ALTRES Wellness Screening
Application Use Agreement
The ALTRES Wellness Screening Application, powered by HR Symphony® and available at WellnessTracker.com, is provided free of charge to Hawaii employers by the ALTRES Foundation as a community service.
1.1. Access to and use of the "Wellness Screening Application", is subject to the terms and conditions of this Wellness Screening Application Use Agreement ("Agreement"). PLEASE READ THIS AGREEMENT CAREFULLY. If you have read and agree to be bound by this Agreement, click on the "I Agree" button below ("Agree Button"). By clicking the Agree Button you represent and warrant you are at least eighteen (18) years old and have the power and authority to enter into this Agreement. If you don't agree to this Agreement you will not not be given access the Wellness Screening Application.
1.2. If at any point you receive, view, use, transmit, copy or otherwise utilize any portion of the Wellness Screening Application, you automatically agree, immediately upon such receipt or utilization, to be bound by all of the terms and conditions of this Agreement and you waive any and all rights you may have to claim your receipt/utilization of the Wellness Screening Application is not governed by this Agreement's terms.
2. This Agreement.
2.1. This Agreement is by and between the ALTRES Foundation (referred to herein as "ALTRES, Inc.", "we", "us", or "our") and you ("you" or "your").
2.2. We reserve the right to change or modify this Agreement at any time with or without notice to you and, unless otherwise stated by us, those changes/modifications will become effective immediately. Your continued use of the Wellness Screening Application following the effective date of any changes/modifications means you accept and agree to be bound by those changes/modifications.
2.3. Certain other capitalized terms in this Agreement have the meanings set out in Section 12. Defined Terms.
3.1. Under this Agreement, you are granted a free, nonexclusive, non-transferable license (without the right to sublicense) for the License Term to access and utilize the Wellness Screening Application solely for employee health screening purposes in connection with the SARS-CoV-2/COVID-19 pandemic.
3.2. You will not: (i) reproduce, publish, display, distribute, sell, sublicense, transfer, rent, lease, broadcast, timeshare, loan, disclose, or otherwise make available the Wellness Screening Application, to any third party; (ii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Wellness Screening Application; (iii) modify, translate, adapt, alter or create derivative works (as defined under the United States copyright laws) based upon the Wellness Screening Application; (iv) remove any proprietary notices, labels, or trademarks or service marks from the Wellness Screening Application; (v) merge the Wellness Screening Application or any part thereof with another program or software; (vi) use the Wellness Screening Application, or any part thereof, for any purposes other than those explicitly stated in this Agreement; (vii) have any right to any source code for the Wellness Screening Application; (viii) permit any Person who has not agreed to this Agreement to use the Wellness Screening Application; or (ix) make any unauthorized use of any Intellectual Property Rights of The ALTRES Foundation
3.3. Except for the limited license granted to you under this Agreement, all rights, title and interest in and to the Wellness Screening Application, including all Intellectual Property Rights, are and will continue to be the exclusive property of the ALTRES Foundation
4.1. Wellness Screening Application is provided in the community interest only, with the understanding that the ALTRES Foundation is not engaged or engaging in, or making any promise or commitment whatsoever to engage in, any of the following activities: (i) rendering legal or other professional advice or services; (ii) assisting or otherwise helping or enabling you to achieve, or to meet any governmental or legal requirements; or (iii) exercising any authority, direction, control or dominion over any of your employees or agents.
4.2. The information contained in or through the Wellness Screening Application is based upon sources believed to be accurate and reliable, and we have exercised reasonable care to assure the accuracy of that information. However, we make no representation or warranty as to such accuracy. The users of the Wellness Screening Application retain ultimate control over the policies and procedures that they choose to implement at their respective businesses and in how they use the information obtained through the Wellness Screening Application. By permitting you to view and access the Wellness Screening Application we do not, and do not intend to, exercise any direction, management, oversight, or control of your employment activities of your employees.
4.3. We reserve the right to suspend or terminate, without any notice, your access to or use of the Wellness Screening Application or any part thereof in our sole and absolute discretion.
