1. LICENSE TERMS
a. Grant of License. Licensor hereby grants to Licensee, pursuant to the terms and conditions of this Agreement, a nonexclusive, nontransferable limited license (hereinafter "License") to use the Software. Licensor reserves any and all rights not expressly and explicitly granted in this Agreement, including, but not limited to, Licensor's right to license the Software to third parties. b. Restrictions on Use.
(i) Licensee agrees to use the Software only for Licensee's own internal business purposes. Licensee understands and agrees that the Software may not be shared with third party business entities/owners, unless in a legal business relationship that includes scheduling and provision of services together outside of the use of the Software. Any business that provides services that is the recipient of the appointments scheduled through the Software is required to obtain separate license to the Software.
(ii) Licensee shall not engage in any behavior that excessively taxes the ability of the Software to function normally. Licensee shall not scan attempt to scan, penetrate or test the security capability of the Software, either actively or passively without the express written consent Licensor, or copy, disassemble, decompile or reverse engineer the Software or attempt to do the same except to the extent permitted by applicable law. Licensee shall not use the Software to engage in any illegal, abusive, offensive, or irresponsible behavior, or engage in any activity that promotes or fosters such behavior. Licensee shall not use the Software to post or display any offensive or illegal content, including, but not limited to, any images, graphics, logos or text that Licensor deems potentially offensive to others. Additionally, Licensee shall not use the Software to publish any form of copyrighted material without the express written consent of the authorized owner of that material and Licensor. Licensee understands and agrees that its use of the Software in violation of this Section 1(b) may result in suspension of Licensee's access to the Software and/or cancellation of the License.
c. Access to Software Services. Licensee understands and agrees that Licensee is solely and exclusively responsible
for obtaining and maintaining appropriate internet access and hardware necessary to use the Software. Licensee understands and agrees that Licensor does not guarantee any specific amount of access to the Software, or promise of a limit of "downtime," and that Licensor may periodically limit access to the Software during times of system maintenance.d. No Maintenance, Support and Updates. The Software is made available as an Internet-based service, and modifications or updates to it are made on servers maintained by Licensor or third parties. Updates and modifications may be made at any time, without notice; provided, however, that Licensor has no obligation under this Agreement to maintain or provide support for, or to provide any updates or modifications to, the Software to Licensee.
2. PAYMENT TERMS
a. Fees and Payments. Licensee agrees to pay the applicable fees presented to Licensee during the registration process for the use of the Software ("Fees"). Such Fees shall be due and owing on the first of each month, unless this Agreement is cancelled by the Licensee as provided herein. Licensee understands and agrees that Licensor is not required to provide a monthly invoice, and such fees shall be automatically billed to the credit card provided by Licensee during the registration process. Licensee shall be responsible for the full amount of Fees owed for the month which this Agreement is terminated, and such Fees shall not be prorated for the month if the effective date of termination is prior to the last day of the month. Failure to provide payment or inability of Licensor to collect payment through the means provided may result in suspension of Licensee's access to the Software and/or termination of this Agreement by Licensor. Notwithstanding anything herein, Licensor reserves the right to pursue any legal means available to collect amounts due hereunder and Licensee agrees to be responsible for the reasonable costs of any such collection efforts, including attorneys' fees.
b. Fee Increases and Changes. Licensees utilizing a free trial account, or complimentary account, shall be changed to a paid account without notice at the end of the designated trial period or complimentary period. Fees for monthly subscriptions are subject to changes upon thirty (30) days' notice by regular or electronic mail at the address provided by Licensee during the registration process. Licensee agrees that the continued use of the Software after changes to the Fees as provided herein constitutes its continued agreement to be bound by the terms of this agreement and responsible for applicable payments.
c. Taxes. Licensee shall pay any applicable sales, use, personal property, ad valorem, stamp or other taxes, levies, or other similar fees, together with all penalties, fines or interest thereon, based on the License granted under this Agreement or Licensee's use of the Software.
