End User License Agreement
THIS IS AN AGREEMENT BETWEEN YOU (“YOU” OR “THE LICENSEE”) AND EMARNEEK [SOFTWARE COMPANY] (“LICENSOR”). BY CLICKING ON THE “I ACCEPT” BUTTON, YOU AGREE TO THE TERMS SET FORTH IN THIS END USER LICENSE AGREEMENT (“AGREEMENT”). IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE CLICKING ON “I ACCEPT.” IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CLICK ON “I ACCEPT” AND DO NOT DOWNLOAD OR USE THE SOFTWARE (AS DEFINED HEREIN). YOU ARE ENCOURAGED TO PRINT THIS AGREEMENT NOW SO THAT YOU MAY REVIEW IT BEFORE PROCEEDING AND SO THAT YOU MAY HAVE A COPY FOR YOUR FILES.
SECTION 1. LICENSE
1.1. License Grant. Licensor grants to Licensee and Licensee accepts from Licensor for the duration of the term of this Agreement a non-exclusive, revocable, non-sublicensable and non-transferable license under Licensor’s copyrights (the “License”) in the United States for the term of this Agreement to download, install and use the machine-code version of the software together with any related technical specification documentation provided by Licensor (the “Documentation”) (together, the “Software”) on a single computer. If you are a Pharmacy, your license is limited to the following activities: (i) connect the Pharmacies’ Records and systems with the Interface and eMARneek Software (Software); and (ii) permit the Pharmacies to use whatever components of Software that are capable of being utilized through the Interface solely for purposes relating to the Pharmacies’ provision of services to the Facilities, including, without limitation, any information that may be transmitted from Software to the Pharmacies.
1.2. Title. Subject only to the License, Licensor shall retain all right, title and interest, including all patent rights, copyrights and trademarks, in and to the Software and all derivative works.
1.3. Backup Copies. In addition to copies made pursuant to installation under Section 1.1 above, Licensee may make a copy of the Software for backup and archival purposes. Licensee must reproduce and include the copyright and trademark notices and any other notices that appear on the original Software on all copies, including backup and archival copies, and any media therefore.
1.4. Restrictions. Except as otherwise expressly permitted herein, Licensee and its principals, agents and employees shall not (and shall not allow any third party) to: (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software by any means whatsoever, (ii) remove any product identification, copyright, trademark or other notices, (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, including but not limited to entities with which the Licensee or the principals of the Licensee are affiliated in any way, (iv) modify, or, except to the extent expressly authorized herein, incorporate into or with other software or create a derivative work of any part of the Software, (v) disseminate information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Software from any source, without prior written authorization by Licensor, or (vi) use the output or other information generated by the Software (including, without limitation, output describing the structure of a software program) for any purpose other than use by the Software in accordance with its specifications, or (vii) share the application in a client/server or networked environment.
SECTION 2. NO WARRANTY
THIS SOFTWARE IS PROVIDED BY LICENSOR “AS-IS” AND WITH ALL FAULTS ACCEPTED, WITH NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND. NO DEALER, AGENT OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS SECTION. LICENSOR MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE OR OTHER MATERIALS PROVIDED BY LICENSOR. LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERMISSIBLE DURATION. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE.
SECTION 3. SUPPORT AND MAINTENANCE
3.1. Support. During the period beginning on the date of installation and ending with the termination of this license agreement (the “Support Period”), and provided Licensee and/or Pharmacy has paid the applicable fees (if any), Licensor shall provide support in accordance with Licensor’s then-current policies. Any patches, updates, etc. provided as part of Software maintenance shall be included within the definition of Software for the purposes of this Agreement to the extent made available by Licensor. Licensor will not charge for this support, however Licensor reserves the right to charge if the demand for support becomes unreasonable.
3.2. Renewals. Licensor’s obligation to provide the above-described support and maintenance and Licensee’s and/or Pharmacy’s obligation to pay the then-current applicable subscription fee shall renew automatically at the end of the Support Period, unless either Licensee or Licensor has given the other party prior written notice of cancellation at least thirty (30) days prior to the expiration of the Support Period. If Licensee elects not to renew support and maintenance for successive terms, Licensee may reenroll only upon payment of the applicable fee.
3.3. Training. Upon Licensee’s request, Licensor will provide training to Licensee in accordance with Licensor’s then current training offerings and at Licensor’s then current prices at mutually agreed upon times and locations. In the event training services are provided at locations other than at Licensor’s premises, Licensee shall be responsible for all travel, meals, hotel and other associated expenses related to providing such training services.
3.4. Beta Site. Licensee has the option, if requested by Licensor, to participate in beta testing of subsequent releases of the Software and to provide feedback on functionality, interoperability, security and other performance metrics as Licensee may reasonably request.
SECTION 4. FEES; PAYMENT TERMS.
4.1 License and Services Fees. The monthly fee for the License granted by the EULA and the Services (the “Fees”) shall be calculated per Active Resident living in an Electing Facility during such month for which eMARneek has been utilized to manage their care, including but not limited to medication administration as detailed in pricing table below. “Active Resident” defined to mean, any individual listed in the eMARneek Software database for whom the eMARneek Software has been utilized for medication administration and/or management. If no medications are managed at the facility using eMARneek Software then a secondary definition of Active Resident will apply, based on which software modules are put into use. If modules other than the eMAR module are activated in the eMARneek Software then any resident that is designated Active, as defined in the software, on the last day of the billing period in the eMARneek Software will be considered an Active Resident. Fees shall be based on the current pricing table and/or agreement between eMARneek and Pharmacy and/or Licensee. For a copy of the current pricing table contact firstname.lastname@example.org.
