Terms & Conditions
1. LICENSE AND RESTRICTIONS
1.1 Platform License. Subject to the terms and conditions of this Agreement, including Subscriber’s payment of all applicable Fees to Company, Company hereby grants to Subscriber a limited, non-exclusive and non-transferable right and license, during the Term to use the Platform on Subscriber Devices for its internal business purposes in accordance with the documentation for the Software provided by Company. Subscriber shall have no right to sublicense any of these rights or licenses to any third party. Only Authorized Users may use the Platform. As used herein, “Authorized User” means an individual (to include only Subscriber’s employees, consultants, and contractors) who is legally licensed to either provide healthcare services to patients or to assist physicians in providing healthcare services to patients and is authorized by Subscriber to use the Platform. Subscriber may not share access to the Platform over a network such that the Platform can be run by anyone other than an Authorized User. Subscriber agrees to remain liable to Company for any acts or omissions of its Authorized Users relating to the Platform.
1.2 Restrictions. Except as expressly provided in Section 1.1, Subscriber may not: (a) use the Platform, or any portion thereof for any purpose, or (b) resell, sublicense, reproduce, distribute, transfer or otherwise grant access to or transmit the Platform to any third party for any purpose, or (c) modify, adapt, alter, translate, or create derivative works from the Platform, or (d) allow any third party to resell, sublicense, distribute, transfer or otherwise grant access to or transmit the Platform, or (e) reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Platform, including without limitation any such mechanism used to restrict or control the functionality of the Platform or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Platform; or (f) remove or obfuscate any product identification, copyright or other proprietary notice from any element of the Platform or documentation, or (g) install or use the Platform in a floating, concurrent, or any other shared context distribute or otherwise make the Software or any password, key, or other access code for the Software available to any third party; or (h) remove, minimize, block, or modify any titles, logos, trademarks, copyright and patent notices, digital watermarks, disclaimers, or other legal notices that are included in the Platform, whether or not they are Company’s or a third party’s.
1.3 Limitations. Subscriber shall not at any time: (i) knowingly make any false or misleading representation with regard to or in connection with its use of Platform, or (ii) use Platform to engage in illegal or deceptive trade practices or make any other use of Platform that could expose Company to any civil or criminal liability in any jurisdiction.
1.4 Reserved Rights. Subscriber shall not be an owner of the Platform, or any copies of the Platform software, the foregoing only being licensed to Subscriber subject to the terms and conditions of this Agreement. Except for the limited rights expressly granted in this Section 1, Company reserves all right, title and interest in and to the Platform, and all technology, information, know-how, documentation or any other intellectual property included in the Platform or used in the performance of such Platforms, together with all intellectual property rights therein and any confidential information of Company.
2. PAYMENT. In case any Fees are not paid in full when due, in addition to any other remedy otherwise available to Company, Company may impose overdue charges on the past-due amounts at the rate of 1.5% per month (or, if less, the maximum amount permitted by law) until Subscriber is current on all payments. Subscriber shall reimburse Company for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past due amounts owed by Subscriber. Subscriber acknowledges that if a payment is delayed, Company, in addition to any other remedy available to Company, and not as an election of remedies, may suspend its performance hereunder until no past-due payments are outstanding. Subscriber agrees that with respect to the amounts debited by Company from Subscriber’s bank account or charged by Company to Subscriber’s credit card, if so designated and authorized by Subscriber on the cover page of this Agreement, Subscriber shall not dispute any such debit or charge with the bank or the credit card company, but shall instead, in the event of any payment dispute, notify Company of such dispute and cooperate with Company in resolving such dispute, whereupon, if any amounts are determined to be improperly debited or charged, such amounts will be refunded by Company directly to Subscriber. Subscriber may only dispute the amounts payable hereunder in good faith, upon presentation of clear and convincing evidence to Company to support Subscriber’s position. Company reserves the right to terminate this Agreement and Subscriber’s right to use the Platform if Subscriber is in violation of this Section 2. As used herein, “Fees” means the fees payable by Subscriber to Company in accordance with the terms of this Agreement, including the payments for any Third Party Products purchased by Subscriber from Company.
3. WARRANTIES, AND DISCLAIMERS
3.1 Warranty. Each party hereby represents and warrants to the other that (i) such party has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between such party and any third party.
3.2 DISCLAIMER. COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT THE USE OR OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON SUBSCRIBER’S USE OF THE PLATFORM. THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS. COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE PLATFORM. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
4. 1. LEGAL COMPLIANCE. Subscriber’s use of the Platform will comply with all applicable laws and regulations. The parties agree to comply with all state and federal patient confidentiality and privacy laws regarding medical/patient records. Further, the parties shall fully comply with HIPAA, the California Medical Information Act (“CMIA”), and all implementing regulations issued pursuant thereto, as may be amended from time to time and all confidentiality rules and legal restrictions placed on medical/patient records. In furtherance thereof, to the extent Company will be acting as a “business associate” (as such term is defined under HIPAA) to Subscriber, the parties agree to the terms of the Business Associate Addendum attached hereto as Exhibit B.
5.1 Confidential Information. The parties agree that during the course of performance under this Agreement, each party may disclose to the other party certain Confidential Information (defined below) of such disclosing party. “Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to research, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances of the disclosing party, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally is confirmed promptly in writing as having been disclosed as confidential or proprietary. Without limiting the generality of the foregoing, anything to the contrary herein notwithstanding, (a) the Confidential Information of Company shall include the Platform and all technical and business information and documentation relating thereto, and (b) the Confidential Information of Subscriber shall include all information regarding Subscriber’s authorized users provided by Subscriber to Company for the purpose of providing the Platform to Subscriber. Confidential Information does not include information, technical data or know-how which (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, or (iii) is approved for release by the disclosing party, or (iv) is independently developed by the receiving party without the use of any Confidential Information of the other party.
5.2 Non-Disclosure and Non-Use of Confidential Information. Each of the parties agrees not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except as necessary in the performance of its obligations under this Agreement. Neither party will disclose the Confidential Information of the other to third parties or to the first party’s employees except employees who are required to have the information in order to carry out such parties obligations hereunder. Each party has had or will have employees to whom Confidential Information of the other is disclosed sign a non-disclosure agreement no less protective of the Confidential Information of the other party than this Agreement, and will notify the other in writing of the names of the persons who have had access to Confidential Information of the other party. Each party agrees that it will take use the same standard of care that it uses in protecting its own confidential information to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party and to prevent it from falling into the public domain or the possession of unauthorized persons, but in no case less than reasonable care. Each party agrees to notify the other in writing of any misuse or misappropriation of Confidential Information of the other that may come to its attention. In the event of any expiration or termination of this Agreement, the receiving party shall return to the disclosing party all copies of such disclosing party’s Confidential Information in such receiving party’s possession or control.
5.3 Compelled Disclosure. The receiving party may disclose Confidential Information of the disclosing party to the extent compelled by law to do so, provided the receiving party gives the disclosing party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to that Confidential Information.
5.4 Use of Subscriber’s Name. Subscriber acknowledges that Company may desire to use Subscriber’s name in press releases, product brochures, Company’s website and financial reports indicating that Subscriber is a customer of Company, and Subscriber agrees that Company may use its name and logo in such manner. Upon Company’s request, Subscriber shall provide Company with a quote from a Subscriber executive regarding the Platform, which Company may reasonably include in printed and electronic promotional materials and publications.
5.5 Subscriber Data. Company will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the data, files, or information accessed, used, communicated, stored, or submitted by Subscriber and its Authorized Users in connection with their use of the Platform (“Subscriber Data”). Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Subscriber Data by Company personnel except (a) to provide the support services for the Platform and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 5.3, or (c) as Subscriber expressly permits in writing. Upon request by Subscriber, Company will make Subscriber Data available to Subscriber for export or download. Company will store Subscriber Date for a period of twenty (20) years after expiration or termination of this Agreement, following which period Company will have no obligation to maintain or provide any of Subscriber Data.
5.6 Records Analysis. Notwithstanding any other provision in the Agreement to the contrary, Subscriber agrees that Company may use the anonymized aggregated data submitted by Subscriber as input in connection with Subscriber’s use of the Platform without restriction for any purpose including for the purposes of statistical analysis, development and/or marketing of a benchmarking database and for promotional purposes. All data compiled by Company pursuant to this Section 5.6 shall be deemed to be owned by Company for all purposes.
6.1 Subscriber Indemnity. Subscriber shall indemnify and hold Company, its affiliates, directors, officers, shareholders, and employees harmless from and against any damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees and court costs) arising from any claims, suits, demands or other proceeding by any third party (collectively, the “Claims”) arising out of Subscriber’s (i) improper use of the Platform, (ii) violation of any laws or regulations applicable to the Platform or the use thereof, (iii) providing any products or services to third parties, or (iv) any negligence or willful misconduct in connection with, or breach of this Agreement by Subscriber. Subscriber shall, at its own expense, defend Company against any Claim provided that Company shall promptly notify Subscriber of any Claim and reasonably cooperate with Subscriber to facilitate settlement or defense thereof. This paragraph shall survive the expiration or termination of this Agreement.
6.2 Company Indemnity. Company, at its expense, will defend or settle any action brought against Subscriber by a third party to the extent based on a claim that the Platform, as supplied by Company and when used as provided for by this Agreement, infringes any copyright, trade secret, or United States patent. Company will pay any award against Subscriber, or settlement entered into on Subscriber’s behalf, based on such infringement only if Subscriber notified Company promptly in writing of the claim, provided reasonable assistance in connection with the defense and/or settlement thereof, and permitted Company to control the defense and/or settlement thereof. Company shall have no liability for indemnification where the Platform alone would not have given rise to the infringement claim, including without limitation in instances where the alleged infringement is caused by any modification of the Platform or combination of the Platform with any equipment, programs or data not provided by Company. In the event of an infringement action against Subscriber with respect to the Platform or documentation, or in the event Company believes such a claim is likely, Company shall be entitled, at its option but without obligation, to (i) appropriately modify the Platform licensed or made available hereunder, or substitute other Platforms which, in Company’s good faith opinion, does not infringe any third party intellectual property rights; or (ii) obtain a license with respect to the applicable third party intellectual property rights. If neither (i) nor (ii) is commercially practicable, Company may terminate this Agreement and Subscriber’s licenses hereunder. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, THE FOREGOING STATES COMPANY’S ENTIRE LIABILITY AND SUBSCRIBER’S SOLE REMEDY FOR ACTUAL OR ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO COMPANY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATION HEREUNDER, IN NO EVENT WILL COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY SUBSCRIBER FOR THE PLATFORMS GIVING RISE TO THE LIABILITY DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE PARTIES AGREE THAT THE PRECEDING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK.
8.1 Termination for Cause. If either party materially breaches or defaults in any of the terms or conditions of this Agreement, including but not limited to the payment of any undisputed fees, then the non-breaching party may give written notice to the defaulting party that if the default is not cured within fifteen (15) days the Agreement will be terminated. If the non-defaulting party gives such notice and the default is not cured during the fifteen (15) day period, then the non-defaulting party may elect to terminate this Agreement at the end of such cure period.
8.2 Termination for Insolvency. Company shall have the right to terminate this Agreement upon written notice to Subscriber (i) upon the institution by or against Subscriber of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Subscriber’s debts, (ii) upon Subscriber making an assignment for the benefit of creditors, or (iii) upon Subscriber’s dissolution or cessation of business.
8.3 Effect of Termination. Termination of this Agreement shall not relieve the parties of any obligation accruing prior to such termination. Upon any termination of this Agreement, all licenses granted hereunder shall terminate. The provisions regarding data and intellectual property ownership, records and audits, disclaimer of warranties, confidentiality, indemnification, limitations of liability, termination, and any payment obligations shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties shall cease upon termination of this Agreement.
9. AUDIT AND INSPECTION RIGHTS. Within fifteen (15) calendar days of a written request by Company, Subscriber and its agents (including all Authorized Users) shall permit Company to audit Subscriber’s and Authorized Users’ use of the Platform, internal practices, books, and records at reasonable times as they pertain to this Agreement in order to ensure that Subscriber are in compliance with the requirements of this Agreement. The availability of books and records from Subscriber to Company is subject to the following conditions: (a) the parties shall mutually agree in advance upon the scope, timing, and location of such an inspection; (b) Company shall protect the confidentiality of all confidential and proprietary information to which Company has access during the course of inspection; and (c) Company shall execute a nondisclosure agreement, under terms mutually agreed upon by the parties, if requested by Subscriber. If the results of any such inspection indicate the underpayment by Subscriber of applicable Fees due and payable to Company, Subscriber must immediately pay such amounts to Company and reimburse Company for the cost of such inspection. Further, Subscriber agrees that the Platform may collect and communicate certain software, hardware, and use information to Company’s or its service providers’ servers for the purposes of (i) checking for and performing any updates; (ii) ensuring that Subscriber has complied and is complying with the terms and conditions of this Agreement; and (iii) Company’s internal product development. Company will not provide any of the information to any third party except as required by law or legal process or to enforce compliance with the terms in this Agreement.
10. GENERAL. THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND WILL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO SUCH STATE’S CONFLICTS OF LAWS PRINCIPLES. IN NO EVENT SHALL THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. All disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue of the California state and federal courts located in San Diego County and the parties consent to the personal and exclusive jurisdiction of these courts. This Agreement is the entire agreement between Subscriber and Company with respect to the subject matter hereof. Subscriber may not assign this Agreement, by operation or law or otherwise, without Company’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Company’s failure to enforce Subscriber’s strict performance of any provision of this Agreement will not constitute a waiver of Company’s right to subsequently enforce that provision, or any other provisions of this Agreement. No waiver of any provision hereof will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Except as expressly provided herein, no remedies in this Agreement are exclusive of any other remedies but will be cumulative and shall include all remedies available hereunder or under any other written agreement or in law or equity. Company shall not be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, internet outages, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond Company’s control. Subscriber and Company are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales Subscriber or employment relationship between Subscriber and Company. All financial and other obligations associated with Subscriber’s business are the sole responsibility of Subscriber. Any notice required or permitted to be given under this Agreement shall be in writing and addressed to such other party at its address indicated on the cover page of this Agreement, or to such other address as the addressee shall have last furnished in writing to the addressor, and shall be effective (i) when delivered in person or by courier or confirmed facsimile; (ii) when received by electronic mail at the proper address followed by a reasonable indication of receipt by the recipient; (iii) upon confirmation of receipt when sent by certified mail, return receipt requested; or (iv) upon receipt when sent by reputable private international courier with established tracking capability (such as DHL, FedEx, or UPS), postage pre-paid.