Delivering the Practice of the Future Now

Peak Practice User License Agreement

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.