A. “Application” shall mean the specific MedSafe proprietary online application(s) identified in the Service Proposal and Agreement, and as may be further described in the Documentation.
B. “Client” shall mean that party designated in the Service Proposal and Agreement and which has acknowledged receipt of these Terms and Conditions below.
C. “Confidential Information” shall mean any non-public data, information and other materials regarding the products, services or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided to either party by the other party where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The terms and conditions of this Agreement shall constitute Confidential Information. Without limiting the foregoing, the Application, Services, Deliverables, Documentation and all intellectual property, information, software, source code, inventions, ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, processes, and documentation relating thereto constitutes the Confidential Information of MedSafe.
D. “Client Access” shall mean the connection to and use of the Application by Client for use by Named Users of Client (as defined in the Service Proposal and Agreement) via an Internet browser meeting MedSafe’s then-current specifications under the terms and conditions of this Agreement.
E. “Deliverables” shall mean the Services, Documentation and related activities to be provided to Client by MedSafe as set forth in the Service Proposal and Agreement.
F. “Documentation” shall mean user guides, manuals and/or training manuals MedSafe provides to Client in connection with its provision of Services under the Service Proposal and Agreement, whether in hardcopy or electronic or online form.
G. “Effective Date” shall mean the date indicated as the effective date of Service.
H. “Anniversary Date” shall mean the anniversary of the Effective Date of Service.
I. “Named User” shall mean a named or specified (by password or other user identification) individual authorized by Client to use the Application or Documentation, regardless of whether such individual is actively using the same at any given time. A Named User may be internal to the Client organization or external to the Client organization, such as a 3rd party entity (“Service Provider”) as the case may be.
J. “Service Proposal and Agreement” shall mean that certain agreement which identifies the specific products and/or training services purchased by Client.
K. “Services” shall mean the online training, consultant support, project management and related services provided by MedSafe for Client pursuant to and as set forth specifically in the Service Proposal and Agreement.
L. “Term” shall mean the one (1) year period commencing on the Effective Date.
2. License Grant
A. Grant Subject to the terms and conditions of this Agreement, including without limitation the full payment of the Service and License Fee (as defined in the Service Proposal and Agreement) by Client to MedSafe, MedSafe grants to Client a perpetual, nonexclusive, nontransferable limited right and license to (a) use and allow access to the Application and related MedSafe materials for the Named Users, for Client’s internal business purposes only; and (b) use the Documentation in connection with Client’s authorized use of the Application.
B. Restrictions Client shall not itself or through any third party: (i) use any reverse compilation, decompilation or disassembly techniques or other methods to determine any source code, design structure or construction method of the Application or replicate the functionality of the Application for any purpose or create derivative works based on the Application for any purpose; (ii) remove any proprietary notices or labels in or on the Application or Documentation; (iii) reproduce, distribute, transfer, publicly display, resell, lease, sublicense or loan the Application or Documentation to any other party; (iv) use the Application or Documentation for any purpose other than to support Client’s own internal business operations; or (v) allow multiple individuals to utilize the same username and password.
C. Reservation of Rights All rights to the Application and Documentation not specifically granted herein are expressly reserved to MedSafe. Title and copyrights in and to the Application and Documentation and any copies thereof are owned and remain with MedSafe. Client shall obtain no ownership rights, express or implied, or any other rights in the Application and/or Documentation other than those expressly set forth herein.
3. Maintenance & Support
Subject to the terms and conditions of this Agreement, including without limitation the payment of all applicable Project and License Fees, MedSafe shall provide Services during the Term as described herein (“Maintenance”). During MedSafe’s normal business hours (7 a.m. to 6 p.m. ET Monday through Friday excluding United States Federal Holidays).
4. Fees and Payment
A. Fees Client shall pay MedSafe the Project and License Fees set forth in the Service Proposal and Agreement.
B. Payment Terms The Project and License Fees are due and payable beginning on the Effective Date. Payment terms for fees other than the initial payment are due upon invoice date net thirty (30) days. Any payment not made when due shall be late and shall bear interest at a rate of one and one-half (1.5%) per month (or such other amount not to exceed the maximum amount permitted by law) from the first date of such delinquency until payment is made.
C. Taxes All charges and fees listed on the Service Proposal and Agreement exclude taxes and mandated withholdings, if any. If MedSafe is required to pay sales, use, value-added or other taxes resulting from sales made under this Agreement, such taxes will be billed to Client and paid to MedSafe by Client.
A. Limited Warranty MedSafe warrants to Client that it shall use commercially reasonable professional practices in delivering the Services and Deliverables. These warranties extend only to Client. EXCEPT FOR THE LIMITED WARRANTY DESCRIBED IN THIS SECTION, THE APPLICATION, SERVICES AND DELIVERABLES ARE PROVIDED "AS IS" AND MEDSAFE MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY QUALITY. WITHOUT LIMITING THE FOREGOING, MEDSAFE MAKES NO WARRANTY THAT THE APPLICATION, SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES THAT CANNOT BY LAW BE EXCLUDED ARE LIMITED TO NINETY DAYS.
B. Exclusive Remedies For any breach of the Application warranties set forth in Section 5(A) above, Client’s exclusive remedy and MedSafe’s entire liability will be to use commercially reasonable efforts to correct or provide a workaround for any failure in the performance of the Services. If MedSafe is unable to rectify any failure, then Client shall be entitled to a pro-rated refund of the applicable Project and License Fee (calculated based upon straight line depreciation for use over a three year useful life) paid to MedSafe for the period following notification to MedSafe of the nonconformance. For any breach of the Services or Deliverables warranties set forth in Section 5(A) above, Client’s exclusive remedy and MedSafe’s entire liability will be to use commercially reasonable efforts to correct or provide a workaround for Services or Deliverables that cause the breach of warranty. If MedSafe is unable to make the Services or Deliverables perform as warranted within ninety (90) days, Client shall be entitled to a refund of the pro rata amount of fees allocable to such Services as reasonably determined by MedSafe. In order to receive remedies for the Services or Deliverables warranties set forth above, deficiencies in the Services or Deliverables must be reported by Client to MedSafe in writing within thirty (30) days of the delivery of the applicable Services or Deliverables to Client, and such writing must describe with particularity the deficiency claimed.
6. Limitation of Liability
Notwithstanding anything to the contrary in this Agreement, Client agrees that regardless of the form of any claim that may arise related to this Agreement, MedSafe’s entire liability for any damages to Client or to any other party shall not exceed the fees paid to MedSafe under this Agreement for the twelve (12) months prior to the event giving rise to such liability. NEITHER PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY OR A THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS OR LOST REVENUES, ARISING UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, REGARDLESS OF WHETHER THAT PARTY HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
A. Infringement Claims Subject to Section 7(B) below, MedSafe shall defend any third party claim or action against Client to the extent such suit or action is based on a claim that Client’s permitted use of the Application or Deliverables under this Agreement constitutes an infringement of a United States patent, trademark, trade name, trade secret, copyright or other U.S. intellectual property right, and MedSafe will pay those damages and costs finally awarded against Client in any monetary settlement of such suit or action which are specifically attributable to such claim. This indemnity does not apply to any claims based upon use of the Application or Deliverables in violation of this Agreement or in a manner not provided for or described in the Documentation or Deliverables. If any portion of the Application or Deliverables becomes, or in MedSafe’s opinion is likely to become, the subject of a claim of infringement, then MedSafe may, at its option and expense, procure for Client the right to continue using the Application or Deliverables, or replace or modify the affected portion of the Application or Deliverables so that it becomes non-infringing. If neither alternative is reasonably available, MedSafe or Client may terminate this Agreement and Client shall have no further payment obligations hereunder except with respect to accrued fees. THE FOREGOING STATES MEDSAFE’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
B. Infringement Conditions MedSafe’s indemnity obligations under Section 7(A) are contingent upon: (i) Client giving prompt written notice to MedSafe of any such claim; (ii) MedSafe having sole control of the defense or settlement of such claim; and (iii) at MedSafe’s request and expense, Client cooperating in the investigation and defense of such claim(s).
C. Client Indemnification Except to the extent such losses, costs, damages, liabilities and expenses are the result of MedSafe’s acts or the result of the failure of MedSafe’s Application(s), Services, or Deliverable to be provided as set forth in the Service Proposal and Agreement, MedSafe, at its option, may request Client, at its own expense, to indemnify, defend, and hold harmless MedSafe and its subsidiaries, affiliates, officers, employees, and agents from and against any losses, costs, damages, liabilities, and expenses (including reasonable attorneys' fees), arising out of, or related to a third-party claim, action or allegation based on or related to: (i) any transaction or dispute between Client and any third party; (ii) any unauthorized access to the Application through Client's account; (iii) facts or alleged facts that would constitute a breach of any of Client's representations, warranties, or covenants under this Agreement; or (iv) any data or content placed on or used in conjunction with the Application or Services.
8. Confidentiality / Confidential Information
A. Disclosure and Use The Confidential Information disclosed by either party (“Disclosing Party”) to the other (“Receiving Party”) constitutes the confidential and proprietary information of the Disclosing Party and the Receiving Party agrees to treat all Confidential Information of the other in the same manner as it treats its own similar proprietary information, but in no case with less than a reasonable degree of care. The Receiving Party shall use Confidential Information of the Disclosing Party only in performing its obligations under this Agreement and shall retain the Confidential Information in confidence and not disclose to any third party (except as authorized under this Agreement) without the Disclosing Party’s express written consent. The Receiving Party shall disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, and such employees and contractors must be bound by this Agreement or have entered into agreements with the Receiving Party containing confidentiality and non-use provisions covering the Confidential Information with terms and conditions at least as restrictive as those set forth herein.
B. Exceptions Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure; (iv) is approved for release by written authorization of the Disclosing Party; (v) is developed independently by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information; or (vi) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure and reasonably cooperates with the Disclosing Party in limiting such disclosure.
C. Enhancement Information Except as expressly stated otherwise in this Section 8, any information or ideas sent to MedSafe by Client related to enhancements to MedSafe’s products or services will be deemed not confidential, and by sending such information Client hereby grants MedSafe an unrestricted, royalty-free, irrevocable license to use, reproduce, and create derivative works based upon such information.
9. Term & Termination
A. Term This Agreement shall commence on the Effective Date and shall continue for a one year period. It shall renew for a one-year period on each Anniversary Date unless and until terminated in accordance with the terms of this Agreement.
B. Termination Except as specifically provided for in this Section 9(B), this Agreement is not cancelable.
i. This Agreement may be terminated by either party upon thirty (30) days written notice prior to the next Anniversary Date, with effect on the last day of the current term.
ii. This Agreement may be terminated by either party upon sixty (60) days written notice if the other party shall be in breach of any material provision of this Agreement; provided however that the breaching party may avoid termination if, before the end of such 60-day period, the breaching party cures such breach.
C. Effect Upon any termination of this Agreement by MedSafe pursuant to Section 9(B) of this Agreement, or upon any termination by Client other than a termination for MedSafe’s uncured material breach, Client shall be liable for all fees due pursuant to this Agreement, including Project and License Fees for the duration of the Term, payable immediately upon termination. Upon any termination of this Agreement by MedSafe pursuant to Section 9(B) of this Agreement, (i) Client must immediately cease using the Application and Documentation; (ii) all rights to the Application and Documentation granted to Client shall immediately cease; and (iii) Client shall promptly destroy and erase all copies of the Documentation. The following provisions of this Agreement will survive any termination or expiration of this Agreement: Sections 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11.
A. General MedSafe will provide Services on a time and materials basis and based upon the Service Proposal and Agreement. MedSafe shall provide monthly report of hours and Client shall pay for all actual time worked to complete the Services. Services hours shall mean all hours spent related to providing the services contemplated hereunder whether remotely or onsite. MedSafe shall provide such resources and utilize such employees or consultants as it deems necessary to perform the Services. The manner and means used by MedSafe to perform the Services are in the sole discretion and control of MedSafe.
B. Client Responsibilities Client agrees to cooperate fully and in good faith to allow MedSafe to achieve completion of the Services in a timely and professional manner. MedSafe shall be entitled to rely on all decisions and approvals of Client in connection with the Services.
C. Fees, Rates and Payment Terms Client shall pay MedSafe for the Services provided and shall reimburse MedSafe for actual travel and related expenses incurred in performing its obligations under this Agreement, unless otherwise specified in this Proposal.