4.2 General. The Fees shall not include taxes or duties of any kind levied by federal, state, municipal or other governmental authority which either eMARneek or Pharmacy is required to pay with respect to the License and Support.
4.3 Payment Terms. eMARneek shall submit a detailed invoice to Licensee and/or Pharmacy for all Fees, Installation and Training Charges and/or Transfer Charges within 10 days after the end of each month. Pharmacy and/or Licensee shall remit payment within 30 days of the invoice date. eMARneek shall apply payments from Pharmacy and/or Licensee to the invoices specified by Pharmacy.
SECTION 5. TERM AND TERMINATION.
5.1. Term. This Agreement shall commence on the Effective Date, and shall continue until terminated as provided herein.
5.2. Termination. Licensor may terminate this Agreement (a) for cause if Licensee and/or Pharmacy fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach or (b) immediately in the case of a breach of Section 1.4. Sections 1.2, 1.4, 2, 4, 6, 7, and 8 shall survive termination. Upon such termination for breach, Licensee shall immediately cease all use of the Software and return or destroy all copies of the Software and all portions thereof and so certify to Licensor. Termination is not an exclusive remedy, and all other remedies will be available whether or not this Agreement is terminated.
SECTION 6. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (i) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO LICENSOR BY LICENSEE WITH RESPECT TO THE COPIES OF SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE MONTH PERIOD PRIOR TO ACCRUAL OF THE CAUSE OF ACTION; (ii) FOR ANY SPECIAL,PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS); (iii) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.
SECTION 7. RIGHT TO AUDIT
On Licensor’s written request Licensee shall furnish Licensor with a signed certification certifying that the Software is being used pursuant to the terms of this Agreement including any copy and user limitations. With prior reasonable notice, Licensor may audit the copies of the Software in use by Licensee provided such audit is during regular business hours. In the event the audit reveals a material discrepancy on the part of Licensee, Licensee shall pay Licensor then current License fee for the number of licenses reflected in the discrepancy and maintenance for any unauthorized use of the Software.
SECTION87. GENERAL PROVISIONS
8.1. Cumulative Remedies. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
8.2. Governing Law. This Agreement shall be governed in all respects by the substantive laws of the State of Indiana, United States of America (excluding conflict of laws rules) as applied to agreements entered into and to be performed entirely within the State of Indiana between Indiana residents, without regard to the U.N. Convention on Contracts for the International Sale of Goods. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of and venue within the state or federal courts located in the state of Indiana, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.
8.3. Notices. All notices, statements, and reports required or permitted by this Agreement shall be in writing and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section 7.3; or (iii) when delivered if delivered personally or sent by express courier service.
8.4. Export Restrictions. Licensee understands and acknowledges that certain technology licensed hereunder may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Licensee warrants that it will comply in all respects with the export restrictions applicable to any materials or technology provided hereunder and will otherwise comply with the Export Administration Regulations or other United States laws and regulations in effect from time to time.
8.5. Assignment. Licensee shall not assign or otherwise transfer any of its rights, obligations or licenses hereunder without the prior written consent of Licensor, including any assignment by operation of law as a result of the merger or acquisition of Licensee, and only upon the original Licensee’s fully divesting itself, himself or herself of all possession of the Software and all media and copies thereof. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties.
8.6. Independent Contractor. The relationship created by this Agreement is one of independent contractors, and not partners, franchisees or joint ventures. No employees, consultants, contractors or agents of one party are employees, consultants, contractors or agents of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation, except as expressly set forth herein. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
8.7. Headings. The descriptive headings of this Agreement are intended for reference only and shall not affect the construction or interpretation of this Agreement.
8.8. Severability. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of its being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
8.9. Waiver of Rights. The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance shall continue in full force and effect.
8.10. Entire Agreement; Conflict. This Agreement, together with all Exhibits hereto, and Schedules hereto (if any), constitutes the complete, final and exclusive statement of the terms of the Agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties. No modification or rescission of this Agreement shall be binding unless executed in writing by the party to be bound thereby. In the event of any conflict between the terms and conditions of this Agreement and an Exhibit or Schedule, the terms and conditions of the Exhibit or Schedule shall prevail.
8.11. Force Majeure. Either party shall be excused from any delay or failure in performance hereunder, except the payment of moneys by Licensee, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, floods, lightning, labor disputes and strikes, other labor or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, rationing, utility or communication failures, casualty, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such party shall give notice of such force majeure event to the other party as soon as reasonably possible.
8.12. Presumptions/Review. In construing the terms of this Agreement, no presumption shall operate in either party’s favor as a result of that party’s counsel’s role in drafting the terms or provisions hereof. Further, it is agreed that Licensee has had a full and fair opportunity to review the terms herein and to consult with legal counsel before clicking on “I Accept.” Accordingly, because Licensee has had ample review opportunities and because Licensee is and was free to elect not to accept these terms, Licensee acknowledges that this is not a contract of adhesion.
8.13. Authority. Each party represents that all corporate action necessary for the authorization, acceptance and delivery of this Agreement by such party and the performance of its obligations hereunder has been taken.
8.14. Legal Expenses. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement will be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.
8.15. Government End-Users. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 2.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
8.16. USE OF THE SOFTWARE IS SUBJECT TO THE TERMS OF THIS LICENSE AGREEMENT. YOU SHOULD NOT DOWNLOAD OR USE THE SOFTWARE UNTIL YOU HAVE READ THIS LICENSE AGREEMENT. BY CLICKING ON “I ACCEPT,” YOU SIGNIFY THAT YOU HAVE READ THIS LICENSE AGREEMENT AND ACCEPT ITS TERMS.