This Agreement was last updated on July 1, 2011.
1. Ratings and Conduct
a. This website provides you, among other things, with access to the results of the Leapfrog Hospital Ratings (the “Ratings”) or hospital-specific summary-level results (the “Data”), which have been derived from the Leapfrog Group’s (“Leapfrog”) Hospital Survey (the “Survey”). You may be granted access to this information as a consumer who has access to view only the results of the Ratings You agree to use the website and its contents solely in accordance with this Agreement You agree not to interrupt, or attempt to interrupt, the operation of the website or any part of it in any way.
2. Intellectual Property Rights
a. As between you and Leapfrog, the Ratings, Data, and all Intellectual Property Rights (defined below) therein are owned by Leapfrog. Users must not reproduce, republish, distribute, modify, reverse engineer or otherwise exploit the Ratings or Data in whole or in part, in any manner not expressly permitted by this Agreement o and must not remove or modify any copyright or trademark notice, or other notice of ownership. As between you and Leapfrog, Leapfrog will retain exclusive ownership of the Ratings, Data, and the ideas embodied therein, and if as a consumer you make any modification of the Ratings or Data in violation of this Agreement, you will, and hereby do, assign to Leapfrog all of your rights, title, and interest in and to such modifications and all Intellectual Property Rights therein. You acknowledge that the Ratings and Data constitute the proprietary trade secrets of Leapfrog. Users may not allow anyone other than themselves to access or use the Ratings and must not repost, retransmit or otherwise distribute the Ratings to any party. Licensees may not allow anyone other than primary users and replacements for primary users to access or use the Data.
b. All rights not explicitly granted to Users and licensees under this Agreement will remain with Leapfrog. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to Intellectual Property Rights of Leapfrog, whether by estoppel, implication, or otherwise.
c. “Intellectual Property Rights” means all intellectual property rights of any kind or nature however denominated throughout the world, including, without limitation all copyrights, patents, patent applications, trade secrets, inventions, proprietary know-how, registered and unregistered trademarks, registered and unregistered service marks, domain names, registered and unregistered trade names, rights of privacy and publicity, moral rights, and database rights.
3. Confidential and Proprietary Information
This website may disclose information, materials, and data that Leapfrog considers confidential or proprietary. Such information, materials, and data include, but are not limited to the Ratings, Data, any other data held to be confidential or proprietary (the “Confidential and Proprietary Information”). “Confidential and Proprietary Information” does not include any information which you can show through documentary evidence (i) was generally available to the public from a source other than Leapfrog; (ii) becomes known to you through a third party under no obligation of confidentiality; (iii) is required to be disclosed by law, or court or government order. You agree that you will maintain the Confidential and Proprietary Information as confidential and will not copy, disclose to third parties, nor use the Confidential and Proprietary Information for any purpose other than as explicitly allowed in this Agreement.
4. Term and Access
This Agreement takes effect on the date you first access or use the Ratings. Leapfrog reserves the right at any time in its sole discretion to terminate your access to the Ratings, with or without notice. Upon such termination for any reason, you will cease access to the Ratings and all of your rights herein will cease and at the request of Leapfrog you will return or destroy all copies of any such content, including Confidential and Proprietary Information, in your possession and certify in writing to Leapfrog that you have done so. Rights and obligations under this Agreement which by their nature are intended to survive the termination of your authorization to use the Ratings will remain in full effect after such termination, including without limitation those of Sections 2, 4, 6, 8, and 9.
You agree to indemnify and hold each of Leapfrog and an agent appointed by Leapfrog to pursue and enforce its rights and to undertake and fulfill its obligations under this Agreement (“Agent”) and their respective affiliates and the respective directors, officers, employees, successors and agents of Leapfrog and Agent and their respective affiliates (collectively, “Indemnitee(s)”) harmless from and against any and all liabilities, damages, demands, claims, causes of action, fines or penalties (including, without limitation, court costs and reasonable attorneys’ fees) arising out of or related to the failure of you to fulfill any of your obligations under this Agreement
6. Disclaimer of Warranties
LEAPFROG WARRANTS THAT HOSPITALS PROVIDE THE DATA VIA THE SECURE WEB-BASED SURVEY WITH THE KNOWLEDGE THAT THE DATA AND RATINGS WILL BE SHARED WITH THIRD PARTIES AND THAT THERE IS A FEE ASSOCIATED WITH THE USE OF THE DATA BY LICENSEES. NEITHER LEAPFROG NOR ITS AGENT WILL HAVE ANY RESPONSIBILITY AND WILL BEAR NO LIABILITY WHATSOEVER WITH REGARD TO REPLACING, UPLOADING, OR CORRECTING ANY DATA OR RATINGS ONCE RELEASED. YOU ACKNOWLEDGE AND AGREE THAT, SINCE THE DATA AND RATINGS ARE BASED ON INFORMATION PROVIDED BY THIRD PARTIES, IT IS REASONABLE THAT THE DATA, RATINGS, AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT BE, AND THEY ARE, AS IS, AS AVAILABLE AND WITH ALL FAULTS. LEAPFROG AND ITS AGENT DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR ARISING OUT OF ANY COURSE OF DEALING.
The Data and Ratings are not intended to be the only or primary means for your evaluation of the quality of hospitals and are not intended to be a substitute for professional medical advice, diagnosis or treatment, nor are they intended to be relied upon as advice or a recommendation, or an endorsement about which hospitals to use. You are solely responsible for any and all decisions or actions with respect to your medical treatment. Neither Leapfrog nor its affiliates are responsible for the quality of the medical treatment that you receive from any healthcare provider. Never disregard, avoid or delay in obtaining medical advice from your doctor or other healthcare professional because of something you have read on the website.
7. Limitation of Liability
TO THE FULL EXTENT PERMITTED BY LAW, LEAPFROG IS NOT LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, OR PROFIT) ARISING OUT OF OR IN CONNECTION WITH A CONSUMER’S USE OF THE RATINGS, EVEN IF LEAPFROG HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN CONTRACT OR IN TORT.
To the extent that any jurisdiction does not allow the exclusion or limitation of indirect, incidental or consequential damages, portions of the above limitation or exclusion may not apply.
8. General Terms
a. Any express waiver or failure to exercise promptly any right under this Agreement in any particular circumstance does not constitute a waiver of its right to enforce this Agreement in any other circumstance, in any similar circumstance, or in any continuation or repetition of the circumstance in connection with which it has not previously enforced its right. If any part, term, or provision of this Agreement will be held void, illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions will not be affected hereby.
b. This Agreement, the rights and obligations hereunder, and any claims or disputes relating thereto, will be governed by and construed in accordance with the laws of the District of Columbia without regard to the principles of conflicts of laws. Any claim, suit or action arising under or relating to this Agreement may be brought only in courts located within the District of Columbia. The parties hereby agree that such courts will have exclusive personal and subject matter jurisdiction over any such claim, suit, or action. YOU WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR TO BE DELIVERED IN CONNECTION WITH THIS AGREEMENT OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY ACTION WILL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
c. This Agreement constitutes the entire agreement between you and Leapfrog relating to this subject matter, and cancels and supersedes any prior versions of this Agreement. No modification to this Agreement will be binding, unless in writing and signed by an authorized Leapfrog representative. You may not assign, sublicense, delegate or otherwise transfer this Agreement or any right granted hereunder.