| ORQA, LLC Software Subscription Agreement | | Print | |
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BY SUCCESFULLY AUTHENTICATING AND USING THE ORQA SOFTWARE THAT YOU HAVE SELECTED TO PURCHASE IN THE ORDERING PROCESS (THE "SOFTWARE"), YOU ARE AGREEING ON BEHALF OF THE ENTITY LICENSING THE SOFTWARE ("COMPANY") THAT COMPANY WILL BE BOUND BY AND IS BECOMING A PARTY TO THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") AND THAT YOU, OR THE INDIVIDUAL THAT SIGNED THE PURCHASE ORDER LICENSING THE SOFTWARE, HAVE THE AUTHORITY TO BIND COMPANY. IF COMPANY DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. COMPANY HAS NOT BECOME A LICENSEE OF, AND IS NOT AUTHORIZED TO USE THE SOFTWARE UNLESS AND UNTIL IT HAS AGREED TO BE BOUND BY THESE LICENSE TERMS. THE "EFFECTIVE DATE" FOR THIS AGREEMENT SHALL BE THE DATE INDICATED AS THE “EFFECTIVE DATE” ON THE QUOTATION (“QUOTATION”) COMPANY RECEIVED FROM ORQA (“SERVICE PROVIDER”).
1. Services.
1.1 Subscription Services. Subject to the terms of this Agreement, Service Provider will provide use and access to the Software as described in the Quotation on a Software as a Service (“SaaS”) basis, subject to Company’s payment of the subscription fees, in accordance with Section 2 (collectively “Subscription Services”).
1.2 Support Services. Service Provider will provide Company the right to receive support pursuant to the Standard Support Services Plan or to purchase an Extended Support Services Plan or a Premium Support Services Plan, all as described at http://www.orqa.org/solutions/sla (“Support Services Levels”)
1.3 Implementation Services. Service Provider will also provide the implementation services described in the Quotation (“Implementation Services”).
1.4 Professional Services. At Company’s request, Service Provider will provide additional professional services, including integration, custom development and other related services (“Professional Services”), in accordance with a mutually agreed upon statement of work entered into concurrently with or after execution of this Agreement (each, an “SOW” or “Statement of Work”). Each SOW will be effective only upon execution of such SOW by both parties and the execution of this Agreement. If the scope of work in a particular SOW changes, the terms of this Agreement and such SOW, including any applicable rates and estimates of amount of time required to complete the work, may be modified by mutual agreement of the parties. In the event of a conflict between this Agreement and any SOW attached hereto, the terms of this Agreement shall control.
2. FEES AND PAYMENT TERMS.
2.1 Fees. The applicable fees for the Subscription Services, the Implementation Services, Support Services and other services will be stated in the Quotation, and if applicable, supplemental Quotations (collectively “Fees”). In the event that Company requests that additional users be able to access the Subscription Services or to access additional modules, Service Provider will issue a supplemental Quotation with the additional Fees to be paid by Company. Such supplemental quotation will be deemed incorporated herein by reference and governed by this Agreement. Fees are exclusive of out-of-pocket expenses.
2.2 Expenses. Company will pay or reimburse Service Provider upon receipt of invoices for out-of-pocket expenses, including, without limitation, travel and travel-related expenses, incurred by Service Provider in connection with the performance of the Services.
2.3 Taxes. Company will pay or reimburse Service Provider for all sales, use, transfer, privilege, excise and all other taxes and all duties, which are imposed due to the performance by Service Provider under this Agreement, excluding, however, income taxes on profits which may be levied against Service Provider.
2.4 Invoicing. Unless otherwise stated in the Quotation, Company shall pay Service Provider the Fees annually in advance on the Effective Date and thereafter on the anniversary date of the Effective Date. Service Provider will submit invoices for Fees to Company upon indication of acceptance of the Quotation by the Company.
2.5 Late Payments. If Company fails to pay any fees (except fees disputed by Company in good faith) by the applicable due date, Service Provider will have the right to: (a) assess late charges in an amount equal to one and a half percent (1.5%) per month or the maximum allowable under applicable law, whichever is less; (b) terminate the license to the Software; (c) suspend performance of the Services; and/or (d) terminate this Agreement. Company will be responsible for any collection costs, including attorneys’ fees.
