Program Enrollment / Product License
GRANT OF LICENSE. Licensee is granted a limited license to use the Product, which includes certain Software and Hardware, as defined below, solely in connection with the Program as long as Licensee remains a participant in the Program. Proximedics reserves all rights not expressly granted to Licensee.
Software - Subject to the foregoing, Proximedics grants Licensee a non - exclusive, non - assignable, and non-transferable license to use Proximedics' software program(s) as provided through the Product and its accompanying documentation (all hereinafter termed the "Software") subject to the terms herein.
Hardware - Subject to the foregoing, Proximedics grants Licensee a non - assignable and non-transferable license to use any Proximedics provided scanners(RFID, barcode or otherwise)(the "Hardware") for use with the Software during Licensee's participation in the Program.
Proximedics may create, from time to time, updated versions of the Software.Proximedics reserves the right to make changes to or improvements in any aspect of the Software at any time without prior notice to Licensee and without an obligation to supply such changed and / or improved Software to Licensee.
OWNERSHIP OF PRODUCT; DATA. The Product, including the Software accessible through the Product, and all intellectual property rights included in or associated with the Product, including but not limited to patents, copyrights, trademarks and service marks, are owned or licensed by Proximedics, and all right, title and interest in and to the Product remains with Proximedics or its licensors. Except as ordinarily occurs when a content is downloaded to your computer in the normal course of operations, material from the Product may not be copied, distributed, re-published, uploaded, posted, modified, reverse engineered, or transmitted in any manner without our prior written consent.Certain content may be licensed from third parties and all such third-party content and intellectual property rights related to such content belong to the respective third parties.In any event, you may not remove any copyright, trademark or other intellectual property or proprietary notice or legend contained on the Product or in the content. As between Proximedics and Licensee, ownership of Licensee’s customer and clinical data is with Licensee as set forth in that certain Business Associate Agreement (“BAA”) between Proximedics and Licensee; provided that Proximedics shall have the right(a) to use sanitized(i.e.containing no "personally identifiable health information" as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA")) data sets(the "Sanitized Data Sets") collected by means of the Proximedics Products or collaborations with Licensee to develop and further advance the Products, related services, software, technology and/or refine and/or create Proximedics technology; (b) to develop, publish or present reports, technical summaries, or product specifications based on, or including Sanitized Data Sets collected by means of the Proximedics Products, services, software, technology or collaborations with Licensee("Summary Reports"); and(c) to use Licensee’s data generally as necessary in accordance with Proximedics technical support(if any) provided to Licensee hereunder.
USE RESTRICTIONS. Licensee may not distribute copies of the Software to others. Licensee may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works of the Product without the prior written consent of Proximedics. Licensee is only permitted to use the Product as specified herein.
ASSIGNMENT AND TRANSFER RESTRICTIONS. The Product is licensed only to the Licensee and may not be transferred or assigned to anyone without the prior written agreement of Proximedics.Any authorized transferee or assignee of the Product shall be bound by the terms and conditions of this Agreement.In no event may Licensee transfer, assign, rent, lease, sell, or otherwise dispose of Product, in part or in whole, on a temporary or permanent basis except as expressly provided herein.
Proximedics shall have the right to terminate in its sole discretion this Agreement at any time upon fifteen calendar days advance written notice to Licensee.
SUPPORT Proximedics will use commercially reasonable efforts to provide set-up, troubleshooting, and maintenance service associated with the Product.Upon contact of Proximedics by the Licensee regarding a service issue via the provided contact information, Proximedics will use commercially reasonable efforts to respond to Licensee's inquiry to develop an action plan for addressing the service issue within three business days.
NOTICE AND CONSENT TO RECORDING. If and to the extent the Product includes benefit investigation services provided by Proximedics, then Licensee acknowledges and agrees that in connection with such benefit investigation services, it will be necessary for Proximedics to monitor business-related telephone calls and retrieve recorded business-related conversations as necessary.The Proximedics monitored lines will be used as a training vehicle and to ensure accuracy, quality control and consistency as a normal and regular business practice. The recordings will be used to clarify any discrepancies, resolve any disputes pertaining to a particular business-related telephone conversation and to address benefit investigation issues.
EXPORT LAW. Licensee may not export all or any portion of the Product in violation of applicable export laws and regulations.
CONFIDENTIALITY. Licensee understands and acknowledges that the Product comprises valuable assets and trade secrets of Proximedics in which Proximedics claims exclusive proprietary rights and interest. Without prior written consent from Proximedics, Licensee agrees not to, and will not permit its employees or agents or independent contractors to use, disclose, provide, or otherwise make available any non-public or confidential materials, documents, specifications, computer screens, computer screen layout, computer screen fields, computer screen input and output fields, database schema, computer code or the like(no matter in what media or form it is embodied) that is received from Proximedics or Proximedics' agent or independent contractors to any person, other than Licensee's employees or agents or its contractor(s) having a bona fide need for access.Licensee shall have no obligation of confidentiality with regard to information which is:
already known to Licensee; or
received by Licensee without confidentiality obligations or restrictions on use; or
independently developed by Licensee without access to such information; or
required to be disclosed pursuant to any statutory or regulatory provision or court order; or
publicly available information.The phrase "publicly available" shall mean readily accessible to the public in a written publication, and shall not include information which is only available by a substantial searching of the published literature, and information the substance of which must be pieced together from a plurality of different publications and sources.
U.S.GOVERNMENT RESTRICTED RIGHTS. The Software and Product are provided with RESTRICTED RIGHTS.Use, duplication, or disclosure by the Government is subject to restrictions set forth in FAR Sections 52-227-14 and 52-227-19 or DFARS Section 52.227-7013(C) (1)(ii), as applicable.Contractor/manufacturer is: Proximedics, LP, 603 Beaver Street, Sewickley, PA 15143.
DISCLAIMERS OF WARRANTY AND LIABILITY.
Licensee expressly acknowledges and agrees that use of the Product is at Licensee's sole risk. The PRODUCT IS provided "AS IS" and without warranty of any kind and PROXIMEDICS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. PROXIMEDICS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE OPERATION AND RESULTS OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCT WILL BE CORRECTED.NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROXIMEDICS OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
Moreover, PROXIMEDICS DOES NOT WARRANT AND EXPRESSLY DISCLAIMS ANY WARRANTIES THAT THE EXERCISE OF LICENSE RIGHTS PURSUANT TO THIS AGREEMENT WILL NOT INFRINGE ANY CURRENT OR FUTURE INTELLECTUAL PROPERTY RIGHTS OWNED BY PERSONS OTHER THAN PROXIMEDICS. Proximedics makes no representation regarding the possibility of any such infringement by use of the Product, either alone or when combined with products other than the Product.The parties hereby agree that Proximedics has no duty to investigate or to warn Licensee of any such possibility of infringement by use of the Product when used alone or when combined with entities other than the Product.
PROXIMEDICS AND UCB AND THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, WILL NOT BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE THE PRODUCT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LICENSEE UNDERSTANDS THAT ANY SERVICES(INCLUDING SUPPORT) AND OTHER MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND.LICENSEE WILL REVIEW, MODIFY AND VALIDATE ALL INFORMATION FOR CLINICAL AND OTHER CORRECTNESS AND APPROPRIATENESS IN YOUR ENVIRONMENT BEFORE ANY USE. PROXIMEDICS AND UCB, INC. AND ALL OTHERS ASSOCIATED IN ANY WAY WITH THE PRODUCTS HAVE NO RESPONSIBILITY FOR MEDICAL CARE PROVIDED (OR ANY FAILURE OR OMISSION TO PROVIDE CARE) TO ANY PATIENT IN YOUR SYSTEM EVEN IF SUCH PRODUCT IS USED IN CONNECTION WITH SUCH CARE, AND INSTEAD LICENSEE WILL BE SOLELY RESPONSIBLE FOR SUCH CARE.LICENSEE HEREBY AGREES TO WAIVE ANY CLAIMS YOU MAY HAVE AGAINST PROXIMEDICS AND UCB, INC. AND ALL OTHERS ASSOCIATED WITH THE PRODUCTS WITH RESPECT THERETO. PROXIMEDICS MAY REQUIRE LICENSEE TO AGREE TO ADDITIONAL TERMS IN ORDER TO ACCESS ADDITIONAL FUNCTIONALITY IN THE PRODUCTS.
Licensee may not use any device, software or routine, including but not limited to any viruses, trojan horses, worms, time bombs or other malicious code, intended to damage or interfere with the proper working of the Products or to surreptitiously intercept or expropriate any system, data or information from the Products. Licensee may not take any action which imposes an unreasonable or disproportionately large load on our infrastructure, including but not limited to denial of service attacks, "spam" or any other such unsolicited overload technique.
GOVERNING LAW, ARBITRATION AND JURISDICTION.
CONTACT.Should Licensee have any questions concerning this Agreement, or if Licensee desires to contact Proximedics for any reason, please contact us in writing:
603 Beaver Street
Sewickley, PA 15143.
July 14, 2015
BENEFIT INVESTIGATION. If and to the extent the Product includes benefit investigation services provided by Proximedics, the Licensee and the [clinic] entity employing/engaging Licensee hereby authorize Proximedics to act as an agent of Licensee and entity in conducting such benefit investigation services, including but not limited to contacting provider offices on behalf of Licensee and entity to confirm applicable patient eligibility.
ELECTRONIC SIGNATURES. To the extent applicable, you will comply with, U.S. 21 C.F.R.Part 11, and the Health Insurance Portability and Accountability Act (the “HIPAA”), including without limitation, preventing unauthorized access to the data as well as the accounts containing eSignature capabilities by maintaining physical security of the computers and ensuring that you and your personnel maintain the confidentiality of their passwords, and to allow only those individuals authorized and qualified to sign prescriptions to have access to accounts with eSignature capabilities and to have procedures and safeguards in place to prevent unauthorized access to an eSignature enabled account.You will also develop and implement policies and procedures to initially at the time of employment or at the time such person is granted access to accounts with eSignature capabilities, and periodically thereafter, to verify such person’s identity, to determine that such persons have the appropriate training and education to complete the tasks related to such accounts, to review password assignments and usage, and to conduct authority checks to verify that only authorized persons can use, access, sign, or alter a record within accounts with eSignature capabilities, and will also enforce any violation of policies regarding access to accounts with eSignature capabilities as well as the use of eSignatures. You shall also comply with our instructions for data entry into the system, as provided by us from time to time through the Product (including any third party electronic signature functionality we utilize, such as DocuSign). You will also certify to the Federal Food and Drug Administration(“FDA”) that the electronic signatures of your personnel using the Product are the legally binding equivalent of handwritten signatures, and that such personnel attest to the accuracy and completeness of the data entered.You also agree to ensure access to your source records and documentation supporting 21 CFR Part 11 compliance, during and after the term of this Agreement, by Proximedics representatives and/or FDA or other government entities for auditing purposes.