Syntermed Software End User License and Service Terms
IMPORTANT - PLEASE READ CAREFULLY
THIS IS THE LICENSE AGREEMENT THAT EACH LICENSEE (“LICENSEE”) IS REQUIRED TO ACCEPT BEFORE INSTALLING AND USING THE ABOVE-IDENTIFIED SOFTWARE. YOU, AS THE LICENSEE OR ACTING ON BEHALF OF LICENSEE, SHOULD CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT BEFORE PROCEEDING WITH THE DOWNLOADING AND/OR INSTALLATION OF OR USING THIS SOFTWARE. CLICKING THE APPLICABLE "I ACCEPT" OR EQUIVALENT BUTTON CONTAINED IN THE SOFTWARE DOWNLOAD LANDING PAGE INDICATES LICENSEE’S (INCLUDING THE END-USERS USING THE SOFTWARE UNDER THIS LICENSE FOR THE LICENSEE) ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. LICENSEE IS NOT PERMITTED TO DOWNLOAD AND/OR INSTALL AND/OR USE THIS SOFTWARE UNTIL LICENSEE HAS AGREED TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. BY ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU ALSO REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF THE LICENSEE. IF, ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT ARE NOT ACCEPTABLE AND CHOOSES NOT TO INSTALL THIS SOFTWARE, SUCH PARTY MAY OBTAIN A REFUND OF THE AMOUNT PAID FOR THIS LICENSE BY PROMPTLY NOTIFYING THE COMPANY THAT CHARGED FOR THE SOFTWARE NO LATER THAN 14 DAYS FROM REJECTION OF THIS LICENSE.
1. GRANT OF LICENSE FOR SOFTWARE
Subject to payment of any agreed fees and acceptance of these terms and conditions, Licensee is hereby granted a nonexclusive, non-transferable, royalty-free, limited subscription license to use the Software and Documentation (defined below) for internal business purposes. “Documentation” is defined here as the user manuals, on-line help functions and user instructions, regarding the operation, installation and use of the Software as made available to Licensee. The term of the license (“License Term”) will be agreed upon a separate ordering document provided by its authorized representative.
The Software (including any databases, processes, and output) and Documentation is owned and licensed by Syntermed, Inc., (“Syntermed”) and/or its authorized distributor and licensors (if applicable) and is protected by copyright laws of United States and other countries and by international treaty provisions. Title to the Software and Documentation (including, but not limited to originals, translations, compilations and partial copies, if any, and any intellectual property rights therein) shall not pass to Licensee. No license rights are granted (implied or otherwise) to Licensee except as specifically provided in this Agreement.
Licensee may not rent, lend, lease, sell the Software or Documentation or otherwise make the Software or Documentation available to third-parties. The foregoing restriction also applies to any portions, copies, or derivative works of the Software or Documentation. Licensee may not modify, translate, reverse engineer, decompile, disassemble or otherwise attempt: (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software, including without limitation any such mechanism used to restrict or control the functionality of the Software; or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Software (except to the extent that such activities may not be prohibited under applicable law). The Software and Documentation are provided with Restricted Rights. Use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in subparagraph (c)(1) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1), and (2) of Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable.
Licensee may not make copies of the Software and Documentation, or any part thereof, for any other purpose unless authorized in writing by Syntermed. If authorized to make copies, Licensee must mark such copies and include a copy of this Agreement. Licensee must reproduce proprietary notices on any copies of the Software and Documentation. Licensee is solely responsible to maintain relevant back-up procedures and shall be solely liable for any loss of data.
5. NO WARRANTIES.
NEITHER SYNTERMED NOR ITS AUTHORIZED DISTRIBUTOR (IF APPLICABLE) MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO USE OF THE SOFTWARE OR DOCUMENTATION. CUSTOMER’S USE OF SOFTWARE AND DOCUMENTATION ARE AT CUSTOMERS’ OWN RISK. SYNTERMED PROVIDES SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” NEITHER SYNTERMED NOR ITS AUTHORIZED DISTRIBUTOR (IF APPLICABLE) GUARANTEES THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM, OR PROCESSED BY, THE SOFTWARE. TO THE EXTENT PERMITTED UNDER LAW, SYNTERMED AND ITS AUTHORIZED DISTRIBUTOR (IF APPLICABLE) EXCLUDES ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. NO GUARANTEE OF UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OPERATION IS MADE.
