LICENSED APPLICATION END USER LICENSE AND BUSINESS ASSOCIATE AGREEMENT
This End User License Agreement and HIPAA Business Associate Agreement are by and between You, either an individual or an entity, and Next Paradigm Medical Solutions LLC (“NPMS” or “Licensor”) for the Tribble – Surgeon’s Caselog software product (“Product”) effective on the date on which You agree to the terms by clicking “I Agree”. This license (“License” or “Agreement”) contains rights and restrictions associated with use of the Product downloaded from the Apple App Store. This Product, as subject to the license granted under this License, is referred to herein as the “Licensed Application.” PLEASE READ THE ENTIRE DOCUMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE PRODUCT. BY DOWNLOADING, INSTALLING, OR USING THE PRODUCT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AND BUSINESS ASSOCIATE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE PRODUCT. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND NPMS, AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. The terms of this license will govern any upgrades provided by NPMS that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate or updated license in which case the terms of that license will govern.
A. End User License Agreement
1. Licensor’s Rights. You acknowledge and agree that the Product and any accompanying documentation are proprietary to NPMS and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You acknowledge and agree further that all right, title, interest in and to the Product, including associated intellectual property rights, are and shall remain with NPMS. The Product is licensed, not sold, to You. Accordingly, this License does not convey to You an interest in or to the Product, but only a limited right to use as specified in this Agreement revocable in accordance with the terms of this Agreement. You and NPMS acknowledge that this Agreement is concluded between You and NPMS only, and not with Apple. NPMS, not Apple, is solely responsible for the Product and the content thereof, and only to the extent provided in this Agreement.
2. Scope of License. NPMS grants to You, and You accept, a non-exclusive, non-transferable, non-sublicensable, revocable limited license to run the Licensed Application, only on an Apple-branded iPhone running iOS 8 or above that You own or control and as permitted by the usage rules set forth in the App Store Terms and Conditions (the “Usage Rules”) for the purpose of performing the functions and tasks available to You as an end user of the Licensed Application. You may not reverse assemble, reverse compile, or otherwise translate the Product. This license does not allow You to use the Product on any Apple Device that You do not own or control, and You may not distribute or make the Product available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Product and, if You sell or give Your iPhone to a third party, You must remove the Product from the iPhone before doing so. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Product, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Product). Any attempt to do so is a violation of the rights of the Licensor and its licensors. If You breach this restriction, You may be subject to prosecution and damages. You are not permitted to use the Licensed Application for any purpose other than as expressly permitted under this License. You acknowledge that Licensor may audit Your use of the Licensed Application.
3. Data Collection. You agree that NPMS may collect and use technical data and related information—including but not limited to technical information about Your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to You (if any) related to the Product. NPMS may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You. BY CLICKING ON THE “ACCEPT” BUTTON, YOU EXPRESSLY CONSENT TO THE FOREGOING COLLECTION, STORAGE, PROCESSING, MAINTENANCE, UPLOADING, SYNCING, TRANSMITTING, SHARING, OR DISCLOSURE OF USER DATA. By continuing to use the Licensed Application, You indicate Your continued consent to such collection, storage, processing, maintenance, uploading, syncing, transmitting, sharing, or disclosure of User Data as well as any collection, storage, transmission and use of data of the type and in the manner described in the About box, if any, located within the Licensed Application.
4. Termination. The license is effective until terminated by You or NPMS. Your rights under this license will terminate automatically without notice from NPMS if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Product and destroy all copies, full or partial, of the Product.
5. External Services. The Product may enable access to NPMS and/or third-party services and websites (collectively and individually, “External Services”). Use of the External Services requires Internet access and use of certain External Services requires You to accept additional terms. You understand that by using any of the External Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the External Services at Your sole risk and that NPMS shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable. Location data provided by any External Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. You agree that the External Services may contain proprietary content, information and material that is owned by NPMS and/or its agents or others, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External Services or in any manner that is inconsistent with the terms of this Agreement or that infringes any intellectual property rights of a third party or Apple. To the extent You choose to use or access such External Services, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. You shall not exploit the External Services in any unauthorized way whatsoever, including but not limited to, using the External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither NPMS nor its agents is in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that You may receive as a result of using any of the External Services. In addition, External Services and Third Party Materials that may be accessed from, displayed on or linked to from the Apple Devices are not available in all languages or in all countries or regions. Licensor makes no representation that such External Services and Materials are appropriate or available for use in any particular location. NPMS and third parties reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will NPMS be liable for the removal of or disabling of access to any such External Services. NPMS may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
6. Third-Party Materials. Certain External Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the External Services, You acknowledge and agree that NPMS is responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. NPMS does not assume and will not have any liability or responsibility to You or any other person for any third-party services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You.