3. DATA
a. Use and Retention of Data. Licensor does not disclose any data provided by Licensee during the registration process ("Registration Data"), except as required to collect delinquent Fees and to host the Software on a secure server. Licensor may retain Registration Data as long as necessary to resolve any outstanding Fees following cancellation of Licensees use of the Software, or for such period as required by law. Licensee will not have access to Registration Data following the suspension or termination of this Agreement. Information entered into the Software by Licensee ("Service Data") shall be stored by Licensor and its third parties only for active accounts. Licensor may delete or destroy Service Data that Licensee has marked for deletion or removed from the Software. Service Data may be deleted or may not be stored according to Software feature parameters, as indicated to Licensee within the specific Software feature. Licensee understands and agrees that Service Data may be deleted without recoverability for accounts that are inactive or delinquent for over ninety (90) days or for accounts that have been terminated by either Licensee or Licensor.
b. Privacy and Intake Data. Licensee understands and agrees that Licensor cannot and does not guarantee the Software shall be free of breaches or unauthorized access. Licensee accepts responsibility for informing its intakes, employees and authorized users regarding the risks of providing personal information using the Software and over the internet, and shall be responsible and liable for obtaining all necessary and legally required consents prior to providing, or allowing such information to be provided. Licensee is responsible for using and disclosing information in a manner appropriate for Licensee's profession and in accordance with all applicable laws and regulations.
4. INTELLECTUAL PROPERTY RIGHTS
Licensee agrees that Licensor and its licensors own all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software, whether made by Licensor or any third party. No title to the Software is transferred hereby and Licensee's rights hereunder are strictly limited as set forth herein. Licensee agrees to protect the Software from unauthorized use, access or disclosure in the same manner that it protects its own confidential or proprietary information, but in no event with less care than a reasonably prudent business would exercise, and to promptly notify the Licensor of any actual or potential unauthorized access to or use of Software.
5. REPRESENTATION AND WARRANTY; WARRANTY DISCLAIMER
a. Representations by Licensee. By accepting this Agreement and/or by using the Software, Licensee hereby represents and warrants that all information provided by Licensee to Licensor during the registration process for the Software is true and accurate in all material respects. Licensee represents and warrants that Licensee has been duly authorized to enter into this Agreement for and on behalf of any person, company, or other entity specified during the initial registration process for the Software. Licensee further represents and warrants that it (including its employees, agents and intakes) shall only use the Software for online appointment scheduling with referral management for the facilitation of collaborative healthcare. Should any of these representations prove false at any time, Licensor may, in Licensor's sole discretion, immediately discontinue Licensee's access to and disable Licensee's use of the Software without notice and without recourse by Licensee.
b. WARRANTY DISCLAIMER. THE SOFTWARE AND ANY OTHER PRODUCTS OR INFORMATION PROVIDED TO LICENSEE UNDER THIS AGREEMENT ARE BEING PROVIDED ON AN "AS IS" BASIS. LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S OR ITS CUSTOMERS' REQUIREMENTS OR EXPECTATIONS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. FURTHER, LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING USE, OR THE RESULTS OF USE OF THE SOFTWARE IN TERMS OF ACCURACY, RELIABILITY OR OTHERWISE, OR REGARDING THE CUSTOMER'S OR END USER'S SATISFACTION. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE.
6. LIMITATION OF LIABILITY
a. IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS AND/OR LOST DATA, ARISING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR FROM ANY BREACH OF THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. THE AGGREGATE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE FEES RECEIVED BY LICENSOR FROM LICENSEE FOR THE LICENSE DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM RESULTING IN LIABILITY FIRST AROSE.
c. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS INCLUDING NEGLIGENCE. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS BETWEEN THE PARTIES AS AUTHORIZED BY APPLICABLE LAWS.
7. LICENSEE INDEMNITY.
Licensee shall indemnify, defend, and hold Licensor and its members, managers, officers, directors, employees and agents harmless from and against all claims and causes of action arising from Licensee's use of the Software (including, without limitation, any materials or information transmitted via the Software), or breach of this Agreement, and any losses, liabilities, damages and expenses (including reasonable attorneys' fees) that are incurred by Licensor as a result thereof. Licensee shall not enter into any compromise or settlement of any action that imposes any liability or obligation on Licensor without Licensor's written consent.
9. GENERAL PROVISIONS
a. Governing Law/Venue/Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Illinois, without regard to choice of law provisions. Venue for disputes and actions to enforce this Agreement shall lie exclusively in the state and federal courts of DuPage County, Illinois.
b. Term and Termination. Unless earlier terminated earlier as set forth herein, the term of the License granted hereunder shall be perpetual. Licensor may terminate this License and the Licensee's use of the Software at any time by providing thirty (30) days' notice to Licensee of such termination. Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee breaches or fails to comply with any of the terms and conditions of this Agreement, and fails to cure such default within ten (10) days after notice from Licensor. In such event, Licensor shall deny Licensee access to the Software and Licensