Payment Terms. Customer will pay to eCareSoft subscription fees for the Service in quarterly installments. eCareSoft will invoice Customer for subscription fees on or about the beginning of each quarter. Customer also will pay eCareSoft’s fees for implementation services and additional services. eCareSoft will invoice Customer for implementation services and additional services upon the commencement of such services, unless otherwise mutually agreed upon by the parties in writing. In addition, when, from time to time, the providers of Third Party Products increase their charges to eCareSoft, eCaresoft hereby reserves the right to pass through to Customer an allocated portion of such increase (determined in eCareSoft’s sole discretion), by giving Customer at least 30 days advance written notice of any change to eCareSoft’s monthly charges, after which Customer will pay the modified quarterly charge. Customer also will reimburse eCareSoft for all reasonable travel and travel-related expenses incurred by eCareSoft in connection with implementation services and additional services provided by eCareSoft. eCareSoft’s charges are exclusive of sales, use, value-added and other taxes. Unless Customer provides a valid exemption certificate, Customer will pay all applicable sales, use, value-added and other taxes imposed by any governmental body or agency upon the Service or any of eCareSoft’s charges. For the avoidance of doubt, eCareSoft will be liable for and pay when due (a) taxes on or measured by eCareSoft’s net income, and (b) taxes related to eCareSoft’s employees. All invoices will be due and payable within 30 days from the invoice date.
Customer Units. If and to the extent eCareSoft’s charges under this Agreement are based, in whole or in part, on per bed, per operating room or similar quantitative factors (“Customer Units”), Customer will report to eCareSoft any changes in the number of Customer Units on a quarterly basis. eCareSoft may request Customer’s confirmation of the then-current number of Customer Units from time to time, and Customer will respond to each such request within 10 business days. Customer will keep full and detailed records relating to the Customer Units. Such records will be made available to eCareSoft or eCareSoft’s authorized representatives for review upon request during normal business hours. Customer will maintain such records during the term of this Agreement and for at least three years thereafter. If as a result of any such review it is determined that Customer has underpaid eCareSoft’s charges under this Agreement, eCareSoft may invoice Customer, and Customer will pay in accordance with this Agreement, such underpayment(s). If any such underpayment is more than 5% of eCareSoft’s total charges for the period in question, Customer also will reimburse eCareSoft for the cost of the applicable review.
Termination of this Agreement. eCareSoft or Customer may immediately terminate this Agreement for cause if: (a) a petition for bankruptcy, corporate reorganization or other proceeding for the relief of debtors under any bankruptcy or similar law is filed by or against the other party; or (b) the other party materially breaches this Agreement and does not cure such material breach within 30 days after receipt of written notice of such breach. For the avoidance of doubt, and without limiting either party’s rights under the preceding sentence, the parties acknowledge and agree that if Customer fails to timely pay any of eCareSoft’s charges in accordance with the payment terms set forth in this Agreement two or more times in any 12 month period, then (i) such occurrence will be deemed a material breach of this Agreement, and (ii) eCareSoft may, at eCareSoft’s sole option and discretion, suspend or reduce Customer’s access to and use of the Service.
If customer elects to terminate the agreement before the end of the initial term, the customer will pay eCareSoft all due and outstanding amounts, as well as any amount that has not become due, the due date which will be automatically accelerate to the date of the date of the expiration or termination of this agreement.
Customer will cease all use of the Service, and return to eCareSoft all manuals and documentation for the Service, upon the expiration or termination of this Agreement for any reason.
Use of the Service.
Customer will use the Service only as set forth in this Agreement. Customer understands and agrees that eCareSoft is providing, and Customer will be using, the Service “AS IS.” Customer is responsible for using the Service and the reports and other data created in, available from and/or generated by the Service, and for determining whether the Service and those data and reports are suitable for Customer’s purposes. Customer is responsible for determining whether Customer will use all or selected elements of the Service (provided that no discount or rebate of eCareSoft’s fees will be made if Customer elects not to use one or more elements of the Service). Customer is responsible for confirming that eCareSoft’s backup and recovery procedures are adequate for Customer’s purposes. Customer acknowledges that the Service is provided over the Internet or other public networks, over which eCareSoft maintains no control, and that substantial risks, including loss and corruption of data, delays, non-deliveries, mis-deliveries, and service interruptions, are associated with the reception, transmission, storage, manipulation, and other uses of data over those networks. Customer acknowledges and accepts all risks of dependence upon or use of data received, transmitted, accessed, stored or managed by the Service. Customer agrees to ascertain, implement, and take all appropriate or necessary precautions to protect itself from losses and damages associated with such risks.
Customer will cause all of its personnel who access the Service from time to time to agree to abide by eCareSoft’s policies and terms by clicking “I agree” where indicated in the Service from time to time. Customer will be responsible for ensuring adherence by its personnel to all such policies and terms.