7. Trademarks and Logos. This Agreement does not authorize You to use any symbol, term, name, trademark, service mark, design, or logo (“Trademarks”) that NPMS uses to identify NPMS as the source of the product. You acknowledge that the Trademarks remain the exclusive property of NPMS.
8. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT AND ANY SERVICES PERFORMED OR PROVIDED BY THE PRODUCT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NPMS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NPMS DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NPMS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE PRODUCT OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
9. Apple’s Limitations. In the event of any failure of the Product to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Product to You. To the maximum extent of the law, Apple will have no other warranty obligation whatsoever with respect to the Product. In the event of any third party claim that the Product or Your possession and use of the Product infringes that third party’s intellectual property rights Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
10. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL NPMS BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF NPMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall NPMS’s total liability to You for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount paid to NPMS by You for use of the Product. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
11. Indemnification. You agree to indemnify, defend and hold harmless NPMS, its Affiliates and the directors, officers, employees, and agents of any of the foregoing (collectively the “Indemnified Persons”) from and against any and all claims, demands, loss, damage, penalty, cost or expense (including attorneys’ and witnesses’ fees and costs) of any kind or nature, based upon, arising out of, or otherwise relating to this Agreement, including without limitation (i) any claim arising from the use of the Product and all activities associated therewith, or (ii) any use of information provided by NPMS to You. You agree not to sue any Indemnified Person in connection with the use or other disposition of the Product and all activities associated therewith. NPMS shall be entitled to participate at its option and expense through counsel of its own selection, and may join in any legal actions related to any such claims, demands, losses, damages, costs, expenses and penalties. You shall not enter into any settlement affecting any rights or obligations of any Indemnified Person or which includes an express or implied admission of liability, negligence or wrongdoing by any Indemnified Person, without the prior written consent of such Indemnified Person. Apple is not responsible for addressing any claims of the end-user or any third party relating to the Product or the end-user’s possession and/or use of the Product.
12. Export. You may not use or otherwise export or re-export the Product except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Product, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
13. Commercial Items. The Product and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
14. Miscellaneous. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and Your use of the Software. Your use of the Product may also be subject to other local, state, national, or international laws. Should any term of this License be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
15. Maintenance and Support. You acknowledge that NPMS has no obligation to furnish any maintenance and support, except where required by law. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Product.
16. Third Party Beneficiary. You and NPMS agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this License, and that, upon Your acceptance of these terms and conditions of the License, Apple will have the right (and will be deemed to have accepted the right) to enforce the License as a third party beneficiary.
17. Developer Name and Contact Information. Please direct any questions, complaints or claims with respect to the Product to: twilson@tribblelog.com for Next Paradigm Medical Solutions LLC.
B. HIPAA BUSINESS ASSOCIATE AGREEMENT
WHEREAS, User (or “COVERED ENTITY” for purposes of this Section of this Agreement) provides medical services and maintains certain confidential patient protected health information (“PHI”) in electronic form in the above Licensed Application;
WHEREAS, NPMS (or “BUSINESS ASSOCIATE” for purposes of this section of this Agreement) provides the Licensed Application which enables the COVERED ENTITY to process, maintain, transmit and store EPHI (collectively the “SERVICES”).
WHEREAS, the EPHI in the Licensed Application is encrypted by the COVERED ENTITY’S iPhone and the BUSINESS ASSOCIATE will not have access to COVERED ENTITY’S encryption key, the SERVICES provided will be “no-view” SERVICES as promulgated in the HHS guidance;
WHEREAS, COVERED ENTITY and BUSINESS ASSOCIATE are committed to conducting all of their business in compliance with all applicable federal, state and local statutes, regulations, rules and policies, including but not limited to, the Health Insurance Portability and Accountability Act of 1996 privacy rule and regulations enacted under its mandate, including all changes and amendments of HIPAA Privacy and Security Rules caused by the enactment of the Health Information Technology for Economic and Clinical Health Act (“HITECH”) as part of the American Recovery and Reinvestment Act of 2009 and relevant rules and regulations (collectively “the HIPAA rules”);
WHEREAS, BUSINESS ASSOCIATE is willing to provide COVERED ENTITY the Services, provided COVERED ENTITY accepts and complies with this Agreement, as required by the HIPAA Rules.
NOW THEREFORE the parties agree as follows:
1. Definitions. Capitalized terms herein shall have the specific meaning assigned within this Agreement or, if no meaning is assigned herein, the meaning set forth in HIPAA.
2. Permitted and Required Uses and Disclosures. BUSINESS ASSOCIATE agrees to use and/or disclose PHI and EPHI received from, or created or received on behalf of, COVERED ENTITY only as is necessary for the purpose of adequately rendering the Services for COVERED ENTITY, except as herein otherwise permitted.
3. General Privacy and Security Compliance. BUSINESS ASSOCIATE shall maintain and safeguard the privacy, security, confidentiality, availability, and integrity of all EPHI received from or created by COVERED ENTITY, in connection with the provision of the Services, in accordance with the provisions of HIPAA, as amended, and in accordance with all applicable federal, state and local statutes, regulations and policies regarding the confidentiality of health information.
4. Privacy and Security Obligations. As required by HIPAA and/or HITECH, BUSINESS ASSOCIATE will:
a. Not use or further disclose EPHI other than as permitted or required by this Agreement and HIPAA, for performance of the Services;
b. Use administrative, physical and technical safeguards to reasonably and appropriately protect the confidentiality, integrity and availability of EPHI and to prevent the use or disclosure of EPHI other than as permitted or required by this Agreement and HIPAA for performance of the Services, or as required by law;
c. Promptly report to COVERED ENTITY any use or disclosure of EPHI not permitted or required by this Agreement, or as required by law, including breaches of unsecured EPHI, as contemplated in HIPAA, of which BUSINESS ASSOCIATE becomes aware;
d. Ensure that any Agents, including subcontractors of BUSINESS ASSOCIATE or of any Agent, if any, to whom BUSINESS ASSOCIATE or COVERED ENTITY provides EPHI created by or received from the COVERED ENTITY agree in writing to the same restrictions and conditions that apply to BUSINESS ASSOCIATE with respect to such EPHI;
e. Make available to COVERED ENTITY, EPHI for inspection and copying in accordance with Section 164.524 of HIPAA (45 CFR 164.524);
f. Make available to COVERED ENTITY, EPHI for amendment and incorporate any amendments to EPHI, if appropriate, in accordance with Section 164.526 of HIPAA (45 CFR 164.526);
g. Make available to COVERED ENTITY information in its possession required to provide an accounting of disclosures to participants in accordance with Section 164.528 of HIPAA (45 CFR 164.528);
h. Make BUSINESS ASSOCIATE’s internal practices, books and records relating to the use and disclosure of PHI received from or created by the COVERED ENTITY available to the Secretary of Health and Human Services (“HHS”) for purposes of determining COVERED ENTITY’s compliance with HIPAA and advise COVERED ENTITY immediately upon receipt of any such request;
i. At termination of this Agreement, BUSINESS ASSOCIATE will return EPHI to COVERED ENTITY. If BUSINESS ASSOCIATE determines return is not feasible, BUSINESS ASSOCIATE will destroy all EPHI or extend the protections of this Agreement to the EPHI which will be retained by BUSINESS ASSOCIATE.;
j. Restrict, to the extent requested by COVERED ENTITY, the disclosure of a patient’s PHI or EPHI to the uses set forth in this agreement which have been disclosed to and agreed to by the patients, through the provision to each patent of a copy of the covered entities Notice Of Privacy Practices which details the permitted uses of the patients PHI.
5. Other Uses and Disclosures. Unless otherwise expressly limited by this Agreement, BUSINESS ASSOCIATE may also:
a. Use EPHI for the proper management and administration of BUSINESS ASSOCIATE or to carry out the legal responsibilities of BUSINESS ASSOCIATE;
b. Disclose EPHI for the proper management and administration of BUSINESS ASSOCIATE, provided that such disclosures are required by law or that BUSINESS ASSOCIATE obtains reasonable assurances from the person to whom the information is disclosed that the PHI and EPHI will remain confidential and will be used or further disclosed only as required by law or for the purpose for which it was disclosed to that person; and that the person to which it is disclosed will notify the BUSINESS ASSOCIATE of any instances of which it is aware in which the confidentiality of the PHI and EPHI has been breached.
