ViewMedica Integrated Terms of Service



THIS LICENSE AGREEMENT ("Agreement"), effective upon the earliest date of either your acceptance of this agreement and our receipt of payment or first use of the ViewMedica video content ("Effective Date"), by and between ViewMedica’s Publisher SWARM INTERACTIVE, INC. a Florida corporation ("Licensor"); and you ("Licensee"). Licensor or Licensee may be referred to singly as a "Party" or together as the “Parties."


Licensor desires to grant limited commercial use rights to Licensee for certain medical video content owned by Licensor (the "Licensed Products" as defined more fully below); and Licensee desires to obtain commercial use rights from Licensor for the Licensed Products upon the terms and conditions set forth in this Agreement.


NOW, THEREFORE, in consideration of their mutual promises and other good and valuable consideration; the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. License.

(a) Subject to the terms and conditions of this Agreement, and during the "Term" (as defined below) only, Licensor grants to Licensee a non-exclusive, non-transferable, limited right and license to display, use and perform the Licensed Products solely as permitted herein, (i) in "Authorized Facilities" within Licensee's "Network" (as such terms are defined below).

(b) "Network" means a private narrowcast network of TV screens, video monitors or smart device screens operated by Licensee within an Authorized Facility. "Authorized Facility" means a medical practice, hospital or clinic that during all relevant time periods, has executed and is bound by License's contract for provision of narrowcast network operation and programming services, including an agreement to pay Licensor a content use fee. "Networks" and "Authorized Facilities" shall mean more than one Network or Authorized Facility.

(c) All rights in any Licensed Products furnished by Licensor, or used by Licensee at Licensee's request in connection with any Network, including the copyrights and the right to secure copyrights, shall be Licensor's property throughout the universe and in perpetuity. Licensee shall not, under any circumstance, (i) attempt to pledge, mortgage or otherwise encumber (A) the Licensed Products or any other tangible or intangible property of Licensor provided to Licensee pursuant to this Agreement or (B) any of Licensor's rights under this Agreement or (ii) attack or challenge the validity of any of Licensor's or its licensor's copyrights, patents, trademarks or other intellectual property rights or licenses.

(d) Licensee's rights hereunder are non-exclusive, non-transferable, non-sublicensable and non-delegable and Licensee acknowledges that: (i) all of the rights granted herein are granted on a non-exclusive basis; and (ii) Licensor reserves all rights to use, and authorize third parties to use, any or all of the Licensed Products.

(e) No different, other or further license is intended or granted by this Agreement, and this is not an assignment by Licensor of any right, title or interest in the Licensed Products to Licensee.

2. Licensed Products.

(a) "Licensed Products" or “Videos” shall mean the videos, offered by Licensor or a Licensor-approved Distributer under Licensor’s “ViewMedica" brand to the medical marketplace. The Licensed Products are licensed not sold, and Licensor reserves all rights not expressly granted to you in this Agreement. The Licensed Products are protected by copyright, trade secret and other intellectual property laws. The Licensor and its licensors, where applicable, own all right, title and interest in and to the Licensed Products (and all intellectual property rights therein), including but not limited to its technology, content, derivatives, and modifications of the Licensed Products by whomever made. We do not grant any license or other authorization to any user of its branding, trademarks, service marks, or other copyrightable material or other intellectual property.

(b) Licensed Products shall be provided to Licensee by Licensor as high quality video at a resolution of no less than 1280 × 720 pixels in a compression format compatible with the Licensee's Network.

(c) Licensee shall only use the Licensed Products in an unaltered form. Licensee represents and warrants that Licensee shall not directly or indirectly allow any of the Licensed Products to be edited, altered or otherwise modified, either in whole or in part, directly or indirectly. Notwithstanding the foregoing, Licensee is allowed to wrap other information around Licensed Products on the same video screen at the time Licensed Products are being shown. Under no circumstances, however, shall Licensee modify or delete, or per others to modify or delete Licensor's proprietary rights notices as contained within the Licensed Products.

(d) The Authorized Facility where the Network is installed shall be allowed to store Licensed Products on servers or devices under Facility or Distributer control to display the Licensed Products on the Facility’s Network.

(e) The Licensed Products may be displayed on the Authorized Facility’s intranet and or patient portal site as long as access to those sites by the public requires a login. Nothing in this Agreement shall permit Authorized Facilities to use the Licensed Products on public-facing websites operated by the facility or on their behalf. In the event an Authorized Facility wishes to use the Licensed Products on a public website, Licensee may be required to pay a separate fee to license the content for its Site.

(f) Once you select Videos and pay for your Licensed Products, you may not remove those Videos from your selection list until 30 days before the end of each Annual Period of your Term without Licensor’s approval.

3. Streaming Service.

You may be offered access to the Licensor’s Streaming service. By accepting this Agreement and using either the On-Demand or VMcast streaming services, you also agree to the separate ViewMedica Streaming Terms of Service Agreement found on the Licensor’s website.

4. Representations and Warranties.

(a) Licensee represents, warrants and covenants that each of the following is true and shall remain true at all times during the Term:

(i) Licensee has the right and power to enter into and fully perform this Agreement and to make the commitments Licensee makes herein.

(ii) Licensee is fully-qualified to perform all obligations as described herein and to maintain and operate the Networks as described herein.

(iii) The Networks, and the operation and use thereof for the purposes described herein, shall not, and at no time shall during the Term, violate any law (including, without limitation, any federal law or regulation) or to Licensee's knowledge, infringe upon or violate the rights of any third party, including, without limitation, any trademarks, names, logos, patents, trade secrets, copyrights, materials or other content Licensee creates, licenses, uses, publishes, performs, reproduces, distributes, displays or sells (other than the Licensed Products or other materials furnished to Licensee by Licensor hereunder).

(iv) Licensee is a corporation duly organized and in good standing.

(v) The Networks shall not contain or utilize any content or other materials not otherwise furnished by Licensor that Licensor reasonably deems patently offensive or which, in the judgment of its attorneys, might subject Licensor or Licensee to unfavorable regulatory action. The Networks shall not contain or utilize any content or other materials not otherwise furnished by Licensor that could be construed by a reasonable person as tending to disparage, ridicule, insult, deride, embarrass, humiliate, taunt or disgrace the reputation or good will of Licensor.

(vi) Licensee shall not enter into any agreement whatsoever on behalf of Licensor, shall not make any representations or warranties on behalf of Licensor, and shall not represent to any person that it has the power, whether express or implied, to bind Licensor in any way or enter into contracts on Licensor's behalf.

(vii) Licensee shall not make any use of any Licensed Products, or authorize any third party to make any use of any Licensed Products, except as specifically permitted pursuant to the express terms of this Agreement. Licensee's use of any Licensed Products other than as specifically permitted pursuant to the express terms of this Agreement shall be subject to Licensor's right of prior review and written approval in every such instance. For the avoidance of doubt, and without limiting any of the foregoing, in no event at any time during the Term shall Licensee use any Licensed Products, or authorize any third party to make any use of any Licensed Products on any website or other online service except as otherwise expressly permitted in this Agreement.

(viii) Licensee will not make or facilitate the making of any reproductions or copies of any Licensed Products except to the extent expressly permitted in this Agreement.

(ix) Except as provided in Article 2(c), Licensee shall not cut, edit, change, add to, delete from or revise any Licensed Products (or authorize any person to do any of the foregoing) without the express prior written consent of Licensor in each instance. Without limiting the scope of the foregoing, Licensee expressly agrees that it will not alter or delete any title, credit or copyright notice, any trademarks or service marks, or the talent, writing, producing, directing or other credits contained in the Licensed Products.

(x) Licensee will not, directly or indirectly, sell or otherwise dispose of, pledge, mortgage or in any other way encumber any of the Licensed Products.

(xi) Licensee shall not allow any person other than persons in Authorized Facilities to access the Networks.

(xii) Licensed Products shall not be exhibited, performed or displayed, as the case may be, in a manner that could be construed by a reasonable person as an endorsement of any product, service or person, as so-called "commercial tie-up" or "commercial tie-in" or any similar use, directly or indirectly, in whole or in part without the prior written consent of Licensor in each instance, which consent Licensor may withhold in its sole, unrestricted discretion in each instance.

(xiii) Licensor shall not be subject to any costs, fees, royalties or other charges in respect of Licensee's use of the Licensed Products hereunder and/or the operation of any Network in connection therewith or otherwise (including, without limitation, any mechanical royalties, synchronization royalties or any fees or royalties payable in respect of the performance or reproduction of any composition and any other dramatic, literary or other works embodied in a Licensed Product).

(xiv) Licensee will not publicly perform or otherwise make available any Licensed Products hereunder via any machines or devices other than in Networks located in Authorized Facilities.

(xv) Licensee shall use best efforts to ensure the security of all Licensed Products incorporated and/or transmitted by the Networks, and that in connection with such efforts it shall make use of current, effective and so-called "state of the art" encryption and anti-piracy technologies. Each of the security features utilized by Licensee shall at all times be of the highest technical standards and functionality, and shall at all times utilize systems which are considered the so-called "state-of-the-art" within its industry in the U.S.

(xvi) Licensee shall be solely responsible for creating, maintaining, distributing and servicing the Networks and the Authorized Facilities. Except as expressly set forth herein, as between Licensor and Licensee, Licensee hereby assumes all liability which may arise from products and services (including, without limitation, all Networks) as the case may be, rendered to customers and end users and liability for injuries to and by servants, agents, employees or the general public in connection with operation of the Networks. Except as expressly set forth herein, all business risks related to the Networks shall be borne solely by Licensee.

(b) Licensor represents, warrants and covenants that each of the following is true and shall remain true at all times during the Term:

(i) Licensor has the right, power and authority to enter into and fully perform this Agreement and to make the commitments that Licensor makes herein.

(ii) The use of the Licensed Products as furnished by Licensor for the purposes and in the manner expressly set forth herein and in accordance with the terms of this Agreement will not violate or infringe the rights of any third parties.

(c) THE LICENSED PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. You expressly acknowledge and agree that use of Licensed Products is at your own risk. We do not warrant that the functions contained in the Products will meet your requirements or operate in the combination that you may select for use. Any warranties that by law survive the foregoing disclaimers shall terminate ninety (90) days from the date you first access or use the Services.

5. Term; Termination.

The "Term" of this Agreement shall commence as of the Effective Date, and continue for three (3) years from the Effective Date or three (3) years from any promotional period offered at the start of the service. The Term is divided into three Annual Periods. At the end of each Term, the Term shall automatically renew for an additional three (3) year period unless terminated by either Party as set forth herein.

(b) Licensor shall be entitled to terminate this Agreement immediately upon written notice to Licensee if Licensee becomes insolvent, admits in writing its inability to pay debts as they mature, institutes or has instituted against it any bankruptcy, reorganization, debt arrangement, assignment for the benefit of creditors, or other proceeding under any bankruptcy or insolvency law or dissolution, receivership, or liquidation proceeding (and, if such proceeding is instituted against it, such proceeding is not dismissed within sixty (60) days).

(c) Either Party shall be entitled to terminate this Agreement immediately upon written notice to the other Party, if the other Party materially breaches in any manner the terms of this Agreement. If the allegedly breaching Party fails to remedy such breach within thirty (30) days after such notice, termination shall occur as of the 31st day.

(d) Notwithstanding the foregoing or anything elsewhere herein, Licensor may, at its sole election, require Licensee to cease using any Licensed Products upon forty-eight (48) hours' notice to Licensee (which notice, notwithstanding anything to the contrary herein, may be delivered via facsimile, electronic mail or any other effective method of written communication) (each, a "Take-Down Notice"). Within two (2) business days following Licensee's receipt of such Take-Down Notice, Licensee shall immediately cease to use the applicable items of Licensed Products on or in connection with the Networks. The Parties acknowledge that the purpose of this provision is to defend and protect Licensor's valuable rights in the Licensed Products, and not to otherwise frustrate the purpose of this Agreement or deny Licensee the benefit of the license granted herein under circumstances in which Licensee is without fault or negligence.

(e) Either Party may prevent automatic renewal by giving thirty (30) days or more notice prior to the end of the then-current Term to the other Party of its decision not to renew. The Term shall then expire at the end of the current Term.

(f) Upon termination or expiration of the Term without renewal: (i) all rights granted to Licensee herein shall immediately terminate; (ii) Licensee shall not thereafter have any right to make any use of any Licensed Products; (iii) Licensee shall immediately cease to use the computer files, digital media or software embodying the Licensed Products; (iv) Licensee shall, as instructed by Licensor, return, delete or destroy all Licensed Products delivered to Licensee hereunder promptly upon Licensor's request, in Licensor's sole discretion, and Licensee shall furnish Licensor with a detailed affidavit, in a form satisfactory to Licensor in its sole reasonable discretion, executed by an officer of Licensee evidencing the disposition of each item deleted or destroyed; and (v) all monies then due or to become due to Licensor shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Licensee.

(g) Termination or expiration of this Agreement for any reason shall not affect obligations that: (i) have accrued as of the date of termination or expiration; (ii) arise out of occurrences prior to the termination or expiration date; (iii) become effective upon termination or expiration; or (iv) by their terms continue after termination or expiration.

6. Fees & Taxes.

All payments of Licensing Fees to Licensor under this Agreement shall be made in U.S. dollars by credit card payment, check, wire transfer or ACH to Licensor's account as instructed by Licensor, and shall be made in full by Licensee without any offset or deduction. Non-payment of Licensing Fees is a material breach of this agreement.

(b) Licensing Fees are based on your Video selections and paid annually during the Term. Licensee shall pay Licensor the Licensing Fees for the first Annual Period of service before service begins and subsequent annual payments are made before each Annual Period begins.

(c) Licensee shall pay or reimburse Licensor for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Licensor under this Agreement; excluding, however, income taxes on profits which may be levied against Licensor.

(d) If You cancel this service within the first thirty (30) days after purchase of this service and before any files are delivered, You will receive a 100% refund of the Licensing Fees for the service. If You cancel after the first thirty (30) days from purchase of this service or after any files have been delivered, you will not receive any refund, you are still obligated to pay Licensing Fees for all remaining Annual Periods in the Term as they become due, and (forgoing a material breach) you may continue to use the service until your Term expires.

7. Audits.

(a) Upon reasonable notice to Licensee, during the Term and for a period of three (3) years after expiration or termination of this Agreement, Licensor will have the right, at its own expense, to conduct technical audits of the Licensee and the Networks for the purpose of observing and verifying the storage, hosting, security, serving, delivery and other use of the Licensed Products, including, for the avoidance of doubt and without limitation, all hardware and software components and systems utilized by Licensee and its designees that operate or distribute the Networks including server logs, and all documentation setting forth policies and procedures with respect to security features and formats, wherever any such hardware and software components and systems and documentation are maintained or stored, as applicable, including, without limitation, any and all data centers and information technology departments performing services or operations in connection with or on behalf of the Networks.

(b) Any such audit: (i) shall be conducted during normal business hours and in a manner designed to not unreasonably interfere with Licensee's ordinary business operations; (ii) may not occur more frequently than once every twelve (12) months, unless an audit shows a material discrepancy, then no more frequently than once every six (6) months until such time as the results of an audit no longer show a material discrepancy; and (iii) may only cover the period commencing after the period covered by the last audit conducted pursuant to this Article, provided, however, such limitation shall not prevent the review of information related to a prior audit to the extent such information is necessary to conduct a subsequent period audit hereunder.

