Date Last Revised: October 29th, 2018
THIS LICENSE AND SERVICES AGREEMENT (“Agreement”) is made and entered into today (“Effective Date”), by and between Celéri Health, Inc., a Delaware corporation (“Celéri”), and you (“Customer”). For purposes of this Agreement, Celéri and Customer shall be referred to individually as a “Party” and collectively as the “Parties”.
NOW, THEREFORE, in consideration of the foregoing, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereto hereby agree as follows:
1.1 Subject to Customer’s continued compliance with the terms and conditions of this Agreement, including payment of the Fees set forth in Section 3, Celéri grants to Customer and Customer’s directors, officers, representatives, agents or employees (collectively, the “Designated Users”), a revocable, non-exclusive, non-perpetual, non-transferable license, except as specifically granted in Section 1.3 herein, to access and use the Celéri software applications (“Products”) as set forth in detail on the attached Schedule A. This Program is licensed, not sold. Your license confers no title or ownership in this Program and should not be construed as a sale of any rights in this Program. Upon the termination of this Agreement, the rights and licenses granted under this Agreement will automatically terminate, and neither Customer nor its Designated Users may continue to use the Products.
1.2 Customer may access and use the Products and related peripherals solely for its own internal business purposes, in compliance with applicable law, and shall not: (a) permit any third party to access or use the Products except as permitted herein, (b) create derivative works based on the Products; (c) modify, reverse engineer, translate, disassemble, or decompile the Products, or cause or permit others to do so; (d) access the Products in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Products; or (e) remove any applicable title, trademark, copyright and/or restricted rights notices or labels from the Products.
2.1 Subject to the terms and conditions of this Agreement, Celéri will provide the Customer with the following: (i) access to the Products during the Term of this Agreement; and, (ii) transmission and processing services, if applicable, provided by the Products (collectively, the “Services”).
2.2 The features and functions of the Products as of the Effective Date are set forth in Schedule A. Customer acknowledges and agrees Celéri may revise features and functions of the Products at any time, including, without limitation, by removing such features and functions.
After the 60 day free trial period, Customer agrees to provide a monthly payment to Celéri in the amount of three hundred twenty nine dollars ($329) per registered physician and physician's assistant in the practice. Coupon codes may from time to time reduce the effective rate as determined by Celéri. All payments shall be denominated in United States currency via: (i) a valid credit card acceptable to Celéri; a valid debit card acceptable to Celéri; or, (iii) any other payment option acceptable to Celéri evidenced in writing.
4.1 Customer and Celéri, each, acknowledges that in providing the Services under this Agreement, either party (the “Receiving Party”) may have access to information of the other party (the “Disclosing Party”) and that is of confidential or proprietary nature. For purposes of this Agreement, all non-public information (whether orally disclosed, provided electronically, or provided in tangible form, before or after the date of this Agreement) provided by the Disclosing Party (or on behalf of the Disclosing Party by one of its officers, directors, employees, representatives or advisors) to the Receiving Party regarding the Disclosing Party’s business dealings, clients, intellectual property, operations, affairs, services or products shall be referred to herein as “Confidential Information”. Confidential Information shall also include, but not be limited to: corporate information; strategies, tactics, and methods; employment and compensation information; financial reports or other information; operational information (including, but not limited to, information related to intellectual property, trade secrets, methods, know-how, and other proprietary information); information received by the Disclosing Party in confidence from customers, strategic partners or others and all notes, analyses, compilations, studies or other documents prepared by Receiving Party which contain such information. So long as this Agreement is in effect, and for five (5) years after the Termination thereof, Customer and Celéri, each, agrees to receive and hold all of the Confidential Information in strict confidence, and not to disclose such Confidential Information to any person, firm, corporation, association or other entity for any reason or purpose whatsoever, or make use of any such information for his own purposes or for the benefit of any person, firm, corporation or other entity (except the Disclosing Party) under any circumstances. The obligations of the parties with respect to Confidential Information extend to the handling of information as it pertains to provisions of the Health Insurance Portability and Accountability Act and its implementing regulations (collectively, “HIPAA”), as amended.