The Service, including any information, databases and Third Party Products provided or incorporated therein, does not endorse or recommend treatments or drugs, or diagnose patients. The Service is designed to supplement, and not a substitute for, the expertise, skill, knowledge and judgment of healthcare practitioners. Healthcare practitioners should use their professional judgment in using the information provided in and through the Service. Such information is not intended to cover all possible uses, directions, precautions, warnings, drug interactions, allergic reactions, or adverse effects. The absence of a warning for a given treatment, drug or combination thereof in no way should be construed to indicate that the treatment, drug or combination thereof is safe, effective or appropriate for any given patient.
Implementation. In order to receive full benefit of the Service, Customer’s users must be trained in the use of the Service, including both initial system training and periodic updates, and Customer is responsible for ensuring that its users attend such training. Customer will designate one person (and a back-up) to serve as its point of contact for the Service. Customer acknowledges that certain locally active security settings and installed software (including anti-spam, anti-virus, pop-up blocker, and other similar software) can interfere with the Service or prevent the delivery of notifications from the Service, and that eCareSoft has no control over these user-installed programs and settings. Customer also acknowledges that eCareSoft’s ability to complete the implementation of the Service is dependent upon Customer’s active participation and performance of certain tasks as set forth in eCareSoft’s implementation documentation.
Service Levels. After the implementation of the Service for Customer, eCareSoft will provide the Service in a manner consistent with eCareSoft’s published service levels, as modified by eCareSoft from time to time.
Customer’s Data. In order to use the Service to generate data and reports, Customer will be required to upload onto eCareSoft’s servers the data indicated in the usage instructions for the Service. eCareSoft will respect Customer’s proprietary rights in Customer’s data. eCareSoft will use commercially reasonable efforts to safeguard the confidentiality of Customer’s data. eCareSoft will cause its employees and agents who have access to Customer’s data to comply with this Agreement. By uploading Customer’s data to eCareSoft’s servers, Customer agrees that, subject to applicable laws, rules and regulations, eCareSoft may aggregate Customer’s data, on a non-attributed basis and without disclosing any personally identifiable information, with similar data eCareSoft receives from other eCareSoft customers in order to create benchmarking data and reports to be shared with eCareSoft’s customers and business partners.
Feedback regarding the Service. From time to time, Customer may provide, or eCareSoft may request, Customer’s feedback regarding the features, functionality and operation of the Service. Customer’s feedback may take various forms, including bug reports, conferences with eCareSoft’s representatives and written evaluations. eCareSoft may incorporate any or all of such feedback into future versions or releases of the Service or into new products. eCareSoft will own all title, copyright and other proprietary rights in any changes, enhancements or corrections eCareSoft make to the Service, and any new products eCareSoft create, as a result of Customer’s feedback, including the right to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use Customer’s feedback, for any and all purposes.
Customer Lists. Customer agrees that eCareSoft may list Customer as a customer, and display Customer’s logo in eCareSoft’s list of customers, on eCareSoft’s website and in eCareSoft’s other marketing materials. eCareSoft also may request from time to time that Customer collaborate with eCareSoft as a reference customer. Customer also will provide input on eCareSoft’s case studies or other materials describing Customer’s use of the Service as reasonably requested by eCareSoft from time to time. eCareSoft may use, publish and distribute those case studies and materials, and disclose them to third parties, as part of eCareSoft’s marketing and sales resources, provided that eCareSoft will not disclose any of Customer’s confidential information in any such case studies or materials without Customer’s prior consent.
eCareSoft’s Proprietary Rights. Customer agrees that eCareSoft has and will keep title, copyright and all other proprietary rights in the Service. Customer will cause Customer’s employees and agents who have access to the Service to comply with this Agreement. Customer will not claim or assert title to or ownership of the Service, any version or release of the Service, or any modifications to the Service. Customer have no right to access, use, examine or recreate the source code for the Service, which is eCareSoft’s trade secret. Customer will not reverse engineer the Service.
eCareSoft’s Warranties for the Service. eCareSoft warrants that the Service will perform substantially in accordance with the technical documentation for the Service provided by eCareSoft to Customer. Customer’s sole remedy for any breach of the foregoing warranty will be the repair or correction of any breach of such warranty. ECARESOFT DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Intellectual Property Matters. eCareSoft will defend Customer and hold Customer harmless if a third party brings a claim against Customer alleging that the Service violates that third party’s U.S. intellectual property rights.