6. DISCLAIMER OF WARRANTIES
No agent, employee, or representative of Syntermed or its authorized distributor (if any) has any authority to bind Syntermed or any of its suppliers, distributors or licensors to any affirmation, representation, or warranty concerning the Software and services provided in this Agreement; and any affirmation, representation, or warranty made by any agent, employee, or representative shall not be enforceable by Licensee.
8.LIMITATION OF LIABILITY
NEITHER LICENSEE NOR SYNTERMED, INCLUDING ITS AUTHORIZED DISTRIBUTOR (IF APPLICABLE), SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, TIME, OPPORTUNITY OR DATA, REGARDLESS OF THE FORM OF ACTION OR BASIS OF THE CLAIM. THE EXCLUSION OF DAMAGES SHALL APPLY EVEN IF THE LIMITED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
9. SUPPORT SERVICES
Syntermed will provide reasonable technical support remotely to diagnose and address Software related errors that result from a failure of the Software to perform substantially in accordance with its Documentation, provided such errors are verifiable and reproducible, during the License Term (“Support Services”). Technical support is available Monday-Friday, from 8:00 a.m. to 5:00 p.m. Eastern Standard Time (EST), excluding Syntermed holidays, in response to inquiries by Licensee.
Licensee should be familiar with any applicable Documentation including Software manuals and other user guidance documents to detect and resolve minor Software needs to help drive increased efficiency and minimize downtime. Documentation and online help through Syntermed’s website is available to users to assist with guidance in completion of tasks. If, after consulting these materials, Licensee still needs more information, they should contact Syntermed Telephone Licensee Support line at: 1-888-263-4446, x-2. In addition, Licensee should comply with the procedures, deliverables, and expectations as set forth in the Documentation.
Syntermed may require access to Licensee systems and servers to diagnose and/or resolve reported errors. A screen-sharing connection via broadband or other secure means of remote connectivity as specified by each support team is required to enable Syntermed to remotely connect to Licensee facility. If Syntermed cannot gain access to Licensee's systems and/or servers to diagnose and resolve an error, an escalation process through management at Licensee's facility should be available to ensure Syntermed’s ability to provide timely support. Syntermed will not be responsible for any failure to perform its obligations under this Agreement that results from Licensee’s refusal or inability to provide access to its systems and/or servers. Syntermed only accesses Licensee’s systems and servers upon Licensee’s request for services and/or with Licensee’s approval. Syntermed does not independently review or monitor Licensee data.
Licensee is solely responsible for support for any error determined by Syntermed to be caused by Licensee, a third party, or a third-party product, service, or procedure not authorized by Syntermed in writing. Support Services do not include: (i) training of Licensee’s personnel; (ii) interfaces, and changes to interfaces; (iii) on-site services and/or services that cannot be performed remotely; and (iv) all other services unless otherwise stated in this Agreement. Syntermed may provide additional services, at its sole option, and at its then-current rates. These additional support services, and all other billable expenses, including, but not limited to, actual travel, living and incidental expenses, including travel time, shall be invoiced separately as incurred.
10. SOFTWARE UPDATES AND SOFTWARE UPGRADES
a) “Software Updates” are included under this Agreement and are defined as any error-correction or modiﬁcation that maintains existing Software features and functionality made generally available to Syntermed’s customer installed base for this Software. Licensee is solely responsible to ensure that all data is appropriately backed up prior to installation of any Software Update. Software Updates DO NOT include any separately licensed software modules which provide additional functionality relating to an application or feature for the Software.
b) “Software Upgrades” are not included under this Agreement unless otherwise agreed to in writing and are defined as any revisions or enhancements of the Software by Syntermed that improve or expand existing software features or functionality that are generally made available for purchase by any customer for a fee.
c) Additional hardware and/or software (including upgrades to third party software, such as operating system software) required for Software Updates are excluded from this Agreement. Licensee is responsible for the cost of such additional hardware and/or software upgrades and such other changes (including training, project management and integration services) as may be necessary to support the Software Updates.
d) Failure to install the latest Syntermed approved Software Updates may result in additional fees and will adversely impact Syntermed’s ability to deliver Support Services to Licensee. Licensee is encouraged to remain current on Software Updates to receive the benefit of available software corrections. Actual frequency, versioning and release types may vary depending on the Software. Neither Syntermed nor its authorized distributor (if any) will be responsible for their inability to service the Software if the Software has not been updated to the latest Software Update.
11. NETWORK SECURITY
Licensee will ensure database management, network security, virus protection, backup, data integrity, and recovery of any data, images, software or equipment; Neither Syntermed nor its authorized distributor (if any) are
responsible for any recovery of lost data or images.
