Terms & Conditions
These Software License Terms and Conditions (the “Terms and Conditions”) govern the grant of a software license or associated services from CORNERSTONE DATA, INC., a Kansas corporation (the “Licensor”), when incorporated by reference into a Master Services Agreement executed by the Licensor and the party identified therein (the “Licensee”).
- “Agreement” means collectively (i) these Terms and Conditions, and (ii) the Master Services Agreement.
- “Authorized User” means each of the individuals authorized to use the Software as identified in the Master Services Agreement.
- “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the disclosing party considers confidential or proprietary, including information consisting of or relating to the disclosing party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the disclosing party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.”
- “Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the Software that Licensor provides or makes available to Licensee in any form or medium which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
- “Effective Date” means the date of the Master Services Agreement.
- “Force Majeure Event” has the meaning set forth in Section 11(f)(i).
- “HIPAA” means the Health Insurance Portability and Accountability Act of 1996.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “License” means the rights granted by Licensor to Licensee to use the Software and Documentation in accordance with, and subject to, the terms, conditions, and limitations of the Master Services Agreement and these Terms and Conditions.
- “Licensed Software” ” means the Software to be provided by Licensor to Licensee under the Master Services Agreement.
- “Master Services Agreement” means that particular Master Services Agreement between Licensor and Licensee.
- “Permitted Use” ” means use of the Software by Licensee in the ordinary course of its business operations and in accordance with the Master Services Agreement.
- “Software” means all computer programs owned by Licensor (or licensed from third parties) for which a license is granted to Licensee pursuant to the Master Services Agreement. This definition includes the existing version of Software and any future versions which may be modified or supplemented by any update, upgrade, or at Licensor’s discretion through the addition or discontinuance of various product or service offerings. With respect to Licensee’s rights under the Master Services Agreement, the Software consists of its object code only.
- “Software Error” means malfunction of the of the Licensed Software that causes reproducible performance failure in the absence of corrupt Licensee data files.
- Grant of License. Subject to and conditioned on Licensee’s payment of all fees and compliance with the applicable Documentation and all other terms and conditions of the Master Services Agreement and these Terms and Conditions. Licensor hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable license to use the Software and Documentation solely for the Permitted Use during the Term (as defined herein).
- Ownership. The Master Services Agreement does not grant to Licensee any ownership interest in the Licensed Software. Rather, Licensee has a license to use the Licensed Software as provided in the Master Services Agreement and these Terms and Conditions. Licensee hereby agrees and acknowledges that Licensor owns all right, title, and interest in the Licensed Software and Licensee will not contest those rights or engage in any conduct contrary to those rights. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from the Software made by or at the direction of Licensee shall be owned solely and exclusively by Licensor, as shall all patent rights, copyrights, trade secret rights, trademark rights, and all other Intellectual Property Rights therein and thereto.
- Restriction. Licensee’s use of the Licensed Software shall be subject to the following restrictions:
- Licensee shall not cause the Licensed Software in any way to be disassembled, decompiled or reverse engineered, nor shall any attempt to do so be undertaken or permitted;
- Licensee shall not make the Licensed Software available for access or use by any person or entity other than Licensee’s employees, including, but not limited to, acting as a service bureau; and
- Licensee shall not copy, translate, port, modify, upload, post, publish or create derivative works of the Licensed Software
3. SUPPORT AND MAINTENANCE
- Upgrades. Licensor shall, at its discretion, provide generally available upgrades to Licensee during the Term. Licensor retains absolute discretion as to the timing and content of any updates which may be provided.
- Support. Licensor will provide Licensee with reasonable telephone support regarding use and operation of the Licensed Software during Licensor’s normal hours of support.
- Troubleshooting. Licensor shall verify any potential Software Error detected by Licensee at no additional cost if such Software Error can be reproduced through a test file using the appropriate release of the Licensed Software. If verified by Licensor, Licensor shall correct the Software Error to substantially comply with the Master Services Agreement and any operational specifications. If the Licensor determines the Software Error was caused by improper data entry, hardware failure, improper use of the Licensed Software by Licensee, or any other events beyond Licensor’s control, Licensor shall bill Licensee its standard rates for verifying, diagnosing, and remedying (if possible) the problem.
