License Agreement
THIS
END-USER SOFTWARE LICENSE AGREEMENT & SERVICES AGREEMENT
(“Agreement”) is made this day of (the “Effective Date”), by and
between Eclipsys Practice Solutions LLC, a Delaware limited
liability company (“Eclipsys ”), and ("Licensee")
having its
principal place of business at (“Licensee”).
WHEREAS, Eclipsys has the right and authority to distribute
certain proprietary software programs (the object code versions
of such programs being hereinafter referred to as the
“Software”), for use in the health care industry;
WHEREAS, Eclipsys desires to grant to Licensee a limited license
of certain software and Licensee desires to obtain such license
to use such software, as provided in this Agreement;
WHEREAS, Eclipsys also desires to provide
to Licensee, and Licensee desires to purchase from Eclipsys,
certain professional
[and remote hosting] services as
described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the foregoing and the mutual
covenants set forth herein, the parties agree as follows:
Article 1.
DEFINITIONS
1.1.
“Affiliate” shall mean, with respect to a
party, any entity that controls, is controlled by, or is under
common control with such party, where “control” means direct
or indirect beneficial ownership
of fifty percent (50%) or more of the outstanding voting
securities or voting rights.
1.2.
“Computer” means an electronic device or media that accepts
information in digital or electronic form and manipulates it for
a result based on a sequence of instructions.
1.3.
“Confidential Information” means (a) information provided by
Eclipsys to Licensee hereunder or in connection herewith
regardless of the format or manner in which it is transmitted
which may include, without limitation, (i) Eclipsys ’s trade
secrets, proprietary information, intellectual property rights,
and the object and source codes for the Software, (ii)
information, whether or not constituting a trade secret at law,
relating to Eclipsys, its business, products and services, and
demonstrably anticipated business, products, and services, which
is not generally known to, and not readily ascertainable by
proper means by other Persons or third parties; (b) information
provided by Licensee to Eclipsys hereunder or in connection
herewith regardless of the format or manner in which it is
transmitted which may include, without limitation, information
about Licensee, its business, the identity of patients, the
content of any medical records, information about physicians and
other healthcare providers, financial and tax information,
information regarding Medicare, Medicaid, or MediCal and any
other third party payer claims submission and reimbursements,
and any other information proprietary to or concerning Licensee
which is not generally known to, and not readily ascertainable
by proper means by other Persons or third parties; and (c) any
other information so designated in writing prior to disclosure
by the party claiming that the information to be disclosed is
confidential or proprietary business information delivered or
disclosed under this Agreement.
1.4.
“Data” means all data and information processed through use of
the Software or provided to
Eclipsys by Licensee
under the terms of this Agreement.
Data specifically includes, but is
not limited to, patient identification information, patient
medical records, claims information, information about
physicians, financial information, Medicare, Medicaid, or
MediCal and other payer information, reimbursement information,
and other information relating to the business of Licensee or
the respective patients, clients or customers of Licensee.
1.5.
“Documentation” means any guides, manuals, training materials
and other documentation which is provided to Licensee by
Eclipsys in connection with the Agreement and
that is
designated by Eclipsys as the governing user documentation for
licensees of the Software and/or customers of the Services[,
including, without limitation, the User Guide].
1.6.
“Facility” means the locations
designated in Exhibit B
to this Agreement.
1.7.
["Go Live"
means
the date when Licensee
achieves first functionality under the Software
after
training on such
first functionality.]
1.8.
“HIPAA” means the Health Insurance and Portability
Accountability Act of 1996, as codified at 42 U.S.C. § 1320d
through d-8, as amended.
1.9.
“License Fees” are the fees set forth in
Exhibit A
for the license of the Software.
1.10.
“Licensed
User” shall mean an employee of Licensee who is authorized to
use the Software
and is included in the numbers listed on
Exhibit A
as a provider or an employee of the provider.
1.11.
“Order Form” means the ordering documents representing the
initial purchase of products and services from Eclipsys as well
as any subsequent purchases agreed to between the parties in
writing from time to time, that are executed hereunder and
deemed incorporated into this Agreement from time to time.
1.12.
“Person” means a natural person, a legal person or entity
including but not limited to a corporation, limited liability
company, professional association, or limited partnership.
1.13.
“Professional Services” shall mean
installation and training services Licensee receives from
Eclipsys.
1.14.
“Provider” means licensed healthcare
professional whose credentials are associated with delivery of
healthcare services for fees directly to patients.
1.15.
[“Remote Hosting Services”
means the applications identified on
Exhibit A
that are to be hosted by the Eclipsys data center pursuant to
the terms of this Agreement.
___________]
1.16.
“Services” shall mean
[Remote Hosting Services,] Software
Support and Professional Services.
1.17.
“Software”
means Eclipsys’s
proprietary computer software known either as Eclipsys
Peak Practice™ EMR, Eclipsys Peak Practice ™ PM, Eclipsys
Peak Practice ™ Suite, and Eclipsys
Peak Practice ™ SC (Supply Chain )
developed add-on, as specified in
Exhibit A
as the Software requested by Licensee,
and any Updates and Upgrades thereto.
The term “Software” includes
software licensed by or acquired from third parties that is
embedded in the Software by Eclipsys.
The term “Software” also includes
all software interfaces and custom software developed by
Eclipsys
for use by Licensee in connection with this Agreement.
1.18.
“Software
Support” shall mean Updates, Upgrades, and the support and
maintenance services for the Software as identified on
Exhibit D.
1.19.
“Third Party Software” means the third party computer software,
including operating system software but excluding third party
software embedded in the Software, and the third party
databases, if any, which are owned or licensed by third parties
and are needed for use of the Software.
1.20.
“Update”
means updates to clinical database content, access to new
modules or any service pack, patch, hot fix, modification,
change, or supplement to the Software that is generally released
by Eclipsys during the term of this Agreement but which does not
include an Upgrade or new application of the Software.
The term
Update also
includes any upgrade, service pack, patch, hot fix,
modification, change, or supplement to each Third Party Software
that is generally released by such Third Party Software supplier
without charge to Eclipsys or the Licensee,
but does not include any new release or new version of a Third
Party Software.
1.21.
“Upgrade”
means any enhancement upgrades which are any upgrade, service
pack, patch, hot fix, modification, change, or supplement to the
Software that is generally released by Eclipsys
during the term of this Agreement,
including any new release or new version of the Software, that
enhances or improves existing functionalities of the Software.
1.22.
["User Guide" means the online user guide for the Remote Hosting
Services, accessible via Eclipsys’
https://edu.medinotes.com
website
as updated from time to time.]
1.23.
[“Users"
means Licensee's employees, consultants, contractors or agents
who are authorized to use the Remote Hosting Services and have
been supplied user identifications and passwords by Licensee (or
by Eclipsys at Licensee's request).]
Article 2.
GRANT OF BASIC
LICENSE AND SERVICES
2.1.
Grant of License.
Subject to the terms and conditions
of this Agreement, Eclipsys grants to Licensee a, limited,
personal, non-transferable and non-exclusive perpetual license
(the “License”) to use the Documentation and to install and use
the version of the Software most recently released by Eclipsys
as of the Effective Date, but only at the
Facilities listed in Exhibit B
and only by the number of Licensed Users as described in
Exhibit A
and only in object code form.
Licensee may expand the scope of
this License to add Facilities and Licensed Users by paying
additional License Fees as required under Article 3 hereof. The
License is extended to subsequent versions of the Software and
related Documentation on the condition that
at the time when Eclipsys
releases such subsequent version,
Licensee is
not in breach of
this Agreement.
Eclipsys
does not grant to Licensee any title or
rights of ownership in the Software. The Software, including
each component thereof, is licensed for use by Licensee solely
for Licensee’s internal business purposes and Licensee shall not
use the Software or any part thereof in connection with a time
share arrangement, as an application service provider or any
other arrangement pursuant to which Licensee processes data or
information for third parties or permits third parties to use
Licensee’s facilities or Computer to access the Software.
This License covers only the
Documentation and Software.
[Eclipsys also grants Licensee and its Users a worldwide,
non-exclusive, non-transferable, non-sublicenseable right to
access and use the Remote Hosting Services in accordance with
the terms of this Agreement.
Licensee shall not (i) modify, copy or create derivative works
based on the Remote Hosting Services or Eclipsys Technology;
(ii) create Internet "links" to or from the Remote Hosting
Services, or "frame" or "mirror" any content forming part of the
Remote Hosting Services, other than on Licensee's own intranets
or otherwise for its own internal business purposes; or (iii)
disassemble, reverse engineer, or decompile the Remote Hosting
Services or Eclipsys Technology, or access it in order to (A)
build a competitive product or service, (B) build a product or
service using similar ideas, features, functions or graphics of
the Remote Hosting Services, or (C) copy any ideas, features,
functions or graphics of the Remote Hosting Services.]
2.2.
Prohibited
Activities.
Except as specifically allowed in this Agreement and Exhibits
attached hereto, Licensee shall not modify, reverse engineer,
alter, translate, decompile, disassemble, update, copy or
otherwise reproduce the Software, in whole or in part. Licensee
agrees that (i) neither it, its affiliates nor any person or
entity having access through it to the Software or Documentation
will attempt to modify, reverse engineer, alter, translate,
decompile, disassemble, update copy or otherwise reproduce all
or any part of the Software or Documentation and (ii) Licensee
will take reasonable steps to ensure that all persons having
access to the Software and Documentation will observe and comply
with Licensee’s obligations with respect to the Software and
Documentation set forth in this Agreement.
Licensee promptly shall notify
Eclipsys if it has any knowledge or notice of any person or
entity’s non-compliance with this Agreement.
Any copies of the Software or
Documentation that are permitted to be made under this Agreement
must contain the same copyright and other proprietary notices
that appear on or in the Software.
Licensee may make a single copy of
the Software and such copy shall be used solely for backup and
archival purposes.
Licensee shall not rent, sell,
purport to sell, assign, lease, sublicense, give or lend the
Software to any other person or entity, or allow the Software
out of its possession, unless
and except as specifically allowed
in this License Agreement and Exhibits attached hereto.
Licensee shall safeguard the
Software and Documentation and treat it as confidential business
property of Eclipsys.
2.3.
Proprietary Rights
of Eclipsys.
Licensee acknowledges that the
Software and Documentation are copyrighted works of Eclipsys or
its licensors and agrees that any copyright, trademark or other
proprietary notice appearing on the Software or Documentation
shall be retained in their exact form on such Software and
Documentation.
Licensee shall not take any action
that jeopardizes any of Eclipsys’s proprietary rights. Licensee
shall not acquire any rights with respect to any of the
Software, Documentation trademarks or other intellectual
property of Eclipsys, except the rights herein specified.
Eclipsys retains all rights in the
Software and Documentation not expressly granted to Licensee
herein.
Licensee acknowledges that in
providing the Software and
Services, Eclipsys utilizes (i) the
Eclipsys
Peak Practice
name, the Eclipsys
Peak Practice
logo, the Eclipsys
Peak Practice .com domain name, the
product and service names associated with the Software and
Services, and other trademarks and service marks; (ii) certain
audio and visual information, documents, software and other
works of authorship; and (iii) other technology, software,
hardware, products, processes, algorithms, user interfaces,
know-how and other trade secrets, techniques, designs,
inventions and other tangible or intangible technical material
or information (collectively, "Eclipsys
Technology") and that the ECLIPSYS
Technology
is covered by intellectual property
rights owned or licensed by Eclipsys (collectively, "Eclipsys
IP Rights"). Other than as expressly
set forth in this Agreement, no license or other rights in or to
the Eclipsys Technology or Eclipsys IP Rights are granted to
Licensee, and all such licenses and rights are hereby expressly
reserved.
2.4.
Audit Right.
During normal business hours, and
upon ten days advance notice to Licensee, Eclipsys or its
authorized representative shall have the right to enter upon
Licensee’s premises at each Facility which is licensed to use
the Software, to conduct such audit and inspection that Eclipsys
deems is reasonably necessary to insure Licensee’s use of
Eclipsys’s Software is limited to the facilities and number of
Licensed Users reported to Eclipsys.
All audits will be conducted in a
manner that does not unreasonably interfere with Licensee’s
business activities.
Licensee shall have the right to set
the date and time for any Audit, to accommodate the needs of its
business.
Eclipsys shall be responsible for
all costs and expenses incurred by it or its representatives in
the course of such audit or inspection.
Licensee shall cooperate in such
audit and inspection.
2.5.
Confidentiality.
Licensee acknowledges and agrees
that all information related to the Software which is provided
by Eclipsys to Licensee in connection with this Agreement is
confidential and proprietary to Eclipsys.
Licensee agrees not to use any
Confidential Information of Eclipsys for any purpose other than
as permitted or required hereunder.
Either party (“Disclosing Party”)
may from time to time during the term of this Agreement disclose
Confidential Information to the other party (“Receiving Party”).
The parties hereto agree that, as a
Receiving Party of such Confidential Information, each agrees
not to disclose or provide any of Confidential Information of
the Disclosing Party to any third party and to take all
necessary measures to prevent any such disclosure by the
Receiving Party’s employees. The Receiving Party will not use
any Confidential Information of the Disclosing Party for any
purpose not contemplated by this Agreement, and will disclose
the Confidential Information only to the employees and agents of
the Receiving Party who have a need to know such Confidential
Information for purposes of this Agreement and who are under a
duty of confidentiality no less restrictive than the Receiving
Party’s duty hereunder.
The Receiving Party will protect the
Confidential Information from unauthorized use, access, or
disclosure in the same manner as the Receiving Party protects
its own confidential or proprietary information of a similar
nature and with no less than reasonable care.
Notwithstanding the foregoing, the
Receiving Party’s obligations under this Section 2.5 with
respect to any Confidential Information will terminate if or
when such information: (a) was already known to the Receiving
Party, free of any duty of confidentiality; (b) is disclosed to
the Receiving Party by a third party who had the right to make
such disclosure without any confidentiality restrictions; (c)
is, or through no fault of the Receiving Party becomes,
generally available to the public; or (d) is independently
developed by the Receiving Party without access to, knowledge
of, or use of, the Confidential Information.
In addition, the Receiving Party
will be allowed to disclose the Confidential Information to the
extent that such disclosure is (i) approved in writing by the
Disclosing Party after having been fully informed of the nature
and extent of the disclosure, (ii) necessary in the course of
legal proceedings for the Receiving Party to defend itself or to
enforce its rights under this Agreement, provided that the
Receiving Party stipulates to a protective order preventing
public release, or (iii) required by law or by the order of a
court or similar judicial or administrative body, provided that
the Receiving Party notifies the Disclosing Party of such
required disclosure promptly and in writing and cooperates with
the Disclosing Party, at the Disclosing Party’s reasonable
request and expense, in any lawful action to contest or limit
the scope of such required disclosure.
2.6.
Customer Data.
Customer Data shall be considered
Confidential Information subject to the terms of this Agreement.
Eclipsys may access Licensee's User
accounts, including Customer Data, to fulfill its Service
obligations.
2.7.
Suggestions and
Templates.
Eclipsys shall have a royalty free,
worldwide, perpetual license to use or incorporate into the
Software or Services any suggestions, ideas, enhancement
requests, feedback, recommendations or other information
provided by Licensee or its Users relating to the operation of
the Software or Services.
Eclipsys shall have a royalty free,
worldwide, perpetual license to use or incorporate into
Eclipsys’ template library all templates developed by Eclipsys
or Licensee.
2.8.
Publicity.
Eclipsys may use
Licensee’s name in marketing materials (including but not
limited to advertisements and press releases) which advertise
the relationship between the Parties.
Such materials shall not include
pricing terms.
Eclipsys shall submit such marketing
materials to Licensee for prior review and approval, not to be
unreasonably withheld.
If
Licensee does not communicate its approval or disapproval within
5 business days, then Eclipsys has the right to issue such
marketing materials without Licensee's prior written approval.
Article 3.
FEES
3.1.
Fees.
3.1.1.
Licensee shall pay to Eclipsys the applicable License Fee set
forth in Exhibit A.
Licensee acknowledges that
the License Fee is determined based on the number of Licensed
Users, as listed and categorized on Exhibit A, and that such
Licensee further acknowledges and agrees that it will provide
updates to Exhibit A and Exhibit B as Licensee’s employees
change so that any additional License Fees payable (on a net
increase of Licensed Users) may be properly calculated and
assessed by Eclipsys.
Eclipsys’s determination as to which
category a Licensed User falls under for purposes of determining
the License Fee shall be final and conclusive.
One hundred
percent (100%) of the License Fee is due concurrently with the
execution of this Agreement, regardless of whether invoiced.
3.1.2.
Licensee shall pay the Professional Services
fees set forth in Exhibit A,
shall be due and payable to Eclipsys in accordance with
Eclipsys’ general payment terms set forth in Article 3.2.
3.1.3.
Licensee shall pay Software Support Fees (as defined
in Article 4.3) as may be required under Article 4 hereof, which
shall be due and payable to Eclipsys in the manner and at the
time(s) provided in Article 4.
3.1.4.
[Licensee
shall pay Remote Hosting Services fees as may be required under
Article 5 hereof, which shall be due and payable to Eclipsys in
the manner and at the time(s) provided in Article 5.]
3.2.
Invoicing and Payment; Overdue Payments.
Fees will be invoiced in advance and
otherwise in accordance with the terms set forth in the relevant
Order Form.
Unless otherwise stated in the Order
Form or on an invoice, fees are due on the 5th
day of the month.
Unless otherwise stated on the Order
Form or provided herein, all payments made under this Agreement
shall be in United States dollars.
Any payment not received from
Licensee
by the applicable
due date may accrue (except with respect to charges then under
reasonable and good faith dispute), at Eclipsys discretion, late
charges at the rate of 1.5% of the outstanding balance per
month, or the maximum rate permitted by law, whichever is lower,
from the date such payment was due until the date paid.
3.3.
Taxes.
Licensee shall be required to pay
all sales, use, excise or similar tax imposed by governmental
authority on the licensing fee or other amount required to be
paid by the Licensee pursuant to this Agreement.
Unless otherwise stated, Eclipsys’
fees do not include any local, state, federal or foreign taxes,
levies or duties of any nature (“Taxes”).
Licensee is responsible for paying
all Taxes, excluding only taxes based on Eclipsys’ income.
If Eclipsys has the legal obligation
to pay or collect Taxes for which Licensee is responsible under
this section, the appropriate amount shall be invoiced to and
paid by Licensee unless Licensee provides Eclipsys with a valid
tax exemption certificate authorized by the appropriate taxing
authority.
3.4.
Billing and Contact Information.
Licensee shall be responsible to
maintain complete and accurate billing and contact information
with Eclipsys at all times.
3.5.
Suspension of
Services.
If Licensee's account is 30 days or
more overdue (except with respect to charges then under
reasonable and good faith dispute), in addition to any of its
other rights or remedies, Eclipsys reserves the right to suspend
any Services provided to Licensee, without liability to
Licensee, until such amounts are paid in full.
Article 4.
SOFTWARE SUPPORT
4.1.
Software Support.
Licensee hereby subscribes to
Software Support, and to pay such additional fees with respect
to such Software Support as is set forth in Article 4.3 below.
In connection with the Software
Support, Eclipsys will provide, among other things, Updates to
the Software, including updates to the clinical database which
will be downloaded to Licensee’s Computer(s) on as
required basis.
4.2.
Software Support
Term.
The initial term of Software Support
shall begin upon the Effective Date of this Agreement and end
three/five/seven (5/7) years
thereafter (“Initial Support Term”).
For so long as Licensee continues to
support the Software generally in the normal course of its
business, the Initial Support Term shall renew automatically for
additional renewal terms of one (1) year each (“Renewal Support
Term”), unless terminated in writing by either party at least
six (6) months prior to the end of the then current term, and
provided that Licensee pays the renewal fee prior to the
expiration of the then-current annual term.
For any Renewal Support Term, the
annual support fee shall be at Licensee’s then-effective rates
(as may be adjusted in Eclipsys’s discretion by the Annual
Adjustment (as defined below)).
The Initial Term and any and all
Renewal Support Term together shall mean the “Software Support
Term.”
Eclipsys shall invoice Licensee for
renewal Software Support fees at least thirty (30) days prior to
the expiration of the then-current Software Support Term.
If Licensee fails to pay the annual
Software Support fees and later elects to renew their Software
Support, Client agrees to pay the following fees: (i) “catch up”
fees equal to the time gap in Software Support, pro-rated by
month for the full period of time that Client was not paying for
Software Support, and (ii) any Software Support annual increases
applicable per the terms of this Agreement.
“Annual Adjustment” means an
increase to the fees as then in effect (giving effect
to previous adjustments) equal to the
percentage increase in
the Consumer Price Index (CPI) as determined by U.S. Department
of Labor Bureau of Labor, Statistics, and Consumer Price Index
for All Urban Consumers (CPI-U): U.S. city average, All Items,
for the
for the most recently completed
12-month measurement period for which
such data is available.
4.3.
Fees.
From and after the Effective Date,
the fees applicable to the Software Support (“Software Support
Fees”) shall be paid by Licensee by the 5th
of each month for all Facilities using the Software unless
otherwise noted in Exhibit A.
Such Software Support Fees shall be collected by Eclipsys via
one of the following three methods, as Licensee may elect: (a)
automatic charge to Licensee’s designated merchant account or
(b) by automatic debits from Licensee’s designated bank account
or (c) corporate check made payable to Eclipsys and received by
Eclipsys no later than the 5th
of each month.
Concurrently with the execution of
this Agreement Licensee will deliver to Eclipsys a completed
bank debit authorization form or charge card authorization form,
in the form attached hereto as
Exhibits C-1 or
C-2 if
option (a) or (b) is elected.
Licensee shall notify Eclipsys at
least thirty (30) days prior to effecting a change in any such
merchant or bank account being used for the payment and
collection of the fees hereunder.
In the event that any charge or
debit is rejected, Eclipsys will re-attempt such debit or charge
once more within the three business days following the first
rejected attempt.
There will be an administrative
charge of $30.00 for any such rejected debits or charges.
Upon delivery and installation of
the Software, Eclipsys will collect a pro-rata portion of the
monthly Software Support Fee hereunder if installation occurs at
any time other than during the last five business days or first
five business days of a calendar quarter.
4.4.
Licensee’s
Obligations.
Licensee shall deliver accurate and
complete electronic encoding of transactions in Eclipsys’s
acceptable medium and common format, as designated by Eclipsys.
Licensee shall prepare the location
or locations for use of any Services, including obtaining and
maintaining remote connectivity, and shall be responsible for
the safekeeping, insurance, and security of all network
services, software, and equipment on Licensee’s premises.
Licensee will access the system
pursuant to Eclipsys’s instructions, and request information
from Eclipsys only in connection with any Services and ensure
that all data can be readily processed in the manner requested;
for example, if the data relates to patient or payor invoicing,
Licensee shall ensure that every invoice or claim submitted can
be readily associated and identified with the corresponding
patient’s medical and business office records, including patient
authorizations and signatures if applicable.
All original and source documents
will be retained according to federal and state law and
regulations.
Licensee agrees that Eclipsys has
the right to audit and confirm information submitted.
Licensee assumes all liability
regarding said information.
Licensee agrees to consider and
treat all information received through the network as
confidential.
Licensee shall maintain internet
connection with sufficient bandwidth to maintain remote
connectivity to Eclipsys’s Computer server.
Licensee acknowledges that its data
may be altered or corrupted in the course of Eclipsys providing
Updates under this Agreement.
Licensee agrees to take all
appropriate measures to isolate and backup its systems so that
any altered, lost or corrupted data may be adequately restored,
and Licensee releases, and discharges Eclipsys from all
liability or other obligation to Licensee for any alteration,
loss, or corruption of Licensee’s data in connection with the
Update services provided under this Agreement, even if such
liability or loss arose from Eclipsys’s own negligence.
Eclipsys shall not be responsible
for Licensee’s failure to receive Updates, nor will Eclipsys
issue any credit or refund as a
result of such failure, if such failure results from:
a)
Error conditions or failure due to
installed software or firmware not provided as part of the
Software.
b)
Error conditions or failure
attributable to the Licensee’s network or remote access hardware
or software.
c)
Error conditions or failure due to
hardware or operating system malfunction or incompatibility.
d)
The installation or configuration of
hardware, network or operating system.
e)
The use of the Software for a
purpose for which it was not designed.
f)
Error conditions or failure due to
accident, fault or negligence by the
Licensee,
including
Licensee’s
failure to maintain proper environmental conditions.
g)
Defects that do not significantly
impair or affect the operation of the Software.
h)
Use of the Software on an
unsupported computer or operating system.
i)
Error conditions or failure due to
computer viruses.
j)
Customized programs for Licensee
developed by Eclipsys beyond any warranty period.
Article 5.
[REMOTE HOSTING SERVICES
5.1.
Provision of Remote Hosting Service.
The initial term of Remote Hosting Services shall begin upon the
Effective Date of this Agreement and end ____ years thereafter
(“Initial Hosting Term”). The Initial Remote Hosting Term shall
renew automatically for additional renewal terms of one (1) year
each (“Renewal Hosting Term”), unless terminated in writing by
either party at least six (6) months prior to the end of the
then current term, and provided that Licensee pays the renewal
fee prior to the expiration of the then-current annual term.
The Initial Hosting Term and any and all Renewal Hosting Term
together shall mean the “Hosting Term.”
During the
Hosting Term,
Eclipsys
(or Eclipsys’ subcontractors)
shall make the
Remote Hosting
Services available to Licensee pursuant to the terms and
conditions set forth in this Agreement and for the fees set
forth in Exhibit A
attached hereto and any and all Order Forms executed hereunder
from time to time.
For any Renewal Hosting Term, the annual Remote Hosting Services
fee shall be at Licensee’s then-effective rates (as may be
adjusted in Eclipsys’s discretion by the Annual Adjustment).
Eclipsys shall invoice Licensee for renewal Remote Hosting
Services fees at least thirty (30) days prior to the expiration
of the then-current Term.
If Licensee fails to pay the annual Remote Hosting Services fees
and later elects to renew their Remote Hosting Services, Client
agrees to pay the following fees: (i) “catch up” fees equal to
the time gap in Remote Hosting Services, pro-rated by month for
the full period of time that Client was not paying for Remote
Hosting Services, and (ii) any Remote Hosting Services annual
increases applicable per the terms of this Agreement.
During the Hosting Term, (i) the applications offered in the
Remote Hosting
Services shall perform materially in accordance with the User
Guide, and (ii) the functionality offered as part of the
Remote Hosting
Services will not be materially decreased from that available as
of the Effective Date.
5.2.
Additional Users.
User subscriptions for the
Remote Hosting
Services are for named Users and cannot be shared or used by
more than one User but may be reassigned from time to time to
new Users replacing former Users who have terminated an
employment or some other prior relationship with Licensee,
changed job status or function, or otherwise no longer require
ongoing use of the
Remote Hosting
Services.
Unless otherwise specified in the relevant Order Form (i)
additional User subscriptions must be added in minimum
increments of 1 units; (ii) the term of the additional User
subscriptions shall be coterminous with the expiration of the
then current term; and (iii) pricing for the additional User
subscriptions shall be the same as that for the pre-existing
subscriptions, prorated for the remainder of the then current
term.
5.3.
Eclipsys Responsibilities.
Eclipsys shall: (i) in addition to its confidentiality
obligations herein, not use, edit or disclose to any party other
than Licensee the Customer Data; (ii) maintain the security of
the
Remote Hosting
Services and the Customer Data; (iii) provide telephone and
online standard support to Licensee's Users, at no additional
charge, up to a maximum of 5 Cases per User per month (pooled
and allocable over all Users as needed); and (iv) use
commercially reasonable efforts to make the Service generally
available 24 hours a day, 7 days a week, except for:
(a) planned downtime (of which Eclipsys shall give at least 8
hours notice and which Eclipsys shall schedule to the extent
reasonably practicable during the weekend hours from 6:00 p.m.
PT Friday to 3:00 a.m. PT Monday); or (b) downtime caused by
circumstances beyond Eclipsys’ reasonable control, including
acts of God, acts of government, flood, fire, earthquakes, civil
unrest, acts of terror, strikes or other labor problems not
involving Eclipsys employees, computer or telecommunications
failures or delays involving hardware or software not within
Eclipsys’ possession or reasonable control, and network
intrusions or denial of service attacks, but only to the extent
unavailability results notwithstanding the exercise by Eclipsys
of reasonable care and due diligence to avoid or mitigate the
same in anticipation of or in response to such causes; (v) make
reasonable backups of Customer Data for restoration and up to 48
hours.
5.4.
Licensee Responsibilities.
Licensee is responsible for all activities that occur under
Licensee's User accounts.
Licensee shall:
(i) have sole responsibility for the accuracy, quality,
integrity, legality, reliability, and appropriateness of all of
Licensee’s Customer Data; (ii) use commercially reasonable
efforts to prevent unauthorized access to, or use of, the Remote
Hosting Services, and notify Eclipsys promptly of any such
unauthorized use; and (iii) comply with all applicable local,
state, federal, and foreign laws in using the Remote Hosting
Services and, if using the Remote Hosting Services outside of
the United States, not use the Remote Hosting Services in a
manner that would violate any federal or state laws of the
United States if conducted therein.
5.5.
User Guidelines.
Licensee shall use the Remote Hosting Services solely for its
internal business purposes as contemplated by this Agreement and
shall not:
(i) license, sublicense, sell, resell, rent, lease, transfer,
assign, distribute, time share or otherwise commercially exploit
or make the Remote Hosting Services available to any third
party, other than as contemplated by this Agreement; (ii) send
spam or otherwise duplicative or unsolicited messages in
violation of applicable laws; (iii) send or store infringing,
obscene, threatening, libelous, or otherwise unlawful or
tortuous material, including material harmful to children or
violative of third party privacy rights; (iv) send or store
material containing software viruses, worms, Trojan horses or
other harmful computer code, files, scripts, agents or programs;
(v) interfere with or disrupt the integrity or performance of
the Remote Hosting Services or the data contained therein; or
(vi) attempt to gain unauthorized access to the Remote Hosting
Services or its related systems or networks.
5.6.
Third Party Providers.
Certain third-party providers, some of which may be listed on
pages within Eclipsys’ website, offer products and services
related to the Remote Hosting Services, including
implementation, customization and other consulting services
related to Licensees’ use of the Remote Hosting Services and
applications (both offline and online) that work in conjunction
with the Remote Hosting Services, such as by exchanging data
with the Remote Hosting Services or by offering additional
functionality within the user interface of the Remote Hosting
Services through use of the Remote Hosting Services's
application programming interface.
Eclipsys does not warrant any such third-party providers or any
of their products or services, whether or not such products or
services are designated by Eclipsys as "certified," "validated"
or otherwise.
Any exchange of data or other interaction between Licensee and a
third-party provider, and any purchase by Licensee of any
product or service offered by such third-party provider, is
solely between Licensee and such third-party provider.].
Article 6.
TERM AND
TERMINATION OF LICENSE AND AGREEMENT
6.1.
Term.
The term of this License shall
commence on the Effective Date and continue in effect thereafter
in perpetuity, unless Licensee or Eclipsys shall have
terminated this Agreement in
accordance with the provisions of Section 6.2 below.
6.2.
Termination.
Either party may terminate this
Agreement by providing written notice of termination to the
other party upon the occurrence of a Default (as defined in
Article 8).
No such termination shall relieve any party
of liability for any breach of this Agreement occurring prior to
the effective date of such termination.
6.3.
Effect of
Termination.
Upon the termination or expiration
of this Agreement, all Confidential Information will be returned
to the Disclosing Party or, upon the written instructions of the
disclosing party, shall be destroyed, except for any
Confidential Information which the Receiving Party has a
continuing right to use.
Upon the termination or expiration
of this Agreement,
Eclipsys shall no longer be obligated to provide any
Services to Licensee and Licensee shall immediately cease using
(and shall ensure that all Licensed Users cease using), and
return to Eclipsys if practicable, and otherwise certify to
Eclipsys de-installation and non-use of, all Software and
Documentation.
Licensee’s obligations pursuant to Article 2 of this Agreement
and Licensee’s duty to pay any fee owed to Eclipsys prior to
termination, shall survive any termination or expiration of this
Agreement.
In addition, Sections 7.3, 7.4 and
Article 9 will survive any termination of this Agreement.
Licensee, upon termination or expiration of
this Agreement,
shall be provided with a
“Read-Only” version of the patient files processed with the
Software during the term of the License.
Article 7.
WARRANTIES,
LIMITATION OF LIABILITY.
7.1.
Limited Warranty;
Disclaimer of Other Warranties, Express or Implied.
7.1.1.
Eclipsys warrants
that it has the power and authority to license the Software to
Licensee as set forth herein.
7.1.2.
Eclipsys warrants that the Software shall,
during the term of the Agreement, perform substantially in
accordance with the Documentation when used on the recommended
hardware configuration and in accordance with the directions for
use set forth in the Documentation, provided that Eclipsys ’s
liability for breach of such warranty shall be limited as set
forth in this Agreement.
THIS EXPRESS WARRANTY IS GIVEN IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
7.1.3.
The warranties set
forth in this section shall not apply: (i) if the Software is
not used in accordance with the Documentation; (ii) to any
modification of the Software not performed by Eclipsys; (iii) to
the extent that the defect is caused by or is contributed to by
Licensee or (iv) if the defect arises out of a third-party
software malfunction.
7.1.4
Eclipsys does not warrant Third
Party Software products or equipment distributed by Eclipsys;
the manufacturers of such Third Party Software or equipment may
provide warranties thereto, and such warranties, if any, may
accompany such products.
Eclipsys
shall assign to Licensee any and all
warranties received from the manufacturer of the equipment and
shall (i) use commercially reasonable efforts to ensure that
such third party warranties are validated, (ii) at Customer’s
request, act as Customer’s agent in pursuing any claims pursuant
to such third party warranties.
Licensee shall notify Eclipsys in
writing within 10 days of its discovery that a Third Party
Software product or item of equipment does not conform with its
warranty, and Eclipsys
shall thereupon use commercially
reasonable efforts, consistent with industry standards, to
obtain the repair or replacement of the nonconforming item with
product that conforms to the warranty.
7.2.
Regulatory Compliance.
The Software will include such
features and functionality to allow Client to comply with HIPAA
and the requirements of any regulations promulgated thereunder,
including without limitation the federal privacy regulations as
contained in 45 C.F.R. Part 164 (the “Federal Privacy
Regulations”), the federal security standards as contained in 45
C.F.R. Part 142 (the “Federal Security Regulations”), the
federal transaction standards as contained in 45 C.F.R. Parts
160 and 162 (the “Federal Transaction Regulations”) that are
applicable to the Software by the timeframe mandated by HIPAA.
Eclipsys shall immediately notify
Licensee of any change in the status of the representation,
covenant and warranty set forth in this Section 7.2 or if an
investigation is commenced by federal or state governmental
agencies involving any law or regulation specified in this
Section 7.2.
Both parties agree to comply with
and abide by HIPAA regulations with respect to any patient
records or information contained in, derived or processed by the
Software and made available to the parties in connection with
the performance of their obligations and duties hereunder.
7.3.
Disclaimer of
Warranties and Limitations of Liability.
7.3.1.
EXCEPT FOR
THE LIMITED WARRANTIES CONTAINED IN SECTIONS 7.1.1, 7.1.2 AND
7.2, THE SOFTWAREAND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL
FAULTS.”
ECLIPSYS
DISCLAIMS ALL OTHER WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SOFTWARE,
DOCUMENTATION OR ANY SERVICES PROVIDED BY ECLIPSYS, INCLUDING
BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, LACK OF VIRUSES, AND
NON-INFRINGEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY
LAW,
EXCEPT AS PROVIDED IN SECTIONS 7.1.1, 7.1.2
AND 7.2, ABOVE, ECLIPSYS MAKES NO REPRESENTATION, WARRANTY OR
GUARANTY RELATING TO THE SUITABILITY, RELIABILITY, AVAILABILITY,
TIMELINESS, QUALITY, ACCURACY, OR COMPLETENESS OF THE SOFTWARE,
SERVICES, ANY DATA, INFORMATION, RECORD, OR RESULTS OBTAINED
THROUGH OR RESULTING FROM THE USE OF THE SOFTWARE OR THE
ACCURACY OF THE INFORMATION OR OTHER CONTENT, FOR ANY PURPOSE.
7.3.2.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ECLIPSYS’S LIABILITY TO
LICENSEE ARISING FROM THIS AGREEMENT, THE ACCEPTANCE OF
SERVICES,
OR THE USE OF THE SOFTWARE, SHALL BE LIMITED TO LICENSEE’S
DIRECT DAMAGES, AND
IN NO EVENT
WILL ECLIPSYS BE LIABLE FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS
ACTUALLY RECEIVED BY ECLIPSYS FROM LICENSEE PURSUANT TO THIS
AGREEMENT.
7.3.3.
LICENSEE HEREBY ACKNOWLEDGES THAT ECLIPSYS
SHALL NOT BE LIABLE TO THE LICENSEE, ANY LICENSED USERS OR ANY
OTHER PERSON FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO
EMOTIONAL, SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN AN
ACTION BASED UPON CONTRACT, EQUITY, STRICT LIABILITY, TORT
(INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY (INCLUDING
BREACH OF WARRANTY) ARISING OUT OF OR IN ANY WAY CONNECTED WITH
OR RELATING TO THE USE OR PERFORMANCE OF OR INABILITY TO USE THE
SOFTWARE OR ANY ERROR, OMISSION OR INACCURACY CONTAINED IN, ANY
DATA, INFORMATION, RECORD OR RESULTS OBTAINED THROUGH OR
RESULTING FROM THE USE OF THE SOFTWARE OR FROM ANY LOSS OR
CORRUPTION OF DATA, EVEN IF ECLIPSYS
HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
7.3.4.
IN NO EVENT SHALL ECLIPSYS BE LIABLE FOR DAMAGES FOR LOSS OF
USE, FOR DELAY, LOSS OF BUSINESS, LOSS OF REVENUE, PROFITS OR
SAVINGS, BUSINESS INTERRUPTION LOSS, LOSS OR CORRUPTION OF
INFORMATION OR DATA, LOSS OF PRIVACY, AND LOSS OF GOODWILL, AND
LIABILITY TO THIRD PARTIES, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH OR RELATED TO THE USE OR PERFORMANCE OF OR
INABILITY TO USE THE SOFTWARE OR ARISING OUT OF OR IN ANY WAY
CONNECTED WITH OR RELATING TO THE
SERVICES
OR THE USE OR INABILITY TO USE ANY DATA, INFORMATION,
RECORD OR RESULTS OBTAINED THROUGH OR RESULTING FROM THE USE OF
THE SOFTWARE, ANY LOSS OR CORRUPTION OF DATA, OR ARISING FROM
ANY FAILURE TO MEET ANY DUTY.
7.4.
Limitation of
Action.
Except for actions for non-payment,
HIPAA violations or breach of either party’s intellectual
property rights, no action (regardless of form) arising out of
this Agreement may be commenced by either party more than two
(2) years after the cause of action has accrued.
Article 8.
DEFAULT PROVISIONS
8.1.
Default.
A “Default” under the Agreement will be deemed to have occurred
upon any of the following:
8.1.1.
Licensee fails to
make any of the payments specified hereunder within forty-five
(45) days after the same becomes due and payable, provided that
Eclipsys shall have provided Licensee with at least thirty (30)
days written notice and the amounts remain unpaid at the end of
such period;
8.1.2.
Either
party commits a material breach of this Agreement and fails to
cure such breach within ninety (90) days after it receives
written notice of breach; and
8.1.3.
Either
party ceases business as a going concern, make an assignment for
the benefit of creditors, or file or has filed against it a
petition for bankruptcy
8.2.
Remedies.
If Licensee is in Default, Eclipsys
may concurrently or separately, and without any election of
remedies to be deemed made, (i)
accelerate the
License payments and any additional amounts due as of the date
of default hereunder, and/or (ii) terminate the Agreement
pursuant to Section 6.2 of the Agreement.
If Eclipsys is in Default, Licensee
may terminate the Agreement pursuant to Section 6.2 of the
Agreement.
Article 9.
GENERAL PROVISIONS.
9.1.
Independent
Contractor.
Eclipsys and Licensee shall at all
times be independent contractors, and neither Eclipsys
nor Licensee shall be deemed for any
purpose to be partners, joint venturers, fiduciaries, employers,
employees or agents of one another.
9.2.
No Benefit to
Others.
The representations, warranties,
covenants, and agreements contained in this Agreement are for
the sole benefit of the parties and their respective successors
and permitted assigns, and they are not to be construed as
conferring any right on any other persons.
9.3.
Export Control Laws.
Each party shall comply with all
United States and foreign export control laws or regulations
applicable to its performance under this Agreement.
9.4.
Counterparts.
This Agreement may be executed in
counterparts, which taken together shall form one legal
instrument.
9.5.
Rights to
Injunctive Relief.
Both parties acknowledge that the
remedies at law may be inadequate to provide Eclipsys or
Licensee with full compensation in the event of Licensee’s or
Eclipsys’s material breach of any provisions of this Agreement
concerning confidentiality or limitations on the license of the
Software and the use of the Software and that Eclipsys or
Licensee shall therefore be entitled to seek injunctive or other
equitable relief, including specific performance in the event of
any such material breach.
This includes, but is not limited to
each of the provisions of Article 2 of this Agreement.
9.6.
Rules and
Regulations.
Licensee agrees to secure any
necessary authorizations and to comply with all applicable rules
and regulations governing the Services provided pursuant to this
Agreement including, without limitation, rules governing record
retention, non-discrimination, and error resolution as
promulgated by Eclipsys [and any applicable insurance carriers]
as amended from time to time.
Licensee shall also adhere to such
laws, rules, and regulations as are required by governmental
agencies having jurisdiction over Eclipsys or Licensee.
Licensee shall provide all
supporting documents requested by Eclipsys necessary to comply
with such laws, rules, and regulations.
9.7.
Indemnification.
Licensee shall indemnify Eclipsys
against all third-party claims, liabilities and costs (including
reasonable attorneys’ fees) reasonably incurred in the defense
or prosecution of any claim (other than for infringement of
intellectual property rights asserted against Eclipsys ) arising
out of Licensee’s, its agents’, employees’, independent
contractors’, or consultants’ unauthorized use and/or use of the
Software in a manner inconsistent with the Documentation,
provided that Eclipsys promptly notify Licensee in writing of
such claims. Eclipsys grants Licensee full authority to control
the defense or prosecution and settlement of any such claim;
provided that Licensee may not enter into any settlement or
compromise without the prior written approval of Eclipsys.
Licensee further agrees to indemnify
Eclipsys in respect of any claims brought by third parties
against Eclipsys in connection with Licensee’s failure to comply
with and abide by HIPAA requirements as specified in Section 7.2
hereof.
9.8.
Governing Law;
Submission to Jurisdiction; Forum Selection The validity, construction, interpretation, and
performance of this Agreement shall be governed by and construed
in accordance with the laws of the State of Iowa except as to
its principles of conflicts of laws.
The parties hereto irrevocably
submit to the exclusive jurisdiction and venue of the courts of
the State of Iowa to resolve any disputes between them which are
not subject to arbitration, if any, arising hereunder or related
hereto, and hereby further irrevocably waive any claim that such
suit, action or proceeding in any court has been brought in an
inconvenient forum. Any suit allowed to be brought pursuant to
the terms of this Agreement shall be brought solely in the Iowa
District Court for Polk County in Des Moines, Iowa.
9.9.
Waiver of Breach.
No waiver of breach or failure to
exercise any option, right, or privilege under the terms of this
Agreement on any occasion or occasions shall be construed to be
a waiver of the same or any other option, right, or privilege on
any other occasion.
Other than as expressly stated
herein, the remedies provided herein are in addition to, and not
exclusive of, any other remedies of a party at law or in equity.
9.10.
Waiver of Jury
Trial.
Each party, as a condition of its
right to enforce or defend any right or in connection with this
Agreement, waives any right to a trial by jury in any action to
enforce or defend any right under this Agreement and agrees that
any action shall be tried before a court and not before a jury.
9.11.
Waiver of Class
Action Lawsuits and Participation.
To the maximum extent permitted by
law, Licensee agrees that it will not bring, request, join or
participate in a class action as to any claim, demand, suit or
cause of action it may have against Eclipsys, and the Licensee
waives and relinquishes any right which it may now or in the
future have to bring, request, join or participate in any
lawsuit or other proceeding on a class action or consolidated
basis or to participate as a representative or member of any
class of claimants pertaining to any claim, demand, suit or
cause of action relating to this Agreement or the Software. This
provision does not constitute a waiver of any of the Licensee’s
rights and remedies to pursue a claim individually, and not on a
class action or consolidated basis or as a representative or
member of any class of claimants.
