End User License Agreement (“EULA”)

 

1. Definitions.  The following definitions shall apply to this Agreement:

 

1. "Hosted Services" means a subset of Services performed for Client for the hosting, management and operation of Services, Software and other services for remote electronic access and use by Client as more specifically described in one or more written sequentially numbered Service Orders.

2. “Large Data Array” or “LDA” means a database that is an aggregated view of products where clinical, financial and material elements have been linked and utilized at the product line item level and represented through  products and services.  The LDA is utilized in the creation of an interoperable platform to efficiently update the core foundational systems of  end-users.

3. "Materials"  means all devices, documents, data, know-how, methods, processes, software, including the Service Software and Hosted Services, and other inventions (whether or not patentable), works, technologies and materials, documentation, computer hardware and software, programs, reports and specifications, and client software created by  or otherwise provided or used by  in connection with performing the Services.

4. “Technology” includes all SCWorx Data, Service Software, Source Code, Object Code, infrastructure and proprietary processes and procedures and Service-related technology components.

5. “SCWORX Data” means any and all information that resides in SCWorx’s referential databases (“Global Catalog”) which includes de-identified Client Data, as described below that, once merged into the SCWorx’s Global Catalog, becomes a part of SCWorx’s referential materials provided to its clients.  Client Data that becomes  Data is limited to manufacturer product information only.  

6. “Services” means the implementation and provision of deliverables related to the Software application.

7. "Service Software" means the  software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that  provides access to and use of as part of the Services.

8. "Specification" means the specifications for the Services and, to the extent consistent with and not limiting of the foregoing, the documentation provided by  for the Services.

9. “Third Party” means SCWorx’s content provider, SCWorx for purposes of this Agreement.

 

Non-Exclusive License Grant of Use.  SCWorx hereby grants Client a non-exclusive, non-transferable, non-sublicensable limited use license to use SCWorx on the designated computers at the locations identified in Section 5, during the term of this Agreement solely in the United States only for Client’s internal business purposes in accordance with the terms of this Agreement.  Client may authorize its employees to use SCWorx in accordance with the terms of this Agreement, but Client shall be responsible for all use of SCWorx by its employees.  Client may not authorize any non-employee to use SCWorx without SCWorx’s prior written consent.

 

Client shall not, and will not permit any third party, to: (a) tamper with, modify, translate, copy, reverse engineer, decompile, or disassemble  SCWorx or attempt to derive the source code of SCWorx, (b) resell, sublicense, assign, transfer, rent or grant a security interest in SCWorx or any right thereto or therein; (c) use SCWorx or any content in SCWorx to compete with SCWorx, (d) remove or destroy any copyright notices, trademark notices or other proprietary markings included in or on SCWorx, (e) modify or adapt SCWorx, merge SCWorx into another program or other software code, or create derivative works based on SCWorx, (f) permit any third party to maintain or otherwise service SCWorx or provide any third party with access to SCWorx without SCWorx’s prior written consent, (g) export or re-export SCWorx or use SCWorx outside the United States or at locations not identified in Paragraph 5, (h) introduce into SCWorx any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate SCWorx or any other system, data or other personal information, or (i) transmit unencrypted data to or through SCWorx.  Client also shall not use any device, software or routine to bypass any code of SCWorx or to interfere or attempt to interfere with the proper working of SCWorx.  In addition, Client shall not take any action that imposes an unreasonable or disproportionately large load on SCWorx or its host infrastructure.    Client agrees to maintain and treat the Service Software and SCWorx Data as SCWorx’s Confidential Information.  The provisions of this paragraph shall survive any termination or expiration of this Agreement.

           

Passwords.  Each individual authorized to use SCWorx must have his or her own user ID and password.  Client is not permitted to share, or permit sharing of, user IDs between or among multiple users.  Client is responsible for maintaining the confidentiality of each user ID and password, and Client shall ensure user IDs and passwords are not shared with any third parties without SCWorx’s prior written consent.  Client shall notify  immediately if any user ID is compromised or threatened to be compromised or if Client suspects any unauthorized use of a user ID. Client shall immediately revoke any user ID of any individual with access to SCWorx who leaves Client’s employ.  At SCWorx’s request at any time, Client shall provide  with a written list of all users of SCWorx and all user IDs and the individuals to which the user IDs are assigned. 