YOU AGREE THAT YOU USE THE WELLNESS SCREENING APPLICATION AT YOUR OWN RISK. THE WELLNESS SCREENING APPLICATION IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY. WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS REGARDING THE ACCURACY, RELIABILITY, FUNCTIONALITY, USEFULNESS OR COMPLETENESS OF THE WELLNESS SCREENING APPLICATION. TO THE MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, LEGALITY, NONINFRINGEMENT, DESIGN, ACCURACY, CAPABILITY, SUFFICIENCY, SUITABILITY, CAPACITY, COMPLETENESS, AVAILABILITY, COMPATIBILITY OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DO NOT WARRANT THAT THE WELLNESS SCREENING APPLICATION WILL BE CONTINUOUSLY AVAILABLE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE LEGALITY, USE, OR THE RESULTS OF THE USE OF, THE WELLNESS SCREENING APPLICATION. THE ALTRES FOUNDATION DOES NOT MAKE ANY PROMISES OR WARRANTIES AS TO THE AVAILABILITY OR UPTIME OF THE WELLNESS SCREENING APPLICATION AND/OR THE TIMELINESS OF THE DELIVERY OF ANY TEXT, EMAIL, OR OTHER ELECTRONIC NOTIFCATIONS GENERATED BY OR ORIGINATING WITHIN THE WELLNESS SCREENING APPLICATION.
THE ALTRES FOUNDATION MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, THAT THE WELLNESS SCREENING APPLICATION, OR YOUR USE THEREOF, COMPLIES WITH ANY PROVISION OR ASPECT OF THE AMERICANS WITH DISABILITIES ACT, THE AFFORDABLE CARE ACT, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT, OR ANY OTHER FEDERAL, STATE, OR LOCAL LAW, REGULATION, OR ORDINANCE (COLLECTIVELY "MEDICAL PRIVACY AND DISCRIMINATION LAWS"). YOU ASSUME SOLE AND EXCLUSIVE RISK AND LIABILITY UNDER THE MEDICAL PRIVACY AND DISCRIMINATION LAWS RELATING TO OR PERTAINING TO YOUR USE OF THE WELLNESS SCREENING APPLICATION AND AGREE TO FULLY DEFEND AND INDEMNIFY THE ALTRES FOUNDATION FROM AND AGAINST ANY CLAIMS ARISING OUT OF THE MEDICAL PRIVACY AND DISCRIMINATION LAWS RESULTING FROM OR RELATED TO YOUR USE OF THE WELLNESS SCREENING APPLICATION.
USE OF THE WELLNESS SCREENING APPLICATION IS PROHIBITED OUTSIDE OF THE STATE OF HAWAII.
6. Limitation of Our Liability.
UNDER NO CIRCUMSTANCES WILL THE ALTRES FOUNDATION BE LIABLE TO YOU OR ANY OTHER USER OF THE WELLNESS SCREENING APPLICATION OR TO ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, ARISING FROM USE OF THE WELLNESS SCREENING APPLICATION FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE THE WELLNESS SCREENING APPLICATION, EVEN IF THE ALTRES FOUNDATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE ALTRES FOUNDATION 'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU (WHICH IS USD $0.00), FOR ACCESSING THE WELLNESS SCREENING APPLICATION IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
You agree, at your own expense, to indemnify, defend and hold harmless The ALTRES Foundation and our respective licensors, agents, directors, officers, employees, attorney, insurers, reinsurers, representatives, successors, and assigns from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys' and experts' fees, arising out of or in connection with your breach of this Agreement and/or your use of the Wellness Screening Application. You agree to pay any and all costs, damages, and expenses, including reasonable attorneys' and experts' fees and costs awarded against or otherwise incurred by or in connection with any such claim, suit, action, or proceeding attributable to any such claim. The ALTRES Foundation reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you in which event you will fully cooperate with The ALTRES Foundation in asserting any available defense. You acknowledge and agree to pay The ALTRES Foundation reasonable attorneys' and experts' fees incurred in connection with any and all lawsuits brought against you by the ALTRES Foundation under or in connection with this Agreement including lawsuits arising from your failure to indemnify the ALTRES Foundation pursuant to this Agreement.
BY USING THE WELLNESS SCREENING APPLICATION YOU ACKNOWLEDGE AND AGREE THAT THE ALTRES FOUNDATION AND ALTRES, INC.'S AFFILIATES ARE RELEASED, DISCHARGED AND HELD HARMLESS FROM AND ARE NOT RESPONSIBLE OR LIABLE FOR ANY LIABILITY WITH RESPECT TO ALL ASPECTS OF THE WELLNESS SCREENING APPLICATION (INCLUDING ANY ILLNESS, LOSSES, ILLEGALITY, LITIGATION, PERSONAL INJURY, DEATH, PROPERTY DAMAGE, AND CLAIMS BASED ON PUBLICITY RIGHTS, DEFAMATION, OR INVASION OF PRIVACY, REASONABLE ATTORNEYS' AND EXPERTS' FEES AND COURT COSTS) THAT MAY OCCUR FROM USE OF THE WELLNESS SCREENING APPLICATION OR THE ACCEPTANCE, POSSESSION, USE OR MISUSE OF INFORMATION, MATERIALS, SERVICES OR PRODUCTS RELATED THERETO OR ACQUIRED THEREFROM. WE RESERVE THE RIGHT TO SEEK ANY FORM OF RELIEF, INCLUDING ATTORNEYS' AND EXPERTS' FEES RELATED TO FRAUDULENT OR ILLEGAL ACTIVITY CONNECTED WITH YOUR USE OF THE WELLNESS SCREENING APPLICATION.
9. No Agency or Employment.
You and the ALTRES Foundation are independent entities and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended/created by this Agreement.
10. Collection of Information.
The ALTRES Foundation may record all use of the WELLNESS SCREENING APPLICATION and assignment of all login identifications used to access same. The ALTRES Foundation has the right to examine such records and to audit your access to and usage of the WELLNESS SCREENING APPLICATION. The ALTRES Foundation may collect and utilize anonymized statistical data regarding the utilization of the WELLNESS SCREENING APPLICATION. The ALTRES Foundation will not examine, audit, moderate, mange, or validate the employee health data collected by your use of the WELLNESS SCREENING APPLICATION and shall not be responsible or liable for how the data collected by the WELLNESS SCREEING APPLICATION is used or not used by you.
11. Ideas and Concepts.
Any and all title, ownership rights, and Intellectual Property Rights concerning any ideas, concepts, suggestions, materials and the like that you provide to The ALTRES Foundation regarding the WELLNESS SCREENING APPLICATION will become the exclusive property of The ALTRES Foundation and may be used for our business purposes in our sole discretion without any payment, accounting, remuneration or attribution to you.
12. Defined Terms.
The following capitalized words used in this Agreement have the meanings below:
- "Agreement Effective Date" is the earlier of the following: (i) the date you click the Agree Button and (ii) the first date you access or use the WELLNESS SCREENING APPLICATION pursuant to Section 1.2.
- The "ALTRES Foundation," in addition to the respective licensors, agents, directors, officers, employees, attorney, insurers, reinsurers, representatives, successors, and assigns of the ALTRES Foundation also means any entity using the trademarks and trade names "ALTRES" and "SimplicityHR" or other logotypes, trademarks, service marks or trade names now or hereafter used by the ALTRES Foundation or any other company or entity using the word "ALTRES" in its legal or operational name(s).
- "Include" and its derivatives (such as "including" and "includes"), whether or not capitalized, mean including without limitation.
- "Intellectual Property" and "Intellectual Property Rights" each mean all intellectual property rights, including (i) any patent, patent application, trademark (whether registered or unregistered), trademark application, trade name, service mark (whether registered or unregistered), service mark application, copyright (whether registered or unregistered), copyright application, trade secret, proprietary information, know-how, process, technology, development tool, ideas, concepts, design right, moral right, data base right, methodology, algorithm or invention, (ii) any right to use or exploit any of the foregoing, and (iii) any other proprietary right or intangible asset (including software).
- "License Term" means the period of time commencing on the Agreement Effective Date and ending on the earliest to occur of the following: (i) termination of your use of the WELLNESS SCREENING APPLICATION by us; (ii) your violation of any term or condition of this Agreement; (iii) the WELLNESS SCREENING APPLICATION no longer being made available to you; or (iv) termination of all Emergency Orders of the City and County of Honolulu, Maui County, Kauai County, Hawaii County, and Proclamations of the State of Hawaii relating to the SARS-CoV-2 pandemic and the federal Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, issued on March 13, 2020.
- "Person" means, individually and collectively, any human being, group, association, joint venture or legal entity (including a corporation, limited liability company, partnership, general partnership, limited partnership, limited liability partnership, cooperative, foundation, trust, sole proprietorship and any equivalent of any of the foregoing created or subject to the laws of any jurisdiction).
13. Content Restrictions
The ALTRES Foundation is not responsible for the information and content you load or program into the WELLNESS SCREENING APPLICATION. You expressly understand and agree that You are solely responsible for such information and content and for all activity that occurs under your account, whether done so by You or any third person using Your account.
You may not load, program, or transmit any information or content into the WELLNESS SCREENING APPLICATION that is unlawful, offensive, upsetting, intended to disgust, threatening, libelous, defamatory, obscene or otherwise objectionable. Examples of such objectionable information or content include, but are not limited to, the following:
- Unlawful or promoting unlawful activity.
- Defamatory, discriminatory, or mean-spirited content, including references or commentary about religion, race, sexual orientation, gender, national/ethnic origin, or other targeted groups.
- Spam, machine ? or randomly ? generated, constituting unauthorized or unsolicited advertising, chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling.
- Containing or installing any viruses, worms, malware, trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of a third person.
- Infringing on any proprietary rights of any party, including patent, trademark, trade secret, copyright, right of publicity or other rights.
- Impersonating any person or entity including the ALTRES Foundation and its employees or representatives.
- Violating the privacy of any third person.
- False information and features.
The ALTRES Foundation reserves the right, but not the obligation, to, in its sole discretion, determine whether or not any information or content is appropriate and complies with this agreement and may, in its sole, exclusive, and unreviewable discretion, refuse or remove objectionable information or content. The ALTRES Foundation can also limit or revoke the use of the WELLNESS SCREENING APPLICATION if You load, program, or transmi such objectionable information or content. You understand that by using the WELLNESS SCREENING APPLICATION You and/or your employees may be exposed to information or content that You and/or your employees may find offensive, indecent, incorrect or objectionable, and You agree that under no circumstances will the ALTRES Foundation be liable in any way for any information or content, including any errors or omissions in any information or content, or any loss or damage of any kind incurred as a result of your use of any information or content in the WELLNESS SCREENING APPLICATION.
14. General Provisions.
14.1 Governing Law, Jurisdiction and Venue.
(a) You and we agree that, except to the extent governed by the United States Trademark Act of 1946 (Lanham Act; 15 U.S.C. ¶ 1050 et seq.), as amended, this Agreement will be governed by the laws of the State of Hawaii without recourse to Hawaii choice of law or conflicts of law principles. Nothing in this Section is intended to invoke the application of any franchise, business opportunity, antitrust, "implied covenant," unfair competition, fiduciary or any other doctrine of law of the State of Hawaii or any other state that would not otherwise apply absent this Subsection 13.1(a).
(b) You and we agree any action brought pursuant to this Agreement or the relationship between you and the ALTRES Foundation must be brought in the U.S. District Court for the District of Hawaii, in Honolulu, Hawaii, or if that court lacks subject matter jurisdiction, then in a court of competent jurisdiction whose jurisdiction includes the City and County of Honolulu, the County of Maui, the County of Kauai, or the County of Hawaii. You consent to personal jurisdiction and venue in each of these jurisdictions and waive, and agree not to assert, move or otherwise claim the venue in any of these jurisdictions is for any reason improper, inconvenient, prejudicial or otherwise inappropriate.
14.2 Severability and Interpretation; No Waiver. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court of competent jurisdiction, the validity and enforceability of the other provisions will not be affected thereby. Failure by us or you to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are for convenience only and are not part of this Agreement.
14.3 Your Obligations Upon Termination. Upon termination of your right to use the WELLNESS SCREENING APPLICATION you must (i) immediately cease such access and use and (ii) promptly, but in not less than 5 days, destroy all materials you copied or otherwise obtained from the WELLNESS SCREENING APPLICATION, whether you copied or obtained them under the terms of this Agreement or otherwise.
14.4 Survival. Notwithstanding the termination of this Agreement or any of your rights under this Agreement, you acknowledge and agree that those rights and obligations which by their nature are intended to survive the termination of this Agreement in order to be fully operative will survive such termination of this Agreement.
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