Date Last Revised: April 30, 2020
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, and intending to be legally bound, the Parties hereby agree as follows:
1. Access; Restrictions
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 2, Celéri will provide Customer and Customer’s directors, officers, representatives, agents or employees (collectively, the “Designated Users”) with access and use the Celéri software applications (“Services”). The Services are licensed, not sold. Your license confers no title or ownership in the Services and should not be construed as a sale of any rights in the Services. Upon the termination of this Agreement, any rights and licenses granted under this Agreement will automatically terminate, and neither Customer nor its Designated Users may continue to use the Services.
1.2 Customer may access and use the Services and related peripherals solely for its own internal business purposes, in compliance with applicable law, and shall not: (a) copy, reproduce, distribute, publish, display, perform, rent, sell, resell, assign, lease, sublicense or otherwise transfer the Services or use it in any manner not expressly authorized by this Agreement, (b) permit any third party to use or primarily benefit from the Services except as permitted herein, (c) create derivative works based on the Services; (d) modify, create derivative works of, reverse engineer, translate, disassemble, or decompile the Services, or cause or permit others to do so; (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services; or (f) remove any applicable title, trademark, copyright and/or restricted rights notices or labels from the Services. Customer acknowledges and agrees Celéri may revise features and functions of the Services at any time, including, without limitation, by removing such features and functions.
After any applicable free trial period, if any, Customer agrees to pay the fees set forth in the applicable order on a monthly basis in advance of the month to which the fees apply. 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: (a) a valid credit card acceptable to Celéri; a valid debit card acceptable to Celéri; or, (b) any other payment option acceptable to Celéri evidenced in writing. Customer payments will be applied first to undisputed past-due amounts. Past-due balances will be subject to a late fee in the amount of the lesser of 1.5% per month, or the maximum lawful rate permitted by law. Any taxes arising out of this Agreement other than those on Celéri’s net income shall be the responsibility of Customer. Celéri will be relieved of all obligations to provide Services during any period in which any payments are delinquent. Celéri may terminate this Agreement immediately with cause for Customer’s failure to pay any fees.
3.1 Customer and Celéri, each, acknowledge 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, whether marked with “confidential”, “proprietary” or similar marking or not so marked 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. Receiving Party acknowledges that any use or disclosure of the Disclosing Party’s Confidential Information other than as specifically provided for in this Agreement may result in irreparable injury and damage to the Disclosing Party. Accordingly, the Receiving Party hereby agrees that, in the event of use or disclosure by the Receiving Party other than as specifically provided for in this Agreement, the Disclosing Party may seek equitable relief as granted by any appropriate judicial body.
3.2 The provisions of this Section 3 shall not apply to any Confidential Information that: (a) is now or subsequently becomes generally available to the public through no action, directly or indirectly, of the Receiving Party; (b) the Receiving Party can demonstrate has been independently developed by the Receiving Party without reference to Confidential Information; (c) the Receiving Party can demonstrate was available to the Receiving Party on a non-confidential basis prior to its production by the Disclosing Party; (d) is disclosed by the Receiving Party with the prior written consent of the Disclosing Party; or (e) becomes known to the Receiving Party on a non-confidential basis from a third party source with no confidentiality obligations to the Disclosing Party.
3.3 The Receiving Party may disclose Confidential Information of the Disclosing Party In the event that the Receiving Party is required by judicial process or other legal order to disclose any of the Disclosing Party’s Confidential Information; provided, that the Receiving Party must provide the Disclosing Party with prompt written notice of such request and reasonably cooperate with the Disclosing Party in any effort to obtain an appropriate protective order or other relief. 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.
4. Terms & Termination
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: (a) in the event the other Party materially breaches this Agreement; and (b) any time 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. Celéri may delete all Customer Content (as defined below) within [_] days of the effective date of any termination or expiration of this Agreement, after which such Customer Content may not be recoverable. Celéri shall have no liability for such deletion of Customer Content.
5. Limitation of Liability
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, THE SERVICES, OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF CELÉRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM (INCLUDING, WITHOUT LIMITATION, FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, BREACH OF SECURITY, OR LOST OR DAMAGED DATA). 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 THE 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 (a) THE TERMINATION OF THIS AGREEMENT OR (b) 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 (a) 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; (b) any activities relating to Customer’s use of such software; or (c) any alterations or modifications to any software which are made by Celéri at Customer’s request.
7. Intellectual Property Rights
7.1 All rights and interest in, and all title to, all intellectual property rights in the Services shall at all times remain with Celéri.
7.2 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 Services (collectively, the “Inventions”) shall, whether or not such Inventions are patentable, copyrightable, 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. Customer Responsibilities
8.1 Customer shall not, and shall ensure that its Designated Users shall not: (a) allow third parties to use or exploit the Services; (b) provide passwords or other log-in information to any of the Services to any third party; or, (c) share non-public features or content of the Services with any third party. In the event that Celéri suspects any breach of the requirements of this Section 8.1, including, without limitation, by Customer’s Designated Users, Celéri may suspend Customer’s access to the Services without advanced notice, in addition to such other remedies as Celéri may have under this Agreement and/or applicable law.
8.2 Customer will take reasonable steps to prevent unauthorized access to the Services, 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 Services, or breach of its security and shall use best efforts to stop said breach.
8.3 In its use of the Services, Customer shall comply with all applicable laws, including without limitation the Health Insurance Portability and Accountability Act of 1996 (as amended), laws governing the protection of personally identifiable information, and other laws applicable to the protection of Customer Content.
8.4 Customer is solely responsible and liable for: (a) its Designated Users’ use of the Services, 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 Services 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.
8.5 Customer agrees to cooperate with Celéri, including, without limitation, providing material, content, statistics or other such information related to Customer’s use of the Services during the Term of this Agreement, which may assist Celéri with marketing the Services (i.e., use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by Celéri).
9. Disclaimer of Warranties
ALL 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. CUSTOMER ACKNOWLEDGES AND AGREES IT IS SOLELY RESPONSIBLE FOR THE SECURITY AND CONFIDENTIALITY OF ALL DATA, INCLUDING PROTECTED HEALTH INFORMATION AND OTHER PERSONALLY IDENTIFIABLE INFORMATION, THAT MAY BE PROCESSED BY THE PRODUCTS, WHILE IN THE POSSESSION, CUSTODY OR CONTROL OF CUSTOMER AND CUSTOMER’S DESIGNATED USERS. 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.
10.1 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.
10.2 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.
10.3 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, pandemic, act of any governmental authority 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.
10.4 The Parties agree to make all notices under this Agreement in writing. Notices will be considered to have been given when: (a) personally delivered; (b) delivered by e-mail or fax upon receipt of confirmation; or (c) 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.
10.5 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.
10.6 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.
10.7 The Parties agree to the provisions of the BAA, which is incorporated into this Agreement by this reference.
10.8 This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute the same Agreement.
10.9 The sections of this Agreement which by their essential purpose shall survive any expiration or termination of this Agreement, including, but not limited to: 1.2, 2, 3, 4, 5, 6, 7, 9 and 10.
Please contact us using the below information if there are any questions regarding the License and Services Agreement:
Celéri Health, Inc.
1815 W. 13th Street, Suite 5
Wilmington, DE 19806