This application is for Product Use of the FHIR trademarks. It is intended for when organizations make use of the FHIR trademarks beyond fair use, including in company advertising material, product names, and domain URLs, but not including events. For events, see the Community Use License. Note: if you have questions about how to fill in this license agreement, or about the the FHIR Trademark policy, please contact the FHIR Product Director.
This Product Use License (the “Agreement”) governs the use of Health Level Seven International, Inc.’s (“HL7”) FHIR trademark by “Licensee” (see below), together with HL7, the “Parties”. By clicking the <SUBMIT> button following the Agreement, Licensee agrees, subject to HL7’s acceptance, to be bound by this Agreement with HL7 if HL7 provides to Licensee its written acceptance.
THE PERSON CLICKING THE <SUBMIT> BUTTON BELOW REPRESENTS AND WARRANTS ON BEHALF OF LICENSEE THAT S/HE IS AUTHORIZED TO SIGN CONTRACTS ON BEHALF OF, AND TO THEREBY BIND, LICENSEE.
AFTER YOU CLICK <SUBMIT>, THIS AGREEMENT REMAINS SUBJECT TO HL7’S ACCEPTANCE. NO CONTRACT IS FORMED HEREBY, AND LICENSEE IS NOT AUTHORIZED TO USE THE PROPOSED ALTERNATE USAGE OR THE FHIR MARK PURSUANT TO THIS AGREEMENT UNTIL LICENSEE HAS RECEIVED WRITTEN ACCEPTANCE FROM HL7, THE DATE OF WHICH ACCEPTANCE SHALL BE THE “EFFECTIVE DATE”. HL7 WILL USE REASONABLE EFFORTS TO RESPOND TO THIS REQUEST FOR A LICENSE WITHIN THIRTY (30) DAYS OF THE DATE LICENSEE HAS SUBMITTED ITS REQUEST FOR A LICENSE.
WHEREAS, HL7 owns all right, title, and interest in and to the FHIR trademark, registered with the U.S. Patent & Trademark Office (U.S. Reg. No. 4,272,380) (the “FHIR Mark”); and
WHEREAS, HL7 wishes to grant, and Licensee wishes to receive, a license to the above mark in connection with the Authorized Goods/Services below.
NOW, THEREFORE, for good and sufficient consideration, the receipt of which is acknowledged hereby,the parties agree as follows subject to the terms and conditions attached hereto:
1. License and Trademark Rights
1.1. Subject to the terms of this Agreement, HL7 grants to Licensee the non-exclusive right in the Territory to use the Proposed Alternate Usage (the “Mark”) in connection with the Authorized Goods/Services only (such use a “Licensed Use”). The foregoing license does not include the right to sublicense.
1.2. Licensee shall use the ® symbol after the FHIR Mark at least once on each page of Licensed Use (if applicable) and generally in connection with the first or dominant usage.
1.3. All goodwill arising from or relating to Licensee’s use of the Mark shall inure to the benefit of HL7. To the extent any right, title, or interest to the Mark are deemed to accrue to Licensee pursuant to this Agreement or otherwise, Licensee shall, and hereby does, assign any and all such right, title, and interest (and all goodwill arising from or relating to any of them) to HL7.
1.4. Licensee shall only exercise the license granted herein with Licensed Uses approved by HL7. Licensee shall, promptly upon HL7’s request, deliver to HL7 representative samples of Licensed Uses and shall cease to use any Licensed Uses that do not meet HL7’s approval. Licensee shall not use any unlicensed derivative of the Mark without HL7’s prior written consent and approval.
1.5. Licensee shall make every effort to maintain the highest quality and standards of the Licensed Uses and shall safeguard the established prestige and goodwill in the Mark at the same level of prestige and goodwill previously held and maintained by HL7. Upon request, Licensee shall promptly provide HL7 with information regarding the quality of its performance of the Authorized Goods/Services.
1.6. Licensee agrees and acknowledges that HL7 is the owner of all rights, title and interest in and to the Mark. Licensee shall neither (i) challenge the validity of HL7's ownership of the Mark; nor (ii) contest the fact that Licensee's rights under this Agreement and its right to use the Mark terminates upon termination of this Agreement.
2.1. The initial term of this Agreement will begin on the Effective Date and shall end on first December 31 thereafter. This Agreement shall automatically renew for successive one (1) year terms provided that neither party has provided the other party with notice of termination at least thirty (30) days before the end of the then-current term. Sections 1.4 and 1.7, and Articles 2, 4, and 5 shall survive termination of this Agreement.