LIABILITY MATTERS. ECARESOFT WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR INDIRECT, INCIDENTAL, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA OR OTHER BUSINESS OR PROPERTY DAMAGE) UNDER ANY THEORY OR CAUSE OF ACTION, EVEN IF FORESEEABLE. ECARESOFT’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ALL EVENTS WILL NOT EXCEED THE FEES THAT CUSTOMER HAS PAID PURSUANT TO THIS AGREEMENT DURING THE PRECEDING 12 MONTHS. CUSTOMER ACKNOWLEDGES THAT: (I) ECARESOFT IS NOT AN INSURANCE COMPANY; (II) BUSINESS INTERRUPTION INSURANCE, INTELLECTUAL PROPERTY INFRINGEMENT INSURANCE, AND OTHER INSURANCE COVERAGES ARE AVAILABLE FOR PURCHASE BY CUSTOMER; AND (III) ECARESOFT’S FEES FOR THE SERVICE WOULD BE SUBSTANTIALLY HIGHER IF ECARESOFT WERE TO AGREE TO UNDERTAKE OBLIGATIONS AND LIABILITIES IN ADDITION TO OR GREATER THAN THOSE THAT ECARESOFT HAS EXPRESSLY UNDERTAKEN IN THIS AGREEMENT.
Unforeseen Events. Neither party will be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, Internet infrastructure failure or power failure. In the event of such delay, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome the effect of any such delay.
Dispute Resolution. Any legal proceeding arising out of or related to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced only in any state or federal court located in the State of Texas, U.S.A. (the “Texas Courts”). Each party: (i) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Texas Courts; (ii) agrees that the Texas Courts will be deemed to be a convenient forum; and (iii) agrees not to assert (by way of motion, as a defense or otherwise), in any such legal proceeding commenced in any Texas Court, any claim that such party is not subject personally to the jurisdiction of such court, that such legal proceeding has been brought in an inconvenient forum, that the venue of such legal proceeding is improper or that this Agreement or the subject matter of this Agreement may not be enforced in or by such court.
Export Controls. Customer will not use, transfer or otherwise export the Service outside of the United States. Customer will comply with all export laws and regulations applicable to Customer’s use of the Service.
Assignment. Neither party may assign, sublicense or transfer any of its respective rights under this Agreement without the other party’s prior written consent, and any attempt to do so is void. Furthermore, upon any “change of control” of Customer, Customer’s obligation to pay for the Service, and any additional services then in effect, during the then-remaining term of this Agreement shall remain in full force and effect. Customer may request eCareSoft’s consent to assign this Agreement in the event of any change of control to a successor in interest of equivalent creditworthiness, which consent shall not be unreasonably withheld. As used in this Section, a “change of control” means: the sale or disposition of all or substantially all of the Customer’s assets (or consummation of any transaction, or series of related transactions, having similar effect); that Customer is party to a merger or consolidation, or series of related transactions, which results in the voting securities of the Customer outstanding immediately prior thereto failing to continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving or another entity) at least fifty (50%) percent of the combined voting power of the voting securities of Customer or such surviving or other entity outstanding immediately after such merger or consolidation; the dissolution or liquidation of Customer; or any transaction or series of related transactions that has an effect substantially similar to any one or more of the foregoing.
Meaningful Use. eCareSoft does not and will not warrant or guarantee that Customer will achieve “meaningful use” of electronic health records technology (as defined in the Health Information Technology for Economic and Clinical Health (HITECH) Act and the rules and regulations issued thereunder), nor that the U.S. Department of Health and Human Services or any other government agency or private body will certify or approve Customer’s achievement of “meaningful use.” Customer is solely responsible for assessing and certifying to the applicable agencies and bodies whether Customer has achieved “meaningful use.” Customer will comply with all applicable laws and regulations with respect to assessing and certifying Customer’s achievement of “meaningful use.”
Additional Terms. This is the full and final Agreement between the parties, and supersedes any earlier promises, representations, discussions, correspondence, letters of intent or nondisclosure agreements relating to the subject of this Agreement. This Agreement may only be changed, or any portion of it waived, if Customer and eCareSoft’s authorized representatives do so in writing. Invalid provisions do not affect the enforceability of the other provisions. Each party is entitled to injunctive and other equitable relief for violations of its proprietary rights. Each party reserves all rights not granted specifically in this Agreement. The failure of either party to insist on the strict performance of any terms, covenants and conditions of this Agreement at any time, or in any one or more instances, or its failure to take advantage of any of its rights will not be construed as a waiver or relinquishment of any such rights or conditions at any further time and will in no way affect the continuance in full force and effect of this Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of Texas (U.S.A.). As used in this Agreement, “including” means “including without limitation” unless otherwise specifically indicated. The proprietary rights, confidentiality and limitation of liability provisions of this Agreement will survive the expiration or termination of this Agreement for any reason. The various headings in this Agreement are inserted for convenience only, and will not affect the meaning or interpretation of this Agreement. All notices under this Agreement will be delivered by reputable overnight delivery service or United States Postal Service registered mail, return receipt requested.