 

Feedback.  Client shall provide monthly feedback to  on SCWorx, the content provided in SCWorx, the user experience in using and navigating the features in SCWorx, and such other topics as reasonably requested by  (the “Feedback”).  Client shall provide the Feedback in the format requested by .  Client acknowledges and agrees that  shall own all rights in the Feedback, and Client hereby assigns to  all right, title and interest in and to all Feedback on behalf of Client and any of its employees who provide Feedback.  Client represents and warrants it has the right to grant this assignment on behalf of such employees.  In addition,  shall have the right to use, retain and provide to any of its licensors, anonymized statistics relating to Client’s use of SCWorx.  

 

Data Rights and Usage.  During the term of this Agreement, Client shall provide  with Client’s data including any and all information, data, materials, works, expressions or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Client for processing by or through  systems or the Services, or (b) collected, downloaded or otherwise received by  or  systems for Client pursuant to this Agreement or at the written request or instruction of Client (collectively, the “Client Data”).  All Client Data shall be transmitted electronically by or on behalf of Client to  or its Third Party as  directs, and all Client Data provided by or on behalf of Client shall be in the format specified in Attachment A or as otherwise agreed upon between Client and .    Client hereby consents to  disclosing all Client Data to Third Party as required in order to deliver the Services under this Agreement.     

 

Right to Provide Client Data.  Client hereby represents and warrants that it has the necessary rights to provide Client Data to  and to permit  to use Client Data and provide Client Data to Third Party as specified in this Agreement.  Client hereby grants , and its Third Parties, a limited, perpetual, worldwide, royalty-free, irrevocable license to use, reproduce and make derivative works of Client Data for purposes of providing reference materials to other  clients provided  has (i) de-identified the Client Data; (ii) warrants and represents that the Client Data is de-identified pursuant to Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) standards and that there is no Protected Health Information (“PHI”) in the de-identified and aggregated data when such data  is merged into SCWorx’s Global Catalog such  that the data cannot be linked to its original source. 

 

Ownership of Data. Client Data will always remain owned and the property of Client and  Data shall always remain owned and the property of .  Client Data that pertains to actual products and their respective attributes and has (i) been de-identified to its source; (ii) had all PHI removed according to HIPAA standards; and (iii) has been merged into the  Third Party Large Data Array, will automatically become  and Third Party Data. Client further acknowledges and agrees that any derivative works created by  based on Client Data shall be owned by .  

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Implementation:  The implementation phase of the Services will include a project kick-off call between Client and . The implementation process will be complete once all components are implemented and SCWorx is ready to function in a live environment, including:

• Set up Client end-users for application access and provide an initial savings opportunity roadmap;

• Conduct Client kick-off meeting, including agreement on the mutually agreed upon goals and objectives of the project.

• Documented implementation plan and data requirements.

• Assign Project Lead and single escalation point for Client.

• Completion of system access to data portal.

• Analyze current state/review Client Item Master.

• Work with Client to clearly identify Key Performance Indicators (KPIs) to be reported on an ongoing basis.

• Work with Client to identify quarterly and annual review board.

• Train Client in all aspects of the operation of SCWorx utilizing a “train-the-trainer” approach.  Note: As mutually agreed upon, training may be conducted either onsite or remotely depending upon the number of people and the specific training session.

 

Client Obligations:

Ensure attendance of Client’s operations and IT representatives on kick-off call.

Ensure attendance of identified Client point person at all Service review meetings as well as other mutually scheduled update, progress, quarterly review and semi-annual executive update meetings.

Ensure ongoing access to:

Remote access into Client’s MMIS and other systems as agreed upon between Client and .

Supply Item Master file and all other agreed upon data requirements in the agreed upon format identified in this Agreement.

Provide  access to Client systems where required for initial implementation tasks as well as ongoing maintenance and support.

Ensure delivery of initial Client Item Master file data in the specified format within two weeks of kick-off call as required and outlined in Attachment A.

Provide report of baseline key data and performance indicators to be tracked on an ongoing basis

Provide a single point of coordination and escalation for matters arising under this Agreement.

 

Services Delivery:  The objective of the Services is to deliver a comprehensive approach to improve the consistency, validity and reliability of supply chain and clinical data. The Services are intended to elevate and expand the Client’s real-time access to comprehensive and consistent data enhancement services for all its constituents, supporting team goals as well as individual operations objectives.  This Service will be accomplished by engaging in three (3) core actions:

 

Assessment of the existing product coding and category taxonomy within the Client’s Item Master file.

Engage the applicable item enhancement process(es) based on individual requirements as determined from the assessment. To include a comprehensive use of multiple streams of data to provide one enriched item master back to client.

Deliver ongoing data maintenance of the item master on an annual subscription basis.

 

Term: The “Initial Term” of this Agreement and License shall commence on the Effective Date and shall continue for the complete term length beginning the Effective Date. 