- Exlusions. Licensor has no obligation to provide any services, maintenance or otherwise, for any problems or issues arising from or related to the following:
- the operation of the Licensed Software on or in association with hardware, equipment, or with software or services other than those supplied by Licensor;
- modification, alteration, or circumvention of the Licensed Software or any of its configuration, data files or libraries, or functionality by anyone other than Licensor;
- use of a version of the Licensed Software other than the most current release; or
- improper use, abuse, accident, or neglect, including without limitation, Licensee’s failure to maintain appropriate environmental conditions for the Licensed Software and associated hardware, equipment, and software.
- Support Terms and Fees.In consideration of the maintenance and support services offered by Licensor hereunder, Licensee shall pay the maintenance and support fees at the time and in the amounts as set forth in the Master Services Agreement.
- Term. The term of the Agreement shall commence on the Effective Date and shall continue for the period indicated in the Master Services Agreement, unless terminated earlier as set forth below.
- Termination. This Agreement may be terminated at any time:
- by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under the Master Services Agreement, where such failure continues more than thirty (30) days after Licensor’s delivery of written notice thereof;
- by Licensor, immediately on written notice to Licensee if any two (2) or more failures to pay occur in any twelve (12) month period
- by either Party, effective on written notice to the other Party, if the other Party materially breaches the Master Services Agreement or these Terms and Conditions and such breach is incapable of cure or, being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
- by Licensor, effective immediately, if the Licensee: (1) is dissolved or liquidated or takes any corporate action for such purpose; (2) becomes insolvent or is generally unable to pay its debts as they become due; (3) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (4) makes or seeks to make a general assignment for the benefit of its creditors; or (5) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
- Effect of Termination or Expiration.At the termination or expiration of the Master Services Agreement, (1) Licensee must (x) immediately cease all use of and other activities with respect to the Software and Documentation and (y) deliver to Licensor, or at Licensor’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Software and Documentation; and (2) all fees due to Licensor shall immediately become due and payable by Licensee to Licensor.
5. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
- Intellectual Property Rights and Confidentiality. Licensee agrees that the Licensed Software and Documentation, including the structure, sequence and organization of the Licensed Software are proprietary and confidential to Licensor, and Licensee will take all reasonable measures to protect the confidentiality of the Licensed Software and Documentation unless, and to the extent, Licensor makes them available to the public without such restrictions. Licensee further agrees that all right, title and interest in and to the Licensed Software (and all intellectual property rights embodied therein) or any modification or improvement thereof made by Licensor is proprietary to Licensor. All rights therein not expressly granted to Licensee under the Master Services Agreement are reserved by Licensor.
- Unauthorized Disclosure. Licensee shall notify Licensor immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach by Licensee of its confidentiality obligations, and shall fully cooperate with Licensor to help Licensor regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.
6. HIPAA COMPLIANCE
- Licensor recognizes that Licensee is a covered entity under HIPAA rules and that Licensor, when performing required services under the Master Services Agreement will be considered a business associate. Licensor agrees that it shall be bound by the obligations of a business associate as set forth in the HIPAA Business Associate Agreement attached to the Master Services Agreement and incorporated herein by reference.
- Licensee, or an agent thereof, may have access to protected health information in conjunction with its use of the Licensed Software. Licensee agrees it shall be solely responsible for Licensee’s HIPAA compliance.
Licensee shall indemnify and hold harmless Licensor and its officers, agents and employees from and against any claims, demands, or causes of action whatsoever relating to the Master Services Agreement, including without limitation those arising out of, or resulting from, the exercise or practice of the license granted hereunder by Licensee, its subsidiaries or their officers, employees, agents or representatives.
8. WARRANTY DISCLAIMER
THE LICENSED SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS.” LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS RELATING TO THE LICENSED SOFTWARE, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY EXCLUDES THE WARRANT OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL SATISFY LICENSEE’S REQUIREMENTS, THAT THE LICENSED SOFTWARE IS WITHOUT DEFECT OR ERROR OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERUPTED.
9. LIMITATION OF LIABILITY AND INTERNET USAGE
- Limitation of Liability. LICENSOR SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Internet Usage. Licensee acknowledges that, in connection with the services provided under this Agreement, information shall be transmitted over a local exchange, interexchange and Internet backbone carrier lines and through routers, switches and other devices, owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet service providers, and others, all of which are beyond the control and jurisdiction of Licensor. Accordingly, Licensor assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with the services provided under this Agreement. Licensor further makes no warranty and assumes no liability regarding the availability, reliability, or suitability of any Internet service provider or digital subscriber line services.
- Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under the Master Services Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under the Master Services Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent. No assignment, delegation, or transfer will relieve Licensee of any of its obligations or performance under the Master Services Agreement. Any purported assignment, delegation, or transfer in violation of this section. The Master Services Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
- Severability. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of the Master Services Agreement and the Terms and Conditions shall not be affected thereby.
- Publicity. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Master Services Agreement or, unless expressly permitted under the Master Services Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld, provided, however, that Licensor may, without Licensee’s consent, include Licensee’s name and other indicia in its lists of Licensor’s current or former customers of Licensor in promotional and marketing materials.
- Force Majeure.
- In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached the Master Services Agreement, for any failure or delay in fulfilling or performing any term of the Master Services Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate the Master Services Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
- In the event of any failure or delay caused by a Force Majeure Event, Licensor will give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- Amendment and Modification: Waiver. No amendment to or modification of the Master Services Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions of the Master Services Agreement or Terms and Conditions is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Master Services Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Master Services Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Compliance. Licensee shall comply with, and shall cause its personnel to comply with, all applicable foreign and United States federal, state and local laws, licenses and regulations related to or arising out of the Master Services Agreement, including, without limitation and as applicable, all laws and regulations related to promotion of pharmaceutical products, fraud and abuse, insider trading, discrimination, confidentiality, false claims and prohibition of kickbacks. For the avoidance of doubt, Licensee shall comply with (1) the Anti-Kickback provisions of the Social Security Act, 42 U.S.C. § 1320a-7b, and the relevant regulations at 42 C.F.R. § 1001 (“Healthcare Fraud and Abuse Laws”); (2) the False Claims Act, 31 U.S.C. § 3729-33; and (3) the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 201, et seq. and the relevant regulations at 21 C.F.R. § 202. Licensee understands and agrees that Licensor does not give, and is not obligated to provide, any legal or accounting advice and does not represent or warrant that use by Licensee of the Software in the conduct of Licensee’s business will comply with all applicable federal or state laws. Licensee acknowledges that it will be relying upon its own legal counsel and accountants for advice on compliance with applicable laws and accounting requirements. It is Licensee’s obligation to inform Licensor of any legal requirements applicable to the Software and to assess the Software to ensure that such legal requirements are satisfied. Licensee will defend, indemnify and hold harmless Licensor, its affiliates, subsidiaries, employees, and authorized contractors for any losses suffered by Licensor as a result of Licensor relying on any information provided by Licensee regarding the legality of the manner in which Licensee conducts its business.
- Governing Law. The Master Services Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of Kansas as applied to transactions taking place wholly within Kansas between Kansas residents. The parties exclude in its entirety the application to the Master Services Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
- Jurisdiction and Venue. The Kansas state courts of Sedgwick County, Kansas (or, if there is exclusive federal jurisdiction, the United States District Court for the Sedgwick County District of Kansas) shall have exclusive jurisdiction and venue over any dispute arising out of the Master Services Agreement, and Licensee hereby consents to the jurisdiction of such courts.
- Waiver. Failure of either party at any time to enforce any of the provisions of the Master Services Agreement shall not per se constitute a waiver by that party of any such provision nor in any way affect the right of such party to enforce such provision at any other or subsequent time.
- Entire Agreement. The Master Services Agreement constitutes the entire understanding and agreement between the parties and cancels and supersedes all prior negotiations, representations, understandings, and agreements (both oral and written).