9.12.
Dispute Resolution.
If a dispute arises out of or
relates to this Agreement, or the breach thereof, the parties
agree to submit the dispute to a mediator selected by the
parties or, if the parties are unable to agree on a mediator,
the parties agree to submit the dispute to mediation in Des
Moines, IA under the rules of the American Arbitration
Association (“AAA”).
The mediation rules of the AAA shall
govern any dispute between the parties to this Agreement
submitted to mediation.
If the dispute is not resolved
through mediation, then the mediator shall declare that the
parties are at an impasse and the mediator will refer the
dispute to an arbitrator agreed upon by the parties within 90
(ninety) days after the mediator declares an impasse.
If the parties are unable to agree
on an arbitrator, then the mediator will refer the dispute to
the AAA, which shall select the arbitrator.
The arbitrator shall promptly
disclose to the parties any relationship which the arbitrator
has had with any of the parties or their counsel and failure to
make such disclosure shall be grounds for disqualifying the
arbitrator and setting aside any arbitration award.
The arbitration rules of the AAA
shall govern the arbitration of any dispute between the parties
to this Agreement submitted to arbitration to the extent they
are not inconsistent with this Agreement.
The arbitration shall be conducted
in Des Moines, IA.
9.12.1.
Any resolution
reached through mediation or award arising out of arbitration
(i) shall be limited to a holding for or against a party, and
affording such monetary remedy as is provided by law and as
limited by the terms of this Agreement; (ii) may in appropriate
circumstances include injunctive relief; and (iii) may be
entered in court in accordance with the United States
Arbitration Act.
9.12.2.
Arbitration shall not be deemed a waiver of
any right to termination under this Agreement and the arbitrator
shall not be empowered to act or make any award other than based
solely on the rights and obligations of the parties prior to and
including such termination.
The arbitrator may not limit, expand
or otherwise modify the terms of this Agreement.
9.12.3.
Each party shall bear its own expenses
incurred in any mediation, arbitration or litigation, but any
expenses related to the compensation and the costs of any
mediator or arbitrator shall be borne equally by the parties.
A request by a party to a court for
interim measures necessary to preserve a party’s rights and
remedies for resolution pursuant to this Section shall not be
deemed a waiver of the obligation to mediate; or agreement to
arbitrate.
The parties, other participants and
the mediator or arbitrator shall hold the existence, content and
result of mediation or arbitration in confidence.
9.13.
Assignment.
The Parties may not assign their
rights, obligations, duties or privileges under this Agreement
without the prior written consent of the other Party, which
consent shall not be unreasonably withheld, except that Eclipsys
may assign this Agreement or all of its rights, obligations,
duties or privileges under this Agreement without consent to any
parent, affiliate, successor corporation, or in connection with
the merger, sale of a controlling interest or the sale of all,
or substantially all, of the assets of Eclipsys.
9.14.
Entire Agreement;
Oral Modifications Void.
This Agreement, and the Exhibits
attached hereto contain the entire agreement between Eclipsys
and Licensee relating to the subject matter hereof.
No representative of Eclipsys or any
affiliate thereof has any authority to make any oral
modifications to this Agreement.
Licensee warrants and represents that in
entering into this Agreement, it has not relied upon any
representations made by or on behalf of Eclipsys not expressly
contained in writing in this Agreement. No amendment,
modification or waiver of this Agreement shall be effective
unless the same is in writing and signed by a duly authorized
representative of the party against which such amendment,
modification or waiver is asserted.
9.15.
Severability.
If any of the provisions of this
Agreement shall be invalid or unenforceable under the laws of
the jurisdiction where enforcement is sought, such invalidity or
unenforceability shall not invalidate or render unenforceable
the entire Agreement, but rather a valid and enforceable
provision as similar as possible in application to the invalid
or unenforceable provision shall be deemed substituted in lieu
thereof, and the rights and obligations of Eclipsys and Licensee
shall be construed and enforced accordingly, with the remaining
terms, provisions, covenants and restrictions of this Agreement
to remain in full legal force and effect in accordance with
their provisions.
The headings used in this Agreement
are for convenience only and shall not be used in interpreting
or construing the meaning of this Agreement.
The parties acknowledge that each of
them has contributed to the creation of this Agreement and this
Agreement shall not be construed or interpreted against either
party as the drafter of this Agreement.
9.16.
Exhibits.
The Exhibits attached hereto are a
material part of this Agreement and are incorporated herein by
this reference as if fully written in this Agreement.
9.17.
Notice to
Government Users.
This Software and the documentation
are provided with “Restricted Rights” applicable to private and
public licenses alike. Without limiting the foregoing, use,
duplication, or disclosure by the United States Government is
subject to restrictions as set forth in this Agreement and as
provided in Federal Acquisition Regulation §§ 52.227-19, and
52.227-14, § 227.7202 of the Defense Federal Acquisition
Regulation Supplement, and other applicable provisions of the
Federal Acquisition Regulations.
9.18.
Notices.
All notices, demands, or other
communications of the parties hereunder shall be deemed to have
been duly given when made in writing and delivered in person, or
shall be deemed to be delivered upon receipt if sent either (i)
by certified mail, return receipt requested, or (ii) by Federal
Express or other overnight courier, in each case to the
addresses of the parties reflected below each party’s signature
hereto, or (iii) facsimile.
Notices shall be deemed to have been
given upon: (i) personal delivery, (ii) the second business day
after mailing, (iii) 48 hours after sending by confirmed
facsimile.
Either party may change the address
for giving notices by delivering notice in the manner set forth
in this section.
9.19.
Privacy.
To the extent Licensee has any
occasion to use the
https://edu.medinotes.com
website (the “Site”), all such interactions shall be governed by
the privacy policy posted the Site and incorporated herein by
reference.
9.20.
Records.
Pursuant to 42 U.S.C. 1395x(v)(1),
Eclipsys will maintain a copy of this Agreement and such records
as are necessary to certify the nature and extent of the costs
of the services provided by Eclipsys .
Such records shall be maintained by
Eclipsys following termination of this Agreement for any period
required by Centers for Medicare & Medicaid Services, the U.S.
Department of Health and Human Services, and/or the U.S.
Comptroller General and shall be made available, upon written
request, to these entities, or any of their duly authorized
representatives.
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