6. Obligations of COVERED ENTITY.
a. COVERED ENTITY shall notify its PATIENTS and BUSINESS ASSOCIATE of its privacy practices and restrictions as follows: (i) Provide BUSINESS ASSOCIATE with a Notice of Privacy Practices that COVERED ENTITY produces in accordance with 45 CFR 164.520, and distributes to its patients, as well as any changes to such Notice if requested; (ii) Provide BUSINESS ASSOCIATE with any changes in or revocation of permission by any individual to use or disclose PHI if such changes may affect BUSINESS ASSOCIATE’S permitted and required uses and disclosures under this Agreement; and (iii) Notify BUSINESS ASSOCIATE of any restriction on the use or disclosure of PHI that COVERED ENTITY may agree to in accordance with Section 164.522 of HIPAA, if such agreement may affect BUSINESS ASSOCIATE’S permitted or required uses and disclosures under this Agreement.
b. COVERED ENTITY shall not request BUSINESS ASSOCIATE to use or disclose EPHI in any manner that would not be permissible under HIPAA if done by COVERED ENTITY.
c. COVERED ENTITY shall be solely responsible for making any decisions regarding, and for all administrative actions concerning, the exercise of any individual’s rights, under Sections 164.524 through 164.528 of the HIPAA rules.
7. Breach of Agreement; Termination.
a. In the event that either party becomes aware of an act or omission of the other party that constitutes a material breach or violation of the parties’ obligations under this Agreement, which breach is not cured within fifteen (15) days after notice is provided to the breaching party, this Agreement may be terminated by the non-breaching party for cause. Further, if in the non-breaching party’s discretion, more than one breach occurs which constitutes a pattern or practice of conduct or breach of the Agreement by the breaching party, the non-breaching party may terminate this Agreement immediately without prior notice or cure period.
b. If, upon breach of this Agreement by either party, it is not feasible, in the opinion of the non-breaching party to terminate this Agreement, the non-breaching party shall notify HHS of such situation.
8. Breach Notification. In complying with the obligations set forth in paragraph 4, sub-paragraph (c):
a. Business Associate shall use appropriate safeguards, and comply, where applicable, with the HIPAA Security Rule with respect to Electronic Protected Health Information (EPHI), to prevent use or disclosure of the information other than as provided for by this Agreement.
b. Business Associate will notify the Covered Entity within thirty (30) days after Business Associate’s Discovery of any incident that involves an unauthorized acquisition, access, use, or disclosure of unsecured Protected Health Information. Business Associate agrees that such notification will meet the requirements of the HIPAA Breach Notification Rule set forth in 45 CFR §164.410.
C. MISCELLANEOUS PROVISIONS
a. If any provision of this Agreement is or becomes unenforceable, the remainder of this Agreement shall nevertheless remain binding to the fullest extent possible, taking into consideration the purposes and spirit of this Agreement.
b. This Agreement contains the entire understanding of the parties hereto with regard to the subject matter hereof, and supersedes all other agreements and understandings, written and oral, relating to the subject matter hereof.
c. This Agreement may not be amended or modified, nor may any of its provisions be waived, except by a writing executed by both of the parties hereto or, in the case of a waiver, by the party waiving compliance.
d. The waiver of any one breach shall not be construed as a waiver of any rights or remedies with respect to any other breach or subsequent breach.
e. Any provision of this Agreement which by its terms is intended to survive the termination or expiration of this Agreement shall so survive.
h. This Agreement, including its enforcement and all matters relating to User’s access to, or use of, the Licensed Application, or any dispute related to the foregoing, shall be governed by and construed in accordance with the laws of the state of Texas, without regard to principles of conflicts of law. In the event of any breach by this Agreement by User (or its Appointees) or in the event NPMS is the prevailing party in any dispute arising from or related to this Agreement or the Website, User and its Appointees shall reimburse NPMS for its attorney’s fees and other related expenses.