 

The Initial Term shall automatically renew for additional periods (“Renewal Periods) of 1-year each unless either Party, at least 60-days before the end of the then-current term, provides written notice to the other Party of its intent not to renew this Agreement.    SCWorx’s Fees shall be fixed during the Initial Term.   may increase Fees for any Renewal Period by providing written notice to Client at least one hundred and twenty (120) calendar days prior to the commencement of such Renewal Period. 

 

Termination: This Agreement may be terminated as follows:

 

effective immediately upon written notice of termination delivered to the other Party upon the breach of this Agreement by the other Party if such breach is not cured within thirty (30) days following receipt of written notice of the breach by the breaching Party;

 in the event of the other Party’s insolvency or initiation of bankruptcy proceedings or a material violation by the other Party of any applicable state or federal law, rule or regulation in relation to its performance of this Agreement; or

effective on the anniversary date of any Renewal Term, upon written notice delivered to the other Party no later than one hundred twenty (120) days before such date; or

by , upon fourteen (14) days written notice if undisputed payments are in excess of thirty (30) days past invoice due date. In addition,  may take any or all of the following actions any time undisputed payments are fourteen (14) days in arrears: (i) suspend the services; or (ii) withhold data or reports; or

In the event of any termination hereunder Client shall compensate  for all Services provided and costs incurred up to the date of termination, in accordance with this Agreement.

 

Upon receipt of notice of termination, the Parties hereby agree to abide by the terms of this Agreement through the effective date of termination. Upon termination of this Agreement, neither Party shall have any further obligation to the other under this Agreement, except that (a) both Parties shall be obligated to fulfill their respective obligations which have accrued prior to the termination, and (b) the obligations, promises and covenants in this Agreement which are expressly intended to extend beyond the term of this Agreement, respectively, shall remain in effect following termination.

 

Fee and Pricing Schedule. Client will pay an annual subscription fee for each year this Agreement is in effect (the “Subscription Fee”) as defined in the pricing as provided in the Service Order Form.  All travel, shipping costs, media charges, and other reasonable out-of-pocket expenses sustained by  in connection with this Agreement will be billed to Client separately as incurred, with payment due upon receipt of invoice with detailed supporting documentation.  Out-of-pocket expenses shall be billed to Client within thirty (30) days of the date the expenses are incurred.

The initial data cleanse fee and the Subscription Fee will be invoiced upon execution of the Agreement.  The remaining annual maintenance fees shall be invoiced monthly in 12 installments  forty-five (45) days in advance of when Services are to be delivered to Client and will be due on or before the 1st day of the month Services are to be delivered.  Client shall pay all invoices within thirty (30) days of Client’s receipt thereof.

 

Warranties.   warrants that the Services will be provided in a professional and workmanlike manner and that the Services will be of the kind and quality described in this Agreement.  SUBJECT TO THE FOREGOING, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED AND EXCLUDED WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION THE DELIVERABLES.  CLIENT ACKNOWLEDGES THAT  MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION, OR OTHER ATTRIBUTE OF ANY PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES. 

 

 represents and warrants that Services shall be performed on a professional basis and in compliance with all applicable federal and state laws, rules, ordinances and regulations.  further warrants that it has and shall continue to have for the term of this Agreement, good title to the deliverables provided to Client. To the extent that  Materials is or contains software or deliverables,  warrants and represents that: (a)  Materials will materially perform in accordance with the applicable documentation provided by  or as agreed upon by the Parties in this Agreement; and (b) to the knowledge of , any  Materials provided to Client shall: (i) contain no hidden files; (ii) not replicate, transmit or activate itself without control of a person operating the computing equipment on which it resides; (iii) not alter, damage, or erase any data or computer programs without control of a person operating the computing equipment on which it resides; or (iv) contain no key, node lock, time‑out or other function which restricts use or access to any programs or data developed under this Agreement, based on residency on a specific hardware configuration, frequency or duration of use, or other limiting criteria ("Illicit Code").

 

Except only for any express warranties set forth in this Agreement,  does not represent or warrant that any of its Services will operate error-free or without interruption. In addition, neither Party's liability for damages of any kind will, in any event, exceed the total amount of fees paid by Client (and on Client's behalf) to  under this Agreement.

 

Client acknowledges and understands SCWorx interfaces with and is dependent upon products, services and data provided by third parties not under SCWorx’s control.   does not provide any warranties, guaranties or indemnification regarding any third parties or any of their products, services or data, whether or not such products, services or data are provided or recommended by .