D. Ownership of Deliverables Title to and ownership of any Deliverables, and all modifications thereto, whether by MedSafe, Client or a third party, will at all times be and remain the property of MedSafe. Notwithstanding the foregoing, Client will continue to own, and MedSafe will not obtain any ownership interest in, any of Client’s Confidential Information, if any. Upon final payment by Client to MedSafe for the Services and Deliverables, Client shall receive a nonexclusive, nontransferable, paid-up license to use the Deliverables only for its own internal business use and operations in connection with its authorized use of the Application. MedSafe shall retain all rights, title and interest in all of MedSafe’s Confidential Information irrespective of whether possessed by MedSafe prior to, or acquired, developed or refined by MedSafe, either independently or in concert with Client, during the course of its performance under this Agreement.
A. First Year Quoted prices for specified services and quantities are guaranteed for the first year.
B. Renewals Quoted prices for renewal years on the specified services and quantities are indicative only.
C. Initial Price Quoted prices are based upon information provided by the Client at signing. In the event that the Client requests additional types or quantities of services, the Price may be modified based on Medsafe’s pricing structure of the component services provided.
D. Subscriptions A service review will be performed 30 days before each anniversary date. The subscription fee will be adjusted as necessary based on the number of current seats in accordance with MedSafe’s pricing structure.
E. Price Change MedSafe reserves the right to modify Prices with a minimum of sixty (60) days notice prior to the end of the current term.
12. Client Responsibility
The Client shall make a good faith effort to accommodate Consultant’s scheduled appointment within one month following the Effective Date and each Anniversary Date.
13. General Provisions
A. Assignment Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by either party without the prior written consent of the non-assigning party. Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or of substantially all of such party’s equity securities, assets or business related to the subject matter of this Agreement.
B. Cause of Action Time Limit No cause of action may be brought against MedSafe under this Agreement more than twelve (12) months after the facts giving rise to such cause of action first arose.
C. Entire Agreement The Agreement, comprising the Service Proposal, these Terms and Conditions, and any attachments hereto, constitutes the entire, final, complete and exclusive agreement between MedSafe and Client and supersedes all previous agreements or representations, oral or written, including but not limited to any proposals, or requests therefore relating to the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. Both parties acknowledge having carefully read the terms and conditions set forth in this Agreement and all attachments hereto, understand all terms and conditions, and agree to be bound thereby.
D. Compliance with Laws Client shall use the Application, Deliverables and Documentation in compliance with all applicable laws, statutes, rules and regulations.
E. Force Majeure Nonperformance by either party shall be excused to the extent that performance is rendered impossible by acts of God, acts of government, flood, fire, earthquake, civil unrest, strike or labor problems, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
F. Governing Law and Venue This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts and the United States without regard to conflicts of law’s provisions thereof.
G. No Restrictions Client understands and acknowledges that MedSafe is in the business of providing other products and services which are or may be substantially similar to the Application, Services and Deliverables to third parties. Client understands and agrees that this Agreement does not prevent MedSafe from pursuing its stated business with such third parties.
H. Notices All notices required or permitted in this Agreement shall be made in writing by registered or certified mail, return receipt requested, addressed to MedSafe’s Legal Counsel at the address indicated in the Service Proposal and Agreement, or as later amended, and shall be deemed given upon receipt or confirmation of receipt.
I. Promotion Client agrees to allow MedSafe to: (i) list Client’s name as a MedSafe customer in MedSafe’s marketing materials including its website; and (ii) issue a press release within two (2) weeks of the Effective Date indicating that Client has agreed to the terms of this Agreement, the contents of which will be pre-approved by Client and which shall not be delayed or unreasonably withheld.
J. Relationship of the Parties The relationship of MedSafe and Client established by this Agreement is that of independent contractor, and nothing contained in this Agreement shall be construed to give either party the power to direct or control the day-to-day activities of the other or to constitute the parties as partners, franchisee-franchiser, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or otherwise give rise to fiduciary obligations between the parties.
K. Severability Should any court of competent jurisdiction declare any term of this Agreement void or unenforceable, such declaration shall have no effect on the remaining terms, which shall continue in full force and effect.
L. Titles and Subtitles The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
M. Waiver The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
N. Supporting Infrastructure Client shall procure and provide all equipment, hardware, 3rd party software, facilities and services necessary to host the Application to enable Client Access. Client is solely responsible for, at Client’s own expense, providing its Named Users with Internet access (broadband recommended) to the Application and an Internet browser meeting MedSafe’s then-current specifications.
O. Attorney’s Fees Client shall be responsible to pay MedSafe for any and all attorney’s fees, costs and related expenses incurred by MedSafe in connection with its enforcement of the Agreement, including the collection of fees payable by Client hereunder.