1. Modules and Services: Asolva will provide the hosted modules (“Modules”) and related documentation and other services described in each addendum (“Addendum”) attached to this Agreement and any additional Addendum or statement of work executed by the parties in the future (collectively, the “Services”).
2. Term and Fees: The “Term” of this Agreement begins on the Effective Date and continues for the duration of the last Addendum to expire or terminate. Fees are shown in each Addendum.
3. License: Subject to Client’s compliance with this Agreement and to the parameters stated in each Addendum, Asolva hereby grants Client a non-exclusive, non-transferable, non-sublicensable limited license during the Term to access and use the Modules all for use by Client’s employees and contractors solely for the purpose of creating content on behalf of Client. Except for the limited license explicitly granted above, Asolva retains all right, title and interest (including all intellectual property rights) in the Modules and user documentation.
4. Client Access:
- 4.1. Asolva will provide Client with access to the Services via unique login credentials. Each of Client’s individual users requiring access will be provided their own unique login credentials.
- 4.2. Client shall not disclose its login credentials to any third parties and will immediately notify Asolva of any unauthorized access to the Services or any other breach of security or user privacy or any known violation of this Agreement by Client or any third party. Client is solely responsible for any liability, loss or damages arising from any unauthorized third party access to the Services.
5. Limitations: Except as expressly allowed by this Agreement, Client may not (itself or through a third-party):
- 5.1. Use the Modules, documentation and/or the non-public information it gains from using the Modules and/or the documentation to create similar software or services;
- 5.2. Modify, alter, tamper with, repair or otherwise create derivative works of the Modules or documentation; reverse engineer, disassemble, decompile, discover or recreate the Modules (including source code), except and only to the extent that the applicable law expressly requires Asolva to permit Client to do so;
- 5.3. Sell, lend, rent, lease, sublicense, assign or otherwise transfer any of the rights granted to Client with respect to the Modules or documentation to any third-party;
- 5.4. Provide the or documentation to any third-party or allow any third-party to access the Modules or documentation;
- 5.5. Remove, obscure or alter any proprietary rights notice appearing on or within the Modules or any documentation; or
- 5.6. Attempt to circumvent any capacity or security limits of the Services.
6. Documentation: Client may use documentation provided by Asolva provided that: (a) any copyright notices appear in all copies and that both the copyright notice and this permission notice appear; (b) Client is using the documents only for informational use and the documents will not be copied or posted on any website, server or networked computer or broadcast in any media; and (c) Client does not modify the documents.
8. Intellectual Property Rights, Patient Data:
- 8.1. The contents of the Modules (e.g., the design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement) and the documentation are the proprietary property of Asolva and/or Asolva’s suppliers, affiliates, or licensors. Asolva and the Asolva logos are trademarks, service marks and/or registered trademarks of Asolva, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Asolva. Other product and company names may be trade or service marks of their respective owners. Asolva may have patents, patent applications, trademarks, copyrights, or other intellectual property rights in the United States and/or other countries covering subject matter that is part of the Modules. Except for the licenses to our intellectual property specifically provided for in this Agreement, Asolva does not give Client any other license to its intellectual property.
- 8.2. Asolva may only use data that allows a specific patient to be personally identified (“Patient Data”) for the purpose of providing Services to Client. Asolva may use de-identified data for its general business purposes, including developing and improving the Services.
9. Use of Marks: During the Term, Client grants Asolva a limited, non-exclusive, non-transferable, royalty-free license to use Client’s name, logo and other trademarks (“Client Marks”) solely for display on (a) the Services provided to Client, (b) training and marketing materials, (c) on Asolva’s website, and (d) in a written case study on Client’s use of the Services. Asolva shall comply with any written trademark usage guidelines that Client provides. This Agreement shall not create any right, title or interest in the Client Marks other than as expressly stated in this Section and all goodwill associated with the Client Marks will inure to the benefit of Client.
10. Compliance: Each party will comply with all laws and regulations that apply to its activities under this Agreement, including the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Client shall maintain all licenses, permits and approvals needed to conduct its business.
- 11.1. Client expressly acknowledges that (a) neither Asolva nor its personnel provide medical advice, (b) neither Asolva nor its personnel recommend, endorse or discourage any specific tests, physicians, products, procedures, opinions or other information that may be contained in the Services, (c) reliance on any information provided by the Services is solely at the risk of Client, and (d) neither Asolva nor its personnel shall have any liability or obligation to Client with respect to any of the matters described in the foregoing clauses (a) through (d) of this Section. Client will not make any representations that are inconsistent with these acknowledgements.
- 11.2. Client is solely responsible for the networks, hardware, software, connectivity and third party services that Client uses in connection with the Services.