8. Indemnification.

(a) Licensee agrees to indemnify, defend and hold harmless Licensor, its directors, officers, employees and agents, and to defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that arises from or is related to: (i) a breach of any of Licensee's representations or warranties under this Agreement; (ii) the gross negligence or willful misconduct of Licensee or any of its Authorized Facilities; (iii) any assertion by an Authorized Party that Licensee has breached an agreement or any representation or warranty given by Licensee to such Authorized Facility, and/or (iv) any of the content, goods or services provided by Licensee to any Authorized Facility infringes or violates any rights of third parties, recognized under U.S. or applicable state law including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.

(b) Licensor agrees to indemnify, defend and hold harmless Licensee, its directors, officers, employees and agents, and to defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent such action is based upon a claim that: (i) arises out of the gross negligence or willful misconduct of Licensor; or (ii) any Licensed Product infringes or violates any rights of third parties, recognized under U.S. or applicable state law, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses provided, however, that Licensor shall have no obligation to indemnify Licensee in connection with any infringement or interference to the extent that:

(i) Licensee specified the form, content, or functionality of the Licensed Product whose creation or use is alleged to infringe;

(ii) the infringement or interference arises out of, or in connection with, revisions or modifications of the Licensed Product by Licensee, an Authorized Facility or any third party at the authorized direction of Licensee or such Authorized Facility; or

(iii) the infringement or interference arises out of, or in connection with, the combination, operation or use by Licensee, its Authorized Facility or any third party at the authorized direction of Licensee or such Authorized Facility of the Licensed Products with other programs, data, or specifications if a different combination would avoid the infringement or interference.

The indemnification obligation under Article 8(b)(ii) above is limited to Licensor's choice of (1) procuring for Licensee or its Authorized Facility the right to use the Licensed Product free of any infringement liability; or (2) replacing such Licensed Product with a non-infringing substitute substantially fulfilling the same purpose. THIS INDEMNITY IS LICENSOR'S SOLE LIABILITY AND LICENSEE'S AND ITS AUTHORIZED FACILITY'S SOLE REMEDY FOR INFRINGEMENT OF RIGHTS OF THIRD PARTIES UNDER ARTICLE 8 (b)(ii) ABOVE.

(c) In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party, at its own expense, may assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party's written consent, which shall not be unreasonably withheld, conditioned or delayed.


10. Confidentiality. "Confidential Information" means written or oral information considered proprietary by reasonable persons in the normal course of business according to any applicable industry standards (and including, notwithstanding such standard, information on tangible media conspicuously labeled as "proprietary" or "confidential" or with comparable legend) provided by a Party ("Provider") to another Party ("Recipient") hereunder. No information can be Confidential Information if (1) it is publicly available through no fault of Recipient; (2) Recipient receives such information from a third party who had the right to provide it; (3) Recipient independently develops it or knew it before receiving it hereunder; or (4) Provider discloses it to a third party without restriction. Recipient shall not make any disclosure of the Confidential Information to anyone other than its employees and/or contractors who have a need to know in connection with this Agreement, or as required by law or legal process. Each Party shall notify its employees and/or contractors of their confidentiality obligations with respect to the Confidential Information and shall require its employees and/or contractors to comply with these obligations. The confidentiality obligations of each Party and its employees and/or contractors shall survive the expiration or termination of this Agreement for a period of four (4) years. Except for a mutually agreed upon press release, the terms of this Agreement shall be deemed Confidential Information.

11. Protection of Rights.

(a) Licensee agrees to inform Licensor promptly of any possible infringement, misuse or misappropriation affecting the Licensed Products which comes to the attention of Licensee. Licensee agrees to fully cooperate and assist Licensor in the protection and defense of any of Licensor's rights in the Licensed Products, in the filing and prosecution of any trademark, trade dress, service mark, trade name, copyright, industrial model or design application, registration, renewal and the like, in the recording of this Agreement or any other relevant agreement, and in the doing of any other act with respect to the Licensed Product, including the prevention of the use thereof by any unauthorized person, that in the sole discretion and judgment of Licensor may be necessary or desirable.