 

In no event will either of the Parties be liable for any loss of profits, loss of use, business interruption, cost of cover or indirect, special, incidental, or consequential damages of any kind in connection with or arising out of the furnishing, performance or use of any Services provided under this Agreement, whether alleged as a breach of contract or tortious conduct, including negligence, or otherwise.  hereby disclaims and excludes all warranties of any kind, express or implied (whether arising under law or equity or custom or usage), including without limitation, the implied warranties of merchantability and fitness for a particular purpose.

 

CLIENT ACKNOWLEDGES THAT  PROVIDES SCWORX “AS IS.”   SCWORX MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SCWORX SOFTWARE OR TECHNOLOGY OR THE CONTENT PROVIDED.  SCWORX  SHALL HAVE NO LIABILITY TO CLIENT AS A RESULT OF CLIENT’S USE OF SCWORX OR ANY CONTENT IN SCWORX.

 

Indemnification.  Each Party will indemnify, defend and hold harmless the other and its respective agents, officers and employees from and against any and all liability, expenses, including reasonable defense costs and reasonable legal fees, and damages, in each case solely for third party claims for bodily injury, death of any person, or damage to tangible personal property to the extent directly and proximately caused by the negligence or willful misconduct of the indemnifying Party or its agents during the course of performance of the Services. 

In addition, Client shall indemnify, defend and hold harmless SCWorx and its Third Party, their affiliates and agents, officers and employees from and against any and all liability, expense, including reasonable defense costs and reasonable legal fees, and damages arising out of any act of infringement of any existing patent or copyright or any unauthorized use of any trade secret or other violation of any intellectual property rights relating to this Agreement.

 

IP Infringement Indemnification.   If a claim is made or an action brought against Client alleging that SCWorx infringes a U.S. patent, or any U.S. copyright, trademark, trade secret or other proprietary right,  and/or Third Party shall indemnify, hold harmless and defend Client against such claim. Client shall promptly notify  in writing of the claim, within a reasonable period of time after becoming aware of such claim, and SCWorx shall have sole control of the defense and all related settlement negotiations. Client shall reasonably cooperate in such defense so long as there is no expense to Client. If SCWorx, in whole or in part, or the use or operation thereof, becomes, or in the reasonable opinion of  is likely to become, the subject of such a claim,  may, at its expense, either procure the right for Client to continue using SCWorx or, at the option of SCWorx, replace or modify the same so that it becomes non-infringing. If neither of the foregoing alternatives is available on terms which are reasonable in SCWorx’s judgment, Client shall, if requested by , cooperate with  to identify an alternate solution, prepare for and transition all existing data to the new solution, and successfully transition Client to such replacement product, at which time Client will return the infringing SCWorx and other materials on written request by  and  will refund to Client, at Client’s option, a pro-rata portion of all fees paid for SCWorx less depreciation on a straight line basis over an assumed seven (7) year service life.   will have no liability for any claim: (i) based upon the combination, operation or use of SCWorx with hardware or software not supplied, approved, or otherwise contemplated in the documentation by  if such claim would have been avoided by use of other hardware or software capable of achieving the same results; or (ii) based upon alteration or modification of SCWorx.

 

Confidential Information.  Each Party acknowledges that the other Party may be the owner of valuable trade secrets and other confidential information, as well as other like information that is licensed from third parties; and Client acknowledges and agrees SCWorx contains confidential and proprietary information of  or its licensors, the disclosure of which may irreparably harm  or its licensors. ("Confidential Information").  Each Party shall treat such Confidential Information as strictly confidential and shall not use such information for its own purposes or for third parties, or divulge or permit to be divulged to, or examined or copied by others, any Confidential Information or data obtained from the other Party: (a) which is confidential or proprietary to the other Party or its Affiliates, including, without limitation, all patient and demographic information; (b) which relates to the trade secrets, methods, intellectual property, research, products, operations, policies, procedures, techniques, accounts or personnel of the other Party; or (c) which is confidential or proprietary to a third party and in the possession, custody or control of the other Party.  In the event of a breach or threatened breach of the provisions of this Section, each Party shall be entitled to seek an injunction restraining such breach or threatened breach without having to prove actual damages or threatened irreparable harm.  Such injunctive relief as each Party may obtain shall be in addition to any other rights and remedies available at law and in equity.

 

 If either Party receives a subpoena or other validly issued administrative or judicial process requesting the Confidential Information of the other Party, the Party receiving the subpoena or other process will provide prompt notice to the other Party of such receipt and the substance of such subpoena or process if permitted by law. In addition, to the extent permitted by applicable law, the receiving Party will provide reasonable cooperation with the other Party in any attempt to contest or limit such required disclosure, at such other Party's sole expense. The receiving Party will thereafter be entitled to comply with such subpoena or process to the extent reasonably required by law. Notice will not be required prior to disclosure of Confidential Information to tax authorities to the extent reasonably required in connection with tax audits of  or Client.