Each party will comply with all applicable laws and regulations, and Licensee is licensing Software for its own medical, non-entertainment use in the United States. SUCH USE OR INTENDED USE OF THE PRODUCTS FOR NON-CLINICAL PURPOSES WILL VOID ANY APPLICABLE WARRANTY. Licensee acknowledges that it is aware of its legal obligations for cost reporting, including 42 C.F.R. § 1001.952(g) and (h), and will request from Syntermed and its authorized distributor (if applicable) any information beyond the invoice needed to fulfill Licensee’s cost reporting obligations.
15. USE OF DATA
(a) Protected Health Information. To the extent Syntermed creates, receives, maintains, transmits or otherwise has access to any protected health information (“PHI”) in the course of performing under this Agreement, Syntermed shall only use and disclose such PHI as permitted by the administrative simplification section of the Health Insurance Portability and Accountability Act of 1996, Pub. Law 104-191 (August 21, 1996), its implementing regulations, and the Health Information Technology for Economic and Clinical Health ("HITECH") Act and its implementing regulations (collectively, "HIPAA"), and the applicable Business Associate Agreement between the Parties.
(b) Other Information. Licensee agrees that Syntermed may also create, receive, maintain, transmit and otherwise have access to machine, technical, system, usage and related information that is not PHI, including, but not limited to, information about Licensee’s product, service, system and software, that is gathered periodically to facilitate the provision of Software support, consulting, training and other services to Licensee (if any), and to verify compliance with the terms of this Agreement. Syntermed or its agents may use such information to provide, develop or improve Syntermed’s products or services.
16. MEDICAL DIAGNOSIS AND TREATMENT
All clinical and medical treatment, diagnostic and/or billing decisions are Licensee’s sole responsibility. The Software does not make clinical or other decisions and is not a substitute for competent, properly trained and knowledgeable healthcare staff who brings professional judgment and analysis to the information presented by the Software.
17. END OF AGREEMENT
This Agreement will expire upon the end of the License Term. However, a party may terminate this Agreement if the other materially breaches it, but the breaching party must be given prompt written notice and 30 days from receipt of notice to remedy. The non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach.
Upon termination or expiration of this Agreement for any reason: (i) Licensee’s license to the Software will immediately terminate and Licensee must immediately cease use of the Software; (ii) Syntermed will deny Licensee access to the Software or otherwise disable functionality within the Software itself; (iii) Syntermed’s obligation to provide Support Services will end; (iv) Licensee will permanently delete all copies of the Software from its facilities and, upon request, will promptly provide Syntermed and/or its authorized distributor with written certification of such deletion; and (v) Licensee will make payment on any outstanding payments owed to Syntermed or its authorized distributor within 30 days of the effective date of termination or expiration.
Syntermed and/or its authorized distributor may audit Licensee’s use of the Software under this Agreement. Licensee agrees to cooperate with such audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Licensee’s normal business operations. Licensee agrees to pay within 30 days of written notification any fees applicable to Licensee’s use of the services in excess of its rights. Licensee agrees that Syntermed and/or its authorized distributor shall not be responsible for any costs incurred in its cooperation with the audit.
18. GENERAL PROVISIONS
. Each party will treat this Agreement and the other party's proprietary information as confidential, meaning it will not use or disclose to any third parties such information unless permitted in this Agreement or required by law.
Force Majeure. For non-monetary obligations, performance time will be reasonably extended for delays beyond a party’s control.
. Licensee may not sublicense, assign, share, pledge, rent or transfer any of its rights under this Agreement in relation to the Software or any portion thereof including Documentation.
Independent Contractor. Syntermed and its authorized distributor (if applicable) are independent contractors and all of the parties agree that no partnership, joint venture, or agency relationship exists.
. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it.
. Failure to enforce any provision of this Agreement is not a waiver of that provision or of a party’s right to later enforce it.
. If one or more provisions of this Agreement are found to be invalid or unenforceable, this Agreement shall not be rendered inoperative but the remaining provisions shall continue in full force and effect.
. Terms in the Agreement related to intellectual property and compliance, as well as any terms that by their nature are intended to survive its expiration (for example, without limitation, the limitation of liability, ownership rights, warranty disclaimers and confidentiality provisions included herein) will continue in full force and effect after its expiration.
Applicable Law. This Agreement is solely for the license of Software and procurement of Support Services in the United States. The law of the State where the Software is installed will govern this Agreement.
. Software shall be delivered electronically.