4.2 The provisions of this Paragraph 4 shall not apply to any Confidential Information that: (i) is now or subsequently becomes generally available to the public through no action, directly or indirectly, of the Receiving Party; (ii) the Receiving Party can demonstrate has been independently developed by the Receiving Party without reference to Confidential Information; (iii) the Receiving Party can demonstrate was available to the Receiving Party on a non-confidential basis prior to its production by the Disclosing Party; (iv) is disclosed by the Receiving Party with the prior written consent of the Disclosing Party; (v) becomes known to the Receiving Party on a non-confidential basis from a third party source with no confidentiality obligations to the Customer; or (vi) is required to be disclosed by law, governmental regulation, or court order (subject to the provisions of Section 4.3 below).
4.3 In the event that the Receiving Party is requested or required by judicial process to disclose any of the Confidential Information, or any information relating to the Receiving Party’s opinion, judgment or recommendations concerning the Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such request. The Receiving Party will not oppose any action by the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
5. Term & Termination. The term of this Agreement shall commence on the Effective Date and continue for the initial term of twelve (12) months and shall, unless terminated earlier as provided herein, renew for successive twelve (12) month terms (collectively, the “Term”). Either Party may terminate this Agreement: (i) in the event the other Party materially breaches this Agreement; and (ii) anytime after the first twelve (12) months for any reason, with or without cause, upon thirty (30) days prior written notice. Celéri may terminate this Agreement immediately with cause for Customer’s failure to pay any Fees. Upon termination or expiration of this Agreement, Customer shall immediately cease all use of, and shall immediately return or destroy all copies of, the Products.
IN NO EVENT SHALL CELÉRI BE LIABLE TO CUSTOMER, UNDER ANY LEGAL THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF CELÉRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE AGREEMENT OR ANY STATEMENT OF WORK, CELÉRI’S TOTAL CUMULATIVE LIABILITY UNDER THE AGREEMENT OR ANY STATEMENT OF WORK, OR AT LAW WITH RESPECT TO ANY SERVICES PROVIDED TO CUSTOMER, WILL BE LIMITED TO FIFTY PERCENT (50%) OF THE TOTAL FEES PAID (LESS ANY REFUNDS OR CREDITS) BY CUSTOMER TO CELÉRI IN THE PRECEDING SIX (6) MONTH PERIOD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT (OTHER THAN AN ACTION BY CELÉRI FOR ANY AMOUNT DUE BY CUSTOMER) MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (I) THE TERMINATION OF THIS AGREEMENT OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION. IN NO EVENT SHALL CELÉRI BE LIABLE WITH RESPECT TO ANY CLAIM OR POSSIBILITY OF INFRINGEMENT WHICH IS RELATED TO (I) CUSTOMER’S USE OF ANY SOFTWARE IN COMBINATION WITH ANY PROCESS, PRODUCT OR INFORMATION NOT DEVELOPED BY CELÉRI, OR (II) INFORMATION, DIRECTION, SPECIFICATION OR MATERIALS PROVIDED BY CUSTOMER OR ANY THIRD PARTY.
Customer will defend, indemnify and hold harmless Celéri and its employees, managers, members and other representatives from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, attorneys’ fees, or disbursements of any kind or nature whatsoever that may be imposed upon, incurred by or asserted against Celéri arising from (i) any negligence, willful misconduct, or any violation of the terms of this Agreement by Customer or its employees or other representatives, including any allegation that any third-party software or other software provided by Customer to Celéri infringes a United States patent or copyright; (ii) any activities relating to Customer’s use of such software; or (iii) any alterations or modifications to any software which are made by Celéri at Customer’s request.
8.1 All rights and interest in, and all title to, all intellectual property rights in the Products shall at all times remain with Celéri.
8.2 Customer acknowledges and agrees that all inventions, discoveries, developments, ideas, enhancements and improvements made, conceived or reduced to practice by either Party or its affiliates related to the Products (collectively, the “Inventions”) shall, whether or not such Inventions are patentable or copyrightable or made or conceived or reduced to practice or learned by such Party (or its affiliates) either alone or jointly with others, become and remain the sole and exclusive property of Celéri (whether made, conceived or reduced to practice before or after the Effective Date hereof).
8.4 Except as otherwise permitted in writing under this Agreement, Customer shall not copy, reproduce, decompile, disassemble, reverse engineer, distribute, publish, display, perform, modify, create derivative works from, transmit, or in any way exploit any part of the Products.