  

HIPAA:   acknowledges and agrees that under this Agreement it (a) shall have access to individually identifiable health information, as defined in the Health Insurance Portability and Accountability Act (“HIPAA”), of Client’s patients in connection with its provision of Services under this Agreement, and (b) is a “Business Associate” of Client as defined in HIPAA.  Accordingly,  hereby represents and warrants that it shall comply with the obligations of a Business Associate, as required by HIPAA and other related laws, as embodied in a Business Associate Agreement to be entered into between Client and  which relates to the security and/or privacy of the individually identifiable health information of Client’s patients.

 

Dispute Resolution/Binding Arbitration: The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiations between representatives with authority to settle the dispute. If the matter has not been resolved within thirty (30) days of a Party’s request for negotiation, either Party may submit to non-binding mediation and if not so resolved, it shall be submitted to binding arbitration conducted under the Commercial Rules of the American Arbitration Association (the “AAA Rules”). Such arbitration shall be conducted in the Ste of New York. The arbitrator’s award shall be final and binding on the Parties and their successors and assigns, and the Parties shall comply with such award in good faith. Each of the Parties shall be responsible for its own costs of arbitration, including attorneys’ fees. All fees and expenses of the Parties incurred in connection with arbitration, including fees and disbursements of the Arbiters but excluding attorneys’ fees and expenses, shall be paid by the Party against whom the matter at issue is resolved or prorated, if more than one matter is at issue, in accordance with the dollar value of the issue resolved.

 

No Assignment:  Client may not assign this Agreement without SCWorx’s prior written consent.  SCWorx  may assign this Agreement without Client’s consent.

 

Right to Hire.  If at any time, Customer wishes to hire a member of Provider's Personnel, Customer may request that Provider release the Personnel from his/her employment agreement or independent contractor agreement with Provider, as applicable, to allow Customer to employ such Personnel and Provider shall not unreasonably refuse such request.  The Service Order shall set forth that remuneration, if any, that Customer will provide to Provider, in exchange for the right to hire set forth herein.

Recruitment of Personnel.  During the term of this Agreement and for a period of one (1) year thereafter, Provider shall not solicit the employment of any Customer employee with whom Provider has contact in connection with the relationship arising under this Agreement. 

Notices:  Notices shall be given or provided in writing and sent to the address below for the Parties: 

 

               To :  SCWorx       

               590 Madison Ave

               New York, NY 10022

               Attention:  Legal

              

Notices provided using the United States Mail shall be effective on the fourth (4th) business day after deposit in the mail.  Notices provided using a nationally recognized overnight courier service shall be deemed received on the business day following delivery to such courier.    

 

General: 

 

• This Agreement contains the entire understanding and agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements or understandings, written or oral, between the Parties with respect to the subject matter of this Agreement.

• This Agreement is made and shall be construed in accordance with the internal laws of the State of New York (irrespective of its choice of law principles). 

• Waiver by either of the Parties to this Agreement of any breach of, or exercise of any right under, shall not be deemed a waiver of similar or other breaches or rights.  The failure of a Party to take any action by reason of any such breach, or to exercise any such right, shall not deprive such Party of the right to take action at any time while such breach or condition giving rise to such right continues. 

• No amendment, supplement, modification, waiver or termination of this Agreement or any revision of it shall be binding, unless executed in writing by the Party to be bound thereby. 

• If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, the remainder of this Agreement and application of such provisions to other persons or circumstances shall be interpreted so as best to reasonably effect the intent of the Parties.  The Parties further agree to replace any such invalid or unenforceable provisions of this Agreement with valid and enforceable provisions which will achieve, to the extent possible, the economic, business and other purposes of the invalid or unenforceable provisions. 

• The Parties are independent contractors.  Nothing in this Agreement shall be construed or interpreted as constituting either Party the agent, principal, employee or joint venture of the other Party.  Except as expressly provided in this Agreement, neither Party shall have the authority to bind or obligate the other Party, and neither Party shall represent that it has such authority. 

• This Agreement may be executed in any number of counterparts and by facsimile, each of which shall be an original as against any Party whose signature appears thereon and all of which together shall constitute one and the same instrument.

• To the extent Client receives a discount in connection with the Services or other deliverables provided under this Agreement, Client acknowledges that it may have an obligation under federal or state law to report such discount to federal or state healthcare programs or other payors and agrees to comply with such laws.  shall fully and accurately provide on the Client’s invoice documentation of the calculation of any discount, identifying the specific goods or services purchased to which the discount will be applied.