2.6 Disputed Invoices. Company may withhold payment of that portion of the invoiced Fees that are disputed by Company in good faith, provided that Company (a) pays by the date due all invoiced amounts that are not subject to the dispute, (b) notifies Service Provider in writing of the reasons for the dispute by the date that the invoiced amounts would otherwise be due, and (c) promptly meets with Service Provider to resolve the dispute as soon as possible, but in any event within thirty (30) days.
3. Confidentiality
3.1 Use and Disclosure. Confidential Information" means all information related to the business of each Party ("Disclosing Party") including, trade secrets, the Software, pricing, technical information, business forecasts and strategies, marketing plans, financial data, Company Data as defined in Section 6.4, and proprietary information disclosed or otherwise made available by the Disclosing Party to the other Party ("Receiving Party") , in each case that is labeled or identified as "confidential" or "proprietary" or should be reasonably considered to be “confidential” based on the circumstances of its disclosure. During and after the term of this Agreement, Receiving Party will (a) hold all Confidential Information of the Disclosing Party in strict trust and confidence, (b) refrain from using or authorizing others to use Confidential Information of the Disclosing Party in any manner or for any purpose not expressly permitted or required by this Agreement, and (c) refrain from disclosing or authorizing others to disclose any Confidential Information of Disclosing Party to any third party without obtaining Disclosing Party’s express prior written consent on a case-by-case basis.
3.2 Standard of Care. Receiving Party will protect the Confidential Information of Disclosing Party from unauthorized use, access, or disclosure in the same manner as Receiving Party protects Receiving Party’s own confidential or proprietary information of a similar nature, which shall be no less than the reasonable standard of care applicable to such information.
3.3 Exceptions. Receiving Party’s obligations under Sections 3.1 and 3.2 will not apply to any particular information that: (a) Receiving Party lawfully knew prior to Disclosing Party’s disclosure to Receiving Party; (b) a third party rightfully disclosed to Receiving Party free of any confidentiality duties or obligations, (c) is, or through no fault of Receiving Party has become, generally available to the public, or (d) is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information or breach of the obligations under this Agreement. Additionally, Receiving Party will be permitted to disclose Confidential Information of Disclosing Party to the extent that such disclosure is expressly approved in writing by Disclosing Party, or is required by law or court order, provided that Receiving Party immediately notifies Disclosing Party in writing of such required disclosure and cooperates with Disclosing Party, at Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure, including filing motions and otherwise making appearances before a court.
3.4 Return. Upon Disclosing Party’s request and upon any termination or expiration of this Agreement, Receiving Party will promptly (a) return to Disclosing Party or, if so directed by Disclosing Party, destroy all tangible embodiments of the Confidential Information of Disclosing Party (in every form and medium), (b) permanently erase all electronic files containing or summarizing any Confidential Information of Disclosing Party, and (c) certify to Disclosing Party in writing that Receiving Party has fully complied with the foregoing obligations.
4. License and Ownership
4.1 Scope. Service Provider hereby grants to Company for the duration of the Term, a limited, non-exclusive, non-transferable license to use for Company’s own internal business the Software, provided hereunder by Service Provider to Company, subject to the license scope and other restrictions in this Agreement.
4.2 License Restrictions. Without Service Provider’s prior written consent, Company may not: (i) copy, sublicense, distribute, rent, lease, loan, resell, modify or translate the Software or create derivative works based thereon; (ii) "mirror", “proxy” or “cache” any Software or other content on Service Provider’s web site, on any other server or network management device; (iii) to the extent applicable, directly or indirectly decompile, disassemble, reverse engineer or otherwise attempt to learn the source code, structure, algorithms or ideas underlying such Software; (iv) provide service bureau, time share or subscription services based on the Software; or (v) remove, obscure or modify any markings, labels or any notice of the proprietary rights, including copyright, patent and trademark notices of Service Provider or its licensors in such Software. Service Provider and its licensors, as applicable, retain all ownership and intellectual property rights to the Software. If Company acquires any rights to the Software or Documentation, Company hereby assigns all of those rights to Service Provider or its licensors, as applicable. No license rights are granted (whether by implied license or otherwise), to Company, except as expressly provided in this section.
4.3 Other Restrictions. Company shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
4.4 Third Party Programs. Service Provider may distribute third party software programs with the Software. These third party programs are subject to their own license terms. If Company does not agree to abide by the applicable license terms for such programs, then Company may not install them. If Company wishes to install the programs on more than one system or transfer the programs to another party, then Company must contact the licensor of the programs.