8.5 The terms of this Paragraph 8 shall survive termination or expiration of the Agreement.
9.1 Customer shall not, and shall ensure that its Designated Users shall not: (a) allow third parties to use or exploit the Products; (b) provide passwords or other log-in information to any of the Products to any third party; or, (c) share non-public features or content of the Products with any third party. In the event that Celéri suspects any breach of the requirements of this Section 9.1, including, without limitation, by Customer’s Designated Users, Celéri may suspend Customer’s access to the Products without advanced notice, in addition to such other remedies as Celéri may have under this Agreement and/or applicable law.
9.2 Customer will take reasonable steps to prevent unauthorized access to the Products, including, without limitation, by protecting its passwords and other log-in information. Customer agrees to notify Celéri immediately of any known or suspected unauthorized use of Products, or breach of its security and shall use best efforts to stop said breach.
9.3 In its use of the Products, Customer shall comply with all applicable laws, including without limitation HIPAA, laws governing the protection of personally identifiable information, and other laws applicable to the protection of Product Content.
9.4 Customer is solely responsible and liable for: (a) its Designated Users’ use of the Products, including, without limitation, unauthorized user conduct and any user conduct that would violate the requirements of this Agreement applicable to Customer; (b) any use of the Products through Customer’s account, whether authorized or unauthorized; and (c) maintaining the confidentiality of each username and password used with Customer’s accounts. Customer agrees to notify Celéri immediately of any unauthorized use of Customer’s accounts or any other breach of security of which it becomes aware. Celéri will not be liable for any loss that Customer may incur as a result of someone else using Customer’s passwords or accounts, either with or without Customer’s knowledge.
9.5 Customer agrees to cooperate with Celéri, including, without limitation, providing material, content, statistics or other such information related to Customer’s use of the Products during the Term of this Agreement, which may assist Celéri with marketing the Products (i.e., use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by Celéri).
ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND CELÉRI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CELÉRI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CELÉRI MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATIONS OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11.1 The Parties represent that they have the unrestricted right to enter into this Agreement and that the persons signing on their behalf are authorized to bind their respective Parties to this Agreement. The Parties are independent contractors. There is no agency, partnership, or association, or joint venture between the Parties. Neither Party shall make any commitments or take on any obligations for the other. Any attempts to do so shall be void.
11.2 Neither Party may assign its rights, obligations or interests under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld; provided that, Celéri may assign its rights, obligations or interests under this Agreement if made in connection with a merger, acquisition, divestiture or similar transaction resulting in a change of control of the ownership of Celéri.
11.3 With the exception of payment obligations, any delay in the performance of any duties or obligations of either party hereto will not be considered a breach of this Agreement if such delay is caused by a fire, earthquake, flood, other act of God, riot, embargo, accident, act of terrorism or any other event beyond such party’s reasonable control (each a “Force Majeure Event”). The party experiencing the delay resulting from the occurrence of a Force Majeure Event, and seeking relief under this Section 11.3, shall promptly notify the other party of the delay and probable duration of such delay and shall use commercially reasonable efforts to overcome such delay.
11.4 The Parties agree to make all notices under this Agreement in writing. Notices will be considered to have been given when: (i) personally delivered; (ii) delivered by e-mail or fax upon receipt of confirmation; or (iii) three (3) days after being sent by prepaid courier (i.e. UPS), certified, or registered U.S. Mail to the other Party’s address as stated in this Agreement.
11.5 The terms and conditions of this Agreement represent the entire Agreement between the Parties and supersede any other written or oral communications between the Parties. Notwithstanding any language to the contrary, any additions, changes, modifications, and waivers to this Agreement must be made in writing and signed by both Parties. The failure of each Party to enforce its rights under this Agreement will not waive such Party's right to enforce them. The terms of this Agreement are severable and to the extent any term is determined by a court of competent jurisdiction to be unenforceable it shall be severed from this Agreement and the remaining terms shall remain in full force and effect.
11.6 The Agreement shall be governed and construed according to the laws of the State of Delaware, without giving effect to conflict of law principles thereof.
11.7 The Parties agree to the provisions of the Business Associate Addendum (“BAA”).
Please contact us using the below information if there are any questions regarding the License and Services Agreement:
Celéri Health, Inc.
12 W Central Avenue