(b) Licensor deems the Licensed Products to be extremely valuable assets. Licensor shall have the sole right to determine whether or not any action shall be taken on account of any infringement, passing off or unfair competition activities or other enforcement of Licensor's rights in the Licensed Products. If Licensor so desires it may prosecute any actions, claims, lawsuits or proceedings in its own name or join Licensee as a party thereto, all at Licensor's expense. Licensor shall be entitled to recover any and all sums of money awarded and materials delivered up as a result of such actions, claims, lawsuits or proceedings.

(c) Licensee shall not institute any lawsuit or take any action on account of any actual or alleged infringement, misuse or misappropriation relating to the Licensed Products, and Licensee shall not have any right or claim against Licensor for Licensor's failure to enforce its rights in the Licensed Products or to prosecute any actual or alleged infringement, passing off or unfair competition by others in relation to the Licensed Products.

12. Feedback. We may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its services ("Feedback"). You agree that We may, in our sole discretion, use the Feedback you provide to us in any way, including in future modifications of the Services, Licensed Products and/or advertising, marketing and promotional materials relating thereto. You hereby grant us a perpetual, worldwide, fully transferable, sublicenseable, non-revocable, fully paid-up, royalty free license to use, modify, create derivative works from, distribute, display and otherwise exploit any information you provide to us in the Feedback.

13. General Terms.

(a) This Agreement, and all matters or disputes relating to the validity, construction, performance or enforcement hereof, shall be governed, construed and controlled by and under the laws of the State of North Carolina, U.S.A., without regard to principles of conflicts of law. If this Agreement is translated into another language, the English language text of this Agreement shall control.

(b) This Agreement may be assigned by either Party along with the entire business to which it relates, or to its wholly-owned subsidiaries or its corporate successors by merger, consolidation or other reorganization, provided that the assigning Party gives notice of the same to the other Party, and upon request furnishes the assignee's written assurances that this Agreement is fully binding upon it; otherwise this Agreement shall be considered personal and not assignable by either Party without the written consent of the other Party

(c) All notices, demands and communications provided for or made under this Agreement shall be delivered, or mailed first class with postage prepaid, addressed in each case to the addresses as set forth above, until some other address shall have been designated in a written notice, and shall be deemed to have been given or made when so delivered or mailed.

(d) Licensor and Licensee shall each pay the fees for their respective attorneys and accountants in connection with the negotiation and drafting of this Agreement. Licensee and Licensor shall indemnify the other and hold the other harmless from any other claims of third parties for brokerage commissions, finders' fees and other payments relating to the negotiation or execution of this Agreement.

(e) In the event a Party brings an action at law or in equity against the other Party arising out of or relating to this Agreement concerning the breach, performance, interpretation, collection or any other matter in relation to this Agreement, the prevailing Party shall recover from the other Party, in addition to all other sums that may be due and owing, the reasonable attorneys' fees incurred by the prevailing Party in prosecution or defense of such action.


(g) The waiver of failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.

(h) If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.

(i) The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.

(j) Complete Agreement. This Agreement constitutes the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by a written agreement signed by the Licensor. Licensor may change this Agreement from time to time effective upon posting of the modified Agreement on Licensor’s website. Please review the Agreement periodically on the Licensor’s website for changes. The Licensor has the right to change or add to the terms of this Agreement, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services, including but not limited to, Internet based services, pricing, technical support options, and other product-related policies, at any time upon notice by any means the Licensor determines in its discretion to be reasonable. Your continued use of the Services after Licensor’s publication of any such changes shall constitute your acceptance of this Agreement as modified.

The parties, by the actions of their authorized representatives, have executed this Agreement as of the effective date mentioned above.