2.2. HL7 may terminate this Agreement on Licensee’s breach, which breach remains uncured ten (10) days after written notice thereof. Licensee shall cease and desist all trademark usage of the Mark immediately upon Agreement termination.
3.1. Licensee shall provide prompt written notice to HL7 of any infringement of the Mark by third parties, or any act of unfair competition relating to the Licensed Uses, or any act of unfair competition by third parties relating to the Mark, whenever such infringement or act comes to Licensee's attention.
4. Liability Limitation, Representations and Warranties
4.1. THE MARK IS LICENSED HEREBY "AS IS" WITHOUT WARRANTY, EXPRESS OR IMPLIED OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OF THE MARK REMAINS WITH LICENSEE. LICENSEE ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY EXPRESS OR IMPLIED REPRESENTATION OF DISCREET, WRITTEN OR ORAL, AS AN INDUCEMENT TO ENTERING INTO THIS AGREEMENT.
4.2. IN NO EVENT WILL HL7 BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF HL7 HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
4.3. HL7’S AGGREGATE, CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE MARK OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES IN THE AMOUNT EQUIVALENT TO THE FEES ACTUALLY RECEIVED BY HL7 FROM LICENSEE HEREUNDER. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION APPLY TO ALL CLAIMS OR CAUSES OF ACTION ON WHATEVER BASIS AND UNDER WHATEVER THEORY BROUGHT AND IRRESPECTIVE OF WHETHER HL7 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4.4. Each party represents and warrants that (i) it has the authority to enter into this Agreement and to perform its obligations hereunder; and (ii) to their respective knowledge as of the Effective Date, Licensee’s exercise of the rights granted hereunder shall not violate the rights of any third party, including without limitation, rights in trademark, unfair competition, and contract.
5.1. All reports, communications, requests or notices required by or permitted under this Agreement will be in writing and will be deemed to be duly given on the date same is hand delivered and acknowledged or, if mailed, when mailed by certified or registered mail, return receipt requested, to the party’s addresses identified above. Eitherparty may change the address to which such notices and communication will be sent by written notice to the other party, provided that any notice of change of address will be effective only upon receipt. Notwithstanding anything to this Section 5.1 to the contrary, Licensee shall send a contemporaneous copy of any and all written communication to HL7 hereunder to email@example.com or such other email address as HL7 shall from time to time direct.
5.2. This Agreement may be assigned by Licensee only with the prior written consent of HL7. HL7 may assign this Agreement without restriction. Any attempted assignment in contravention of this Section 5.2 will be null, void, and without effect.
5.3. This Agreement will be governed by and construed in accordance with the laws of the State of Michigan, without regard to its choice of law provisions. The parties shall file and prosecute any and all litigation arising from or relating to the Mark or this Agreement before any court of competent subject matter jurisdiction in the Eastern District of Michigan. The parties hereto consent to the exclusive jurisdiction of such courts over them, stipulate to the convenience, efficiency and fairness of proceeding in such courts, and covenant not to allege or assert the inconvenience, inefficiency, or unfairness of proceeding in such courts.
5.4. This Agreement does not create a partnership or joint venture between the parties.
5.5. This Agreement is formed by Licensee’s clicking on the >SUBMIT< button provided at http://www.fhir.org/product-license and by HL7’s subsequent written acceptance, delivered to Licensee.
5.6. This Agreement constitutes the entire agreement between Licensee and HL7 with respect to the subject matter contained herein, and supersedes and terminates any prior agreements, proposals or understandings relating to such subject matter. No addendum, consent, modification, amendment or change of the terms of this Agreement will bind either party unless made in writing and signed by the parties.
5.7. No waiver by either party of any breach hereunder shall be effective unless given in writing, nor shall any such waiver be deemed a waiver of any other breach.
5.8. In the event of any litigation regarding this Agreement, HL7, in the event it is the prevailing party as determined by the appropriate court, shall be entitled to recover its actual attorneys’ fees and costs arising from or relating to the litigation itself and investigations arising therefrom or relating thereto.
5.9. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or unenforceable, the validity and enforceability of the remaining provisions will not be affected, and invalid or unenforceable provision shall be automatically revised so as to be valid and enforceable and to as nearly as possible reflect the intent of the parties