"Affiliate" means any other individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity ("Person") that directly or indirectly, through one or more intermediaries, controls, or is controlled by, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person.
"Agreement" means this Software as a Service Agreement, any and all Service Orders and Statements of Work, Attachments or Exhibits attached to this Agreement, and any Amendments or Change Orders thereto.
"Customer Data" means 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 Customer for processing by or through Vendor systems or the Services, or (b) collected, downloaded or otherwise received by Vendor or Vendor systems for Customer pursuant to this Agreement or any Service Order or at the written request or instruction of Customer. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any Customer Data are themselves also Customer Data. For the avoidance of doubt, Customer Data includes all personally identifiable information provided by Customer or developed by Vendor on Customer's behalf but does not include any Vendor Materials.
"Hosted Services" means a subset of Services performed for Customer for the hosting, management and operation Service Software and other services for remote electronic access and use by Customer as more specifically described in one or more written sequentially numbered Service Orders.
“Large Data Array” the Large Data Array (“LDA”) is a database which 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 Vendor products and services. The LDA is utilized in the creation of an interoperable platform to efficiently update the core foundational systems of Vendor end-users.
"Professional Services" means those Services that are not Hosted Services.
"Vendor Materials" means all devices, documents, data, know-how, methods, processes, software, including the Service Software and Hosted Services, and other inventions, works, technologies and materials, documentation, computer hardware, programs, reports and specifications, and client software, created by Vendor prior to this Agreement and which Vendor has clearly identified in writing to Customer prior to its use as proprietary to Vendor, and provided or used by Vendor in connection with performing the Services.
“Vendor Technology” includes all Primrose Data, Service Software, Source Code, Object Code, infrastructure and proprietary processes and procedures and Service-related technology components.
“SCWorx Data” means any and all information that resides in Vendor’s referential databases (Global Catalog) which includes de-identified Customer Data, as described in Section 3, that, once merged into the Vendor’s Global Catalog, becomes a part of Vendor’s referential materials provided to its customers. Customer Data that becomes Vendor Data is limited to manufacturer product information only.
"Service Order" means an ordering document specifying the Services to be provided hereunder that is entered into between the parties, including a statement of work and any addenda and supplements thereto. By entering into a Service Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Service Software" means the Vendor software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Vendor provides remote access to and use of as part of the Services.
"Specification" means the specifications for the Services and, to the extent consistent with and not limiting of the foregoing, the Documentation.
LICENSE AGREEMENT & ADDITIONAL TERMS
1. Ownership of Data. Customer Data will always remain owned and the property of the Customer and Vendor Data shall always remain owned and the property of Vendor. Customer 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 Vendor Large Data Array will become Vendor Data.
2. License. Vendor grants Customer a non-transferable non-sublicensable, non-exclusive, limited use license to use the Licensed Products on the designated computers located at the Licensed Facilities set forth in the Service Order for the duration of the Service Order. Customer may not modify, copy, translate, decompile, disassemble, reverse engineer, loan, rent, lease, sublicense, or create derivative works of the Licensed Products, in whole or in part. Customer shall not use the Licensed Products to operate any revenue-generating service business without the express prior written consent of Vendor. Customer agrees to maintain software and data as confidential information. The provisions of this Section shall survive any termination of the Agreement.
3. Property and Proprietary Rights. Vendor agrees to fully and promptly disclose in writing to Customer all work, ideas, inventions, discoveries, processes and improvements, computer programs, specifications, operating instructions, notes, and all other documentation (whether or not patentable) created, conceived or first reduced to practice by Vendor, alone or with others, in connection with Professional Services rendered for Customer hereunder or in the past or which derive from information or materials Vendor has received from Customer (the "Work Product"). Vendor also agrees that the Work Product is the exclusive property of Customer and that Vendor will, during the term of this Agreement and thereafter, execute all papers and do all things deemed necessary by Customer to ensure that Customer obtains full title to such Work Product, including all intellectual property embodied therein.
4. Warranties. Vendor represents and warrants that Services performed by Vendor or by a permitted subcontractor, employee, or agent of Vendor shall be performed on a professional basis and in compliance with all applicable federal and state laws, rules, ordinances and regulations. Vendor further warrants that it has and shall continue to have for the term of this Agreement, good title to the deliverables provided to Customer and that such deliverables do not violate the property rights or interests of any third party, inclusive of the intellectual property contained therein. To the extent that Vendor Materials is or contains software or deliverables, Vendor warrants and represents that: (a) Vendor Materials will perform in accordance with all documentation provided by Vendor or as agreed upon by the parties in a Service Order; and (b) any Vendor Materials provided to Customer 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"). If any Vendor Materials contains Illicit Code, Vendor shall, via a document specific to this provision, notify Customer in writing and receive a signed acknowledgement of receipt from Customer. Such notification shall specifically inform Customer of the full extent and nature of the Illicit Code and provide Customer with instructions for overriding such Illicit Code in emergencies. Vendor shall be in default of this Agreement and no cure period shall apply if any Vendor Materials contains Illicit Code. Customer reserves the right to pursue any civil and/or criminal penalties available to it against Vendor. Vendor warrants and represents that in its provision of Vendor Materials and/or Services to Customer, Vendor will limit the flow of Confidential Information to the geographic limits of the United States of America. Customer may authorize extraterritorial disclosure of such information by express written permission which must be specific as to the geographic area and specific entities to which the data will be provided. All of the warranties referenced or set forth in this Section shall be in addition to all other warranties which may be prescribed by law and all other remedies available at law or in equity.
Except only for any express warranties set forth herein or in the Service Order Agreement, Vendor does not represent or warrant that any of its Services will operate error-free or without interruption, and except only as such entity has been advised of the possibility of such damages. In addition, neither party's liability for damages of any kind will, in any event, exceed two times (2x) the total amount of fees paid by Customer (and on Customer's behalf) to Vendor related to Customer's use of licensed products. Notwithstanding anything else herein, no limitation of liability shall apply to any damages arising as a result of (i) a party’s indemnity obligations; (ii) a party’s breach of confidentiality obligations; (iii) losses for bodily injury or wrongful death, damage to real or tangible personal property; (iv) a party’s gross negligence or recklessness or more culpable conduct, including willful misconduct or intentionally wrongful acts; or (vi) Vendor’s breach of the Business Associate Agreement (vii) a party’s violation of applicable law; or (viii) losses to the extent covered by insurance required under this Agreement.
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 the Vendors services, whether alleged as a breach of contract or tortious conduct, including negligence. Vendor 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.
4. IP Infringement Indemnification. If a claim is made or an action brought alleging that Vendor Materials or any deliverable infringes a U.S. patent, or any copyright, trademark, trade secret or other proprietary right, Vendor shall indemnify, hold harmless and defend Customer and its officers, directors, trustees, sponsors, employees, or agents (collectively, the "Indemnitees") against such claim and shall pay ongoing and resulting costs of the infringement claim, and attorneys’ and expert fees. Customer shall promptly notify Vendor in writing of the claim, within a reasonable period of time after becoming aware of such claim, and Vendor shall have primary control of the defense and all related settlement negotiations. Customer shall reasonably cooperate in such defense so long as there is no expense to Customer. If Vendor Materials, in whole or in part, or the use or operation thereof, becomes, or in the reasonable opinion of Vendor is likely to become, the subject of such a claim, Vendor shall, at its sole expense, either procure the right for Customer to continue using Vendor Materials or, at the option of Vendor at Vendor’s sole expense, replace or modify the same so that it becomes non-infringing (provided such replacement or modification maintains the same material functionality and does not adversely affect Customer’s use of Vendor Materials as contemplated hereunder). If neither of the alternatives is available on terms which are reasonable in Vendor’s judgment, Vendor shall cooperate with Customer to identify an alternate solution (which may or may not be a Vendor product), prepare for and transition all existing data to the new solution, and successfully transition Customer to such replacement product, at which time Customer will return the infringing Vendor Materials on written request by Vendor and Vendor will refund to Customer, at Customer’s option, all fees paid for such Vendor Materials and related Services less depreciation on a straight line basis over an assumed seven (7) year service life. If Vendor gives Customer notice that it chooses not to defend such claim or attempt to settle such claim on reasonable terms, Vendor shall be deemed to have elected not to conduct the defense of the subject claim, and in such event Customer shall have the right to conduct such defense and to compromise and settle the claim without prior consent of Vendor, and in such case, the indemnity set forth in the first sentence of this paragraph shall apply. Vendor will have no liability for any claim: (i) based upon the combination, operation or use of any Vendor Materials with hardware or software not supplied, approved, or otherwise contemplated in the documentation by Vendor 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 the Vendor Materials, except to the extent such modification or alteration is contemplated by the documentation and this Agreement.
5. HIPAA. The parties will comply with the terms of the Business Associate Agreement between Vendor and Customer dated November 27, 2017 (“BAA”), the terms of which are hereby incorporated herein. In the event of a conflict between this Agreement and the BAA, the terms and conditions that are more protective shall apply. Vendor agrees that no PHI may be created, received, maintained, accessed or transmitted outside of the United States of America.
6. Entire Agreement. This Agreement, which includes all attached exhibits, definitions and license terms referenced within the Agreement and included herein and any Service Order created pursuant hereto, constitutes the entire agreement between Customer and Vendor with respect to the subject matter hereof; and supersedes all proposals, oral or written, and all other communications between the parties with respect to such subject matter. The headings of sections of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement in any way.
7. Non-Assignable. Neither party may assign, subcontract, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder, nor may it contract with third parties to perform any of its obligations hereunder except as contemplated in this Agreement, without the other party's prior written consent. Consent will not be unreasonably withheld or delayed by either party.
8. Notice. Any notice required or permitted to be given hereunder shall, except where specifically provided otherwise, be given in writing to the addresses specified herein and will be effective at the earlier of when received or five (5) days after mailing if mailed in the United States mail, first-class, postage pre-paid. Notice provided to SCWorx shall be sent to 590 Madison Avenue, New York, NY 10022. All notices sent to the address sent by Customer within the Agreement.
9. Choice of Law and Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of New York and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.