- 12. Feedback. If Client provides Asolva any feedback or suggestions about the Services, Asolva may use the feedback and suggestions for any purpose without attribution, accounting or compensation to Client.
13. NO WARRANTY:
- 13.1. ASOLVA HEREBY REPRESENTS AND WARRANTS THAT THE MODULES WILL SUBSTANTIALLY PERFORM IN ACCORDANCE WITH ITS DOCUMENTATION. OTHER THAN AS STATED IN THE PRECEDING SENTENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MODULES, DOCUMENTATION AND FEEDBACK ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES DISCLAIM ALL WARRANTIES AND REPRESENTATIONS WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. THE PARTIES DO NOT PROMISE THAT THE MODULES, DOCUMENTATION, OR FEEDBACK WILL MEET THE OTHER PARTY’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR FREE, OR THAT CLIENT’S CONTENT WILL BE AVAILABLE, SECURE OR FREE FROM LOSS.
- 13.2. THE PARTIES DO NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY THIRD-PARTY MATERIALS, PRODUCTS, SERVICES OR OFFERS ACCESSIBLE THROUGH THE MODULES, ASOLVA’S ONLINE PROPERTIES, OR THE FEEDBACK. THE PARTIES ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT SUCH THIRD PARTIES AND THE OTHER PARTY ENGAGES WITH THEM AT ITS OWN RISK.
- 13.3. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON STATUTORY RIGHTS, SO THIS DISCLAIMER MAY NOT APPLY TO THE PARTIES.
- 14. CLIENT’S RESPONSIBILITY TO PROTECT CONTENT. CLIENT IS RESPONSIBLE FOR MAINTAINING APPROPRIATE SECURITY MEASURES, INCLUDING USING ADDITIONAL ENCRYPTION TECHNOLOGY TO PROTECT ITS CONTENT FROM UNAUTHORIZED ACCESS AND DISCLOSURE, AND FOR KEEPING BACKUP COPIES OF ALL CONTENT. ASOLVA HAS NO RESPONSIBILITY OR LIABILITY FOR DELETION, CORRUPTION OR OTHER DAMAGE TO OR LOSS OF CONTENT.
15. LIMITS OF LIABILITY:
- 15.1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING UNDER THIS AGREEMENT, FROM THE USE OR INABILITY TO USE OR ACCESS THE SERVICES, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS OR NETWORK OR INTERNET FAILURE.
- 15.2. EXCEPT FOR LIABILITY ARISING OUT OF ANY BREACH OF ASOLVA’S CONFIDENTIALITY OBLIGATIONS, ASOLVA’S CUMULATIVE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CLIENT FOR THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
16. Indemnification, Infringement:
- 16.1. Asolva will indemnify, defend and hold Client harmless from any loss, damage or cost (including reasonable attorneys fees) arising out of any third-party claims alleging that Asolva’s proprietary technology that provides the Services, in the form provided by Asolva, infringes any U.S. patent, or incorporates any misappropriated U.S. trade secret. Upon notice of an alleged infringement or if, in Asolva’s opinion, such a claim is likely, Asolva shall have the right at its option to (a) obtain the right for Client to continue using the Services or (b) replace or modify the Services so that they become non-infringing without substantially compromising their capabilities or functionalities. In the event that none of these options is reasonably available in Asolva’s opinion, Asolva may terminate the affected Service or this Agreement and refund the pro rata portion of any corresponding prepaid fees based upon the percentage of the term that has transpired. The foregoing obligations shall not apply with respect to Client’s misuse or modifications to the Services, or Client’s use of the Services in combination with any element not provided by Asolva. The provisions of this Section constitute Client’s sole and exclusive remedies and Asolva’s entire obligation to Client with respect to such infringement.
- 16.2. Client will indemnify, defend and hold Asolva harmless from any loss, damage or cost (including reasonable attorneys fees) arising out of any third-party claims arising out of or related to Client’s violation of any applicable law or regulation (including HIPAA) or breach of this Agreement.
- 16.3. To qualify for such defense and/or payment, the indemnified party must (a) give the indemnifying party prompt written notice of any such claim (unless the failure to notify does not materially and adversely affect the indemnifying party’s ability to defend the claim), (b) allow the indemnifying party to control the defense and all related settlement negotiations, and (c) fully cooperate with the indemnifying party in the defense and in any related settlement negotiations, at the indemnifying party’s expense. The indemnifying party will not enter into any settlement or compromise that would result in liability to the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party may engage independent counsel of its choosing at its own cost and expense.
- 17.1. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, personnel, technology, services and products, including the terms of this Agreement (“Confidential Information”). Each party will use the same care to protect the other party’s Confidential Information as it uses for its own similar information, but in no event less than reasonable care, will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement and will disclose Confidential Information to third parties only as required by law or to its attorneys, accountants and other advisors who need to know such information and are bound by confidentiality obligations consistent with this Agreement.
- 17.2. Confidential Information does not include any information that: (a) is known to the receiving party prior to receipt from the disclosing party, (b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party, (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party, or (d) is independently developed by the receiving party without reliance on the Confidential Information.
- 18. Audit Rights. Asolva reserves the right to audit, at Asolva’s sole cost and expense, Client’s compliance with any access or licensing restrictions contained in this Agreement subject to the following restrictions: (a) Asolva shall request an audit upon at least thirty (30) days prior written notice to Client; (b) Asolva shall follow all of Client’s policies and procedures regarding access Client’s premises and equipment; and (c) Asolva may not request an audit more than once per calendar year.
- 19.1. A party may terminate this Agreement immediately if the other party materially breaches any term or condition of this Agreement and fails to cure such breach within 30 days of receiving a written notice to cure. Immediately upon expiration or termination of this Agreement, Client will stop accessing and using the Modules, return or destroy any documentation in Client’s possession, and both parties will abide by the requirements regarding Confidential Information in Section 17.
20. Export: Client may not access or use the Modules except as authorized by United States law, the laws of its jurisdiction and any other applicable laws or regulations. Without limiting this general prohibition, Client may not transfer access to the Modules to anyone on the U.S. government Lists of Parties of Concern (see http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern). U.S. Government software that is downloaded or used for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with restricted rights. Use, duplication and disclosure by the U.S. Government are subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. The manufacturer is Asolva Inc., 215 N. Marengo Avenue, Suite 202, Pasadena, CA 91101.
- 21.1. As between Asolva and Client, Asolva exclusively owns all right, title and interest in the Services, the de-identified data generated as output of the Services and all intellectual property rights related to the foregoing. Asolva reserves all rights not expressly granted herein.
- 21.2. The Agreement is governed by the laws of the State of California, excluding its choice of laws principles. Except for the optional arbitration described in this Section 21, the parties will resolve any disputes in the courts of Los Angeles County, California. Excluding claims for equitable relief, if the total amount in dispute is less than Ten Thousand United States Dollars (USD $10,000), either party may elect to resolve the claim through binding arbitration by initiating arbitration through an established provider that is agreed by the parties. The arbitration must be conducted under the following rules: (a) at the choice of the party seeking relief, the arbitration shall be conducted by telephone, online, or solely on written submissions; (b) no party or witness will make any personal appearance unless the parties agree otherwise; and (c) the prevailing party may have the arbitrator’s award entered as a judgment in any court of competent jurisdiction. Whether in court or in arbitration, the initiating party must bring all claims in its individual capacity and not as a plaintiff or class member in a class action or similar proceeding.
- 21.3. This Agreement (including each Addendum and any statements of work) constitutes the complete understanding between the parties with respect to this subject matter and supersedes all other written or oral agreements and representations. If any provision in this Agreement is unenforceable, the remaining provisions will continue in full force provided the original intent of the parties can still be fulfilled, and the unenforceable provision shall be modified to the minimum extent necessary to be effective. This Agreement may be modified only in a writing executed by both parties. This Agreement may be executed in one or more counterparts, including by electronic signature.
- 21.4. A party’s failure to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy.
- 21.5. Neither party may assign this Agreement or the rights or obligations hereunder without the express written consent of a duly authorized signatory of the other party, except that a party may assign all of its rights and obligations, with written notice, to its affiliates or to a third party who has acquired all or substantially all of the business or assets of such party related to the performance of this Agreement through a sale, merger, consolidation, reorganization, or similar transaction. Any attempted assignment in violation of the previous sentence shall be null and void. Except as set forth above, this Agreement shall inure to the benefit of and be binding upon the parties, their successors and permitted assigns.
- 21.6. Except for payment obligations, no party shall be liable for a failure or delay in performing any of its obligations under this Agreement if, but only to the extent that, such failure or delay is due to causes beyond the reasonable control of the affected party.
- 21.7. Client will designate a Client Administrator as its point of contact with Asolva. Asolva will communicate with Client by emailing the address associated with the Client Administrator. Client is responsible for notifying Asolva in writing when a Client Administrator has been assigned and/or there is a change of contact information of a Client Administrator. Client can provide any notices to Asolva under this Agreement at the contact information appearing below or to such other place as Asolva may designate in writing.Asolva, Inc.
215 N. Marengo Avenue, Suite 202
Pasadena, CA 91101
Attention: Asolva Legal
- 21.8. The parties are independent contractors. Nothing in this Agreement creates an agency relationship, partnership, joint venture, or any similar relationship between the parties. There are no third party beneficiaries to this Agreement.