Except for intellectual property and small claims court claims, you and Commure agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Both you and Commure agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any arbitration or filing any claim against the other party.

b. Binding Arbitration. If you and Commure do not reach a resolution within 60 days, then any unresolved controversy or claim (except as provided under Section 15(c) below) will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Mountain View, California.   You and Commure agree to submit to the personal jurisdiction of any federal or state court in Santa Clara County, California, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.  The language of all proceedings and filings will be English.  Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction, and will not be subject to appeal.  The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMMURE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. 

c. Exclusions. You and Commure are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents.  Accordingly, either you or Commure party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect yours and our intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in Mountain View, Santa Clara County, California for disputes or claims within the scope of that court’s jurisdiction.

d. Class Action Waiver. You and Commure agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMMURE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Further, unless both you and Commure agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.  If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

16. Precedence.  Your use of the Developer Services may be subject to a separate agreement between you and Commure. If any of the terms of such separate agreement conflict with any of the terms of this Agreement, the terms of such separate agreement will govern to the extent of such conflict, if so indicated in such separate agreement.

17. Governing Law; Jurisdictions; Disputes; Waiver of Jury Trial. The interpretation of this Agreement and the resolution of any disputes arising under this Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws provisions.  This Agreement shall not be governed by the United Nations Convention on Contract for the International Sale of Goods, the application of which is expressly disclaimed.  If any action or other proceeding is brought on or in connection with this Agreement, you agree to submit to the personal jurisdiction of the state and federal courts located in the City of Mountain View and County of Santa Clara  in the State of California, and agree not to bring any action relating to the use of the Developer Services or this Agreement in any court in any jurisdiction other than the state or federal courts located in the county of Santa Clara, State of California. Commure shall have the right to commence and prosecute any legal or equitable action or proceeding before any US or non-US court of competent jurisdiction to enforce this Agreement or to protect Commure’s or any third party’s rights in the Developer Services.  You also agree that Commure may bring suit in court to enjoin any violation of this Agreement without the posting of a bond or security, in addition to whatever remedies Commure might have at law.  In any dispute between you and Commure where Commure prevail, Commure shall be entitled to recover reasonable attorney’s fees, court costs, disbursements and other legal expenses. You hereby waive any right to a jury trial.  

18. Waiver and Severability. Failure to enforce any provision in this Agreement will not constitute a waiver of that provision. If any provision is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

19. Compliance with Law. As a condition of your use of the Developer Services, you warrant to Commure that you will not use the Developer Services for any purpose that is unlawful, offensive, interferes with the Developer Services or any feature therein, infringes anyone’s rights or prohibited by this Agreement. You agree to comply with all applicable federal, state and local laws regarding your use of the Developer Services. You acknowledge that your unauthorized use of the Developer Services may violate copyright laws and trademark laws, as well as other regulations and statutes. If you reside outside the United States, you also agree to comply with any local laws applicable to your use of the Developer Services.  

20. Export Compliance. The Developer Services are subject to the trade and economic sanctions maintained by the Office of Foreign Assets Control (“OFAC”). By accessing the Developer Services, you agree to comply with these laws and regulations. Specifically, you represent and warrant that you are not (a) located in any country that is subject to OFAC’s trade and economic sanctions, currently Cuba, Iran, North Korea, Syria, and the Crimea region of the Ukraine, or any other U.S. embargoed countries; or (b) an individual or entity included on any U.S. lists of prohibited parties including: the Treasury Department’s List of Specially Designated Nationals List (“SDN List”) and Sectoral Sanctions List (“SSI List”). Additionally, you agree to comply with the import and export control laws and regulations of the United States and other applicable jurisdictions in using the Developer Services.  Without limiting the foregoing, you agree (i) not to – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any service received from Commure in contradiction with laws and regulations or (ii) that the Developer Services and any Commure Confidential Information may not be exported or re-exported into any US embargoed countries or to anyone on the SDN List or SSI List. Failure to comply with these laws and regulations may result in the suspension or termination of your Account. You assume full legal responsibility for any access and use of the Developer Services from outside the United States and you shall defend, indemnify and hold Commure harmless from all claims and damages arising from the breach of the obligations set forth in this Section 20.

21. Notice.  We may deliver notice to you by e-mail, posting a notice on the Developer Service and/or Commure website, or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical address:

Commure, Inc.
ATTN: Legal 
1300 Terra Bella Avenue, Suite 200
Mountain View, CA 94043

22. Statute of limitations.  Except for residents of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Developer Services and Commure websites and/or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

23. Third party beneficiaries.  You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.

24. Force majeure.  Under no circumstances shall Commure or our licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond our reasonable control.

25. Relationship of the Parties. You and Commure are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between You and Commure.

26. Entire Agreement.  These Agreement together with any terms and policies that are incorporated by reference, constitute the entire agreement and supersede any prior agreements between you and Commure with respect to your use of the Developer Services.

27. Interpretation. For purposes of this Agreement, the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall." The word "or" shall be construed to have the same meaning and effect as "and/or." The words "herein," "hereof" and "hereunder," and words of similar import, shall be construed to refer to the terms and conditions set forth in this Agreement. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.