“WHENTOTEST.ORG” (“SOFTWARE MODEL”)

EXCEL-Based Software Modeling Tool to Assist in Planning To Reduce the Spread of Covid-19 within an Organization referred to as “WhenToTest” (“Software Model”)

End User License Agreement (“EULA”)

This EULA is a contract between The General Hospital Corporation, Inc., d/b/a Massachusetts General Hospital (“MGH”), the Massachusetts Institute of Technology and its affiliates (“MIT”) and you, each a “Party”, and collectively the “Parties”, and provides you with a license to use the MGH/MIT software modeling tool to assess an organization’s COVID-19 testing options referred to as WhenToTest (the “Software Model”) subject to the terms and conditions set forth below.  

This EULA governs your use of the Software Model. If you are agreeing to this EULA on behalf of a company or other entity, you represent that you have the authority to agree to the terms and conditions of this EULA on behalf of such entity, and that such entity hereby agrees to be bound by these terms.  By accessing the Software Model, you are agreeing to this EULA.  If you do not agree to this EULA, MGH and MIT will not and do not license the Software Model to you and you must not access the Software Model.

Please note that the Software Model is intended to be used for non-commercial research, informational and educational purposes; it is NOT made available here for any commercial or clinical use.    MGH and MIT cannot and do not assume any responsibility for the Software Model made available for use under this EULA.

IMPORTANT – Please Read Carefully:

1. License to Use the Software Model.

Subject to the terms of this EULA, MGH and MIT hereby grant to you, the “Licensee,” a royalty-free, non-exclusive, non-transferable, revocable license to access and use the Software Model for non-commercial research, academic, and/or evaluation purposes only.  No right to sublicense or assign this license to others is granted herein.

2. Term.

The term of this EULA shall begin upon your acceptance of the terms set forth herein.  You may terminate this EULA at any time by discontinuing your use of the Software Model.  Either MGH or MIT may terminate this EULA at any time by denying access to the Software Model.

3. Use Limitations and Acknowledgements.

THE SOFTWARE MODEL HAS NOT BEEN REVIEWED OR APPROVED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION OR ANY OTHER AGENCY.  THE SOFTWARE MODEL MUST NOT BE USED TO MAKE A CLINICAL DIAGNOSIS OR REPLACE OR OVERRULE A LICENSED HEALTH CARE PROFESSIONAL’S JUDGMENT OR CLINICAL DIAGNOSIS, OR AS THE SOLE MEANS OF TRACKING INFORMATION RELATED TO A PATIENT. THE SOFTWARE MODEL MAY BE USED ONLY FOR NON-COMMERCIAL RESEARCH, INFORMATIONAL AND EDUCATIONAL PURPOSES.

YOU acknowledge that, whether caused by computer error, human error, or because of some other reason, results, reports, and other information may be miss-delivered or undelivered and/or include incorrect data.  YOU UNDERSTAND AND AGREE THAT YOU MUST REVIEW AND VERIFY INFORMATION OBTAINED VIA THE SOFTWARE MODEL TO ENSURE THAT THE INFORMATION IS ACCURATE AND COMPLETE. YOU ACKNOWLEDGE THAT THE MODEL IS IN RESEARCH PHASE AND ALL OUTCOMES FROM USE OF THE MODEL ARE NOT KNOWN.  YOU ACKNOWLEDGE THAT YOUR USE OF THE MODEL IS AT YOUR OWN RISK.

You may not copy or distribute the Software Model in any form.  You may not rent, lend, lease, sell, resell, license or otherwise transfer for value, the Software Model.  You are not authorized to give others access to the Software Model.  You agree not to reverse engineer, decompile, disassemble, or attempt to derive the source code or equivalent of the Software Model.  You agree not to remove or obscure any copyright notices or other attribution on or in the Software Model.

You also agree that the Software Model shall not be used as the basis of a commercial software or hardware product, or incorporated into a commercial product, and that the Software Model shall not be rewritten in another computer language or otherwise adapted to circumvent the need for obtaining a license from MGH and MIT for use of the Software Model.

Your use of the Software Model may also require use of other software, or patent rights. You are responsible for securing any additional software and licenses you may need.

You warrant that you will comply in all material respects with all applicable federal, state and local laws, rules and regulations governing your use of the Software Model including, but not limited to, the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, Pub. Law No. 111-5, the Federal Food, Drug, and Cosmetic Act, and their implementing regulations; in each case as amended from time to time.

4. Disclaimer of Warranties.

TO THE FULLEST EXTENT PERMITTED BY LAW, MGH and MIT PROVIDE THE SOFTWARE MODEL AND CONTENT ON THE SITE “AS IS” BASIS AND WITH ALL FAULTS, ERRORS AND DEFECTS, AND NEITHER MGH NOR MIT NOR ANY OF THEIR RESPECTIVE PERSONNEL NOR ANY OF THEIR RESPECTIVE AFFILIATES ARE RESPONSIBLE FOR ENSURING THAT ANY IMPLEMENTATION OF THE SOFTWARE MODEL OR SITE CONTENT WILL BE CLINICALLY SOUND, OPERATE WITHOUT ERROR OR INTERRUPTION, OR OTHERWISE BE SUCCESSFUL. THE RIGHTS GRANTED IN THIS EULA ARE MADE AVAILABLE WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (A) NEITHER MGH NOR MIT IS RESPONSIBLE FOR ANY HEALTH PROBLEMS, INJURIES OR DEATH THAT MAY RESULT FROM YOUR USE OF, AND/OR RELIANCE UPON, THE SOFTWARE MODEL; (B)  USE OF THE SOFTWARE MODEL WILL NOT REPLACE EXPERT DECISION-MAKING BY THE INSTITUTION CONCERNING MATTERS RELATED TO THE SUBJECT MATTER OF THE SOFTWARE MODEL; AND (C) YOU WILL COMPLY WITH ALL LAWS AND GOVERNMENTAL RULES, REGULATIONS AND GUIDELINES, INCLUDING ANY SAFETY PRECAUTIONS, THAT ARE APPLICABLE TO THE MODEL AND RELATED CONSIDERATIONS CONCERNING COVID-19.  IT IS UNDERSTOOD THAT NEITHER MGH NOR MIT IS PROVIDING MEDICAL OR OTHER HEALTH-RELATED ADVICE THROUGH THE SOFTWARE MODEL.  

5. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY LAW, MGH OR MIT OR THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE TRUSTEES, DIRECTORS, OFFICERS, FACULTY, STUDENTS, MEDICAL OR PROFESSIONAL STAFF, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE TO YOU OR RESPONSIBLE TO YOU OR ANY OF YOUR REPRESENTATIVES FOR, OR INDEMNIFY YOU, OR YOUR REPRESENTATIVES OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, DATA OR GOODWILL) ARISING IN CONNECTION WITH YOUR USE OF THE SOFTWARE MODEL OR THE LICENSE OR RIGHTS GRANTED UNDER THIS EULA, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Indemnification and Hold Harmless.

To the fullest extent permitted by law, You agree to indemnify, defend, and hold harmless MGH and MIT and their respective affiliates, trustees, officers, employees, staff members, directors, faculty, students, medical and professional staff, employees, and agents and their respective successors, heirs and assigns or contractors, (the “Indemnitees”), from and against any claim, charge, demand, action or suit, whether in contract, tort, strict liability, negligence or otherwise, for any and all losses, costs, charges, claims, demands, fees, (including reasonable attorneys’ fees and expenses of litigation), and other liabilities expenses or damages of any nature or kind arising out of, (collectively, “Losses”) connected with or resulting from (i) the use of the Software Model by you, your affiliates, employees, staff, faculty, students, agents or any other individual you permit to access the Software, or (ii) your failure to comply with applicable laws and regulations, or (iii) Your breach of your obligations under this EULA.  Neither MGH nor MIT nor you shall settle any Loss without the prior written consent of the other parties, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, if You are a federal or state agency or department this indemnification obligation may not be applicable to You, consistent with applicable law.

In consideration of MGH and MIT providing access to the Software Model free of charge, you agree not to bring any claim, lawsuit, or action for any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys’ fees) against MGH or MIT or their respective affiliates, trustees, directors, officers, faculty, students, medical and professional staff, employees, staff members, agents or contractors arising out of or related to your use of the Software Model.

7. Collection and Use of Information.

You acknowledge that MGH and MIT may, directly or indirectly through the services of third parties, collect and store information related to the use of the Software Model and about equipment through which it is accessed and used.  You agree that MGH and MIT may use such information for any purpose related to the use of the Software Model including, but not limited to, improving the performance of the Software Model, verifying Your compliance with the terms of this EULA, and enforcing MGH and MIT’s right, including all intellectual property rights in and to the Software Model. 

8. S. Government Rights. 

The license granted under this EULA is subject to the rights, conditions and limitations imposed by U.S. law including without limitation 35 U.S.C. § 202 et seq. and regulations pertaining thereto, the N.I.H. Grants Policy Statement, and the N.I.H. Guidelines for Obtaining and Disseminating Biomedical Research Resources.

9. Additional Terms.

If any of the terms or conditions contained herein is invalid or unenforceable under applicable law, the remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.

No waiver by MGH or MIT of any right under this EULA will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time.

A printed version of this EULA and of any related notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

All rights not expressly granted herein are hereby reserved.

10. Entire Agreement

This EULA sets forth all of the covenants, provisions, agreements, conditions, and understandings between the parties regarding the subject matter herein, and there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them other than those set forth herein.