5. Cooperation and Assistance. Each Party will provide reasonable cooperation and assistance to the other in connection with the performance of Services hereunder and to otherwise carry out the purposes of this Agreement. Company understands and agrees that the completeness and accuracy of and extent of access to the Company information provided to Service Provider may affect Service Provider's ability to provide Services. Company shall obtain all consents necessary from third parties for Service Provider to perform its obligations under this Agreement and shall indemnify and hold Service Provider harmless with respect to any failure by Company to obtain the necessary consents.
6. Representations and Warranties
6.1 General. Each of Service Provider and Company represents and warrants that it has the full right, power and authority to enter into this Agreement.
6.2 Performance. Service Provider warrants to Company that the Services will be performed in a professional and workmanlike manner by qualified personnel. Service Provider’s sole obligation and liability and Company’s sole and exclusive remedy for breach of this warranty shall be for Service Provider to reperform any Services brought to its attention within thirty (30) days after the Services are performed.
6.3 Disclaimer. Except as expressly set forth in this Section 6, the Services and Software are provided to Company "AS IS" and Service Provider and its suppliers HEREBY DISCLAIM ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE SERVICES, AND SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, PERFORMANCE, QUALITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Service Provider makes no warranty that the availability and functionality of the Software, the Services, or access to the Services via the internet, are or will be uninterrupted, timely, secure, or error free.
7. Ownership and Responsibility for Company Data; Data Protection. Service Provider does not own any data, information or material that Company submits to Service Provider in the course of using the Services ("Company Data"). Company, not Service Provider, shall have sole responsibility for the Company Data, including, its accuracy, quality, integrity, reliability or completeness. To the extent Service Provider is given access to Company Data, Service Provider will comply with its privacy and security policies as disclosed on its web site and with the confidentiality obligations under Section 3, with respect to such Company Data. However, Company is responsible for establishing and maintaining adequate security, virus protection, backup and disaster recovery plans for any Company Data residing on Company’s facility or electronic networks. This responsibility includes maintaining secure network and network security components, firewalls and security-related hardware or software, preventing unauthorized access to the Company Data and preventing interception of communications between Company’s site and Service Provider’s web site. Company further acknowledges and agrees that the Services that Service Provider will be providing does not require Service Provider to access, process or in any way manipulate any personally identifiable information of Company’s end-user Companys, including protected health information of its patients and Company shall ensure that it does not disclose to Service Provider any such personally identifiable information without obtaining the necessary written consents from the end-user Company or patient, and to otherwise comply with applicable laws with respect to such information.
8. Limitation of Liability. In no event will either Party be liable for any consequential (including lost profits, lost revenues, or cost of cover) indirect, exemplary, special, or incidental damages arising from or relating to this Agreement. Except for Company’s obligation to pay the Fees which is not limited hereby, Each Party’s total cumulative liability arising from or related to this Agreement, whether in contract or tort or otherwise, will not exceed the aggregate amount of Fees paid by Company to Service Provider for the 12 months preceding the claim.
9.1 Term. The term of this Agreement and provision of Services hereunder will commence on the Effective Date and will remain in effect thereafter for a period of one (1) year unless terminated earlier in accordance with the terms herein. Thereafter, the term for the Support Services will renew for successive terms of one (1) year each, unless a different term is agreed to by the parties at the time of renewal, and unless either party gives written notice to the other of its intention not to renew at least sixty (60) days before commencement of the next term.
9.2 Termination by Company. Company may terminate this Agreement immediately upon written notice to Service Provider if Service Provider materially breaches this Agreement and does not cure the breach within thirty (30) days after Service Provider's receipt of written notice from Company specifying the breach.
9.3 Termination by Service Provider. Service Provider may terminate this Agreement: (a) immediately upon written notice to Company if Company fails to pay an undisputed amount owed to Service Provider under this Agreement when due and does not make the payment within fifteen (15) days after Company's receipt of written notice from Service Provider specifying the breach; or (b) if Company breaches this Agreement and does not cure the breach within thirty (30) days after Company’s receipt of written notice from Service Provider specifying the breach .
9.4 Effects of Termination
9.4.1 Survival. 3 (Confidentiality), 4.2 (License Restrictions), 6.3 (Warranty Disclaimer), 7 (Limitation of Liability), 8.4 (Effects of Termination) and 9 (General) will survive any termination or expiration of this Agreement. Termination or expiration of this Agreement will not affect either Party’s liability for any breach of this Agreement such Party may have committed before such expiration or termination.
9.4.2 Compensation. Upon expiration or termination of this Agreement, Company will pay Service Provider for all Services provided up to the effective date of such termination and reimburse Service Provider for related reimbursable expenses incurred by Service Provider before the effective date of such termination.
9.4.3 Return of Company Data. Upon termination for any reason, Service Provider will export the Company Data in either PDF or raw SQL file format and return it to Company along with data structure documentation in XML file format. Service Provider is not obligated to perform migration or data conversion services of any kind.
10. General Provisions
10.1 Governing Law; Venue. This Agreement is governed by the laws of the State of Illinois without reference to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Company and Service Provider irrevocably consent to the personal jurisdiction of the state and federal courts located in Cook County, Illinois for any suit or action arising from or related to this Agreement, and waive any right each may have to object to the venue of such courts. Company and Service Provider further agree that these courts will have exclusive jurisdiction over any suit or action initiated by one Party against the other. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT.
10.2 Alternative Dispute Resolution. Except for matters related to confidentiality or intellectual property rights, the parties shall first attempt to resolve any dispute or alleged breach internally by escalating it through management and if necessary, and scheduling a face-to-face meeting within thirty (30) days after one party gives written notice to the other party of the dispute to resolve the dispute amicably. If despite this attempt the dispute is not resolved, prior to pursuing litigation, the parties shall use a mutually acceptable alternative dispute resolution process, including mediation or binding arbitration.
10.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.4 No Assignment. Each Party’s rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, without the other Party’s express prior written consent; provided, however, that Service Provider shall have the right to assign this Agreement pursuant to a merger, reorganization, consolidation or sale of all or substantially all of the assets of the business of Service Provider to which this Agreement relates. Except as otherwise provided herein, any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void.
10.5 Notices. Each Party must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to the other Party at the address listed on the signature page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized overnight carrier. Notice will be effective upon receipt or refusal of delivery. Each Party may change such Party’s address for receipt of notice by giving notice of such change to the other Party.
10.6 Remedies. Each Party’s remedies for any breach of Section 3, and Service Provider’s remedies for Company’s breach of Section 4.2, of this Agreement may include damages, injunctive relief, specific performance, and restitution. Each Party acknowledges that any such breach would cause irreparable injury to the other Party or to Service Provider, as the case may be, for which money damages would be inadequate and, therefore, the non-breaching Party will be entitled to injunctive relief (including specific performance) for such breach. Except as expressly provided herein, subject to Section 8, the rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity.
10.7 Construction. Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement. When used in this Agreement, "including" means "including without limitation." Whenever a Party’s consent or approval is required under this Agreement, such Party may grant or deny its consent or approval in its reasonable discretion. No rule of strict construction will be applied in the interpretation or construction of this Agreement. This Agreement and Statements of Work may be executed in counterparts, all of which taken together constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission.
10.8 Independent Contractor Relationship. Service Provider’s relationship to Company under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Company and Service Provider.
10.9 Waiver. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.10 Marketing. Each party has the right to use the other party’s name for promotional purposes only, subject to the approval of the other party, which approval shall not be unreasonably withheld. Either party may at any time make media releases, public announcements or other disclosures relating to the existence of this Agreement and the general nature of the Services, provided that specific Confidential Information of the other party is not disclosed. Such media releases, public announcements or other disclosures shall be for promotional purposes only, subject to the approval of the other party, which approval shall not be unreasonably withheld. Company also agrees that upon reasonable prior notice from Service Provider, Company will be willing to provide a reference for Service Provider (e.g., in the form of client telephone calls, presentations, and the like).
10.11 Export Restrictions. Company will comply fully with all relevant export laws and regulations.
10.12 Entire Agreement; Amendments. This Agreement including the Quotation, all Quotation attachments and exhibits thereto, is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the Parties. No modification of or amendment to this Agreement will be effective unless in writing and signed by the Party to be charged. In the event of a conflict between the terms in this Agreement and the Quotation, exhibits or other attachments, the terms in the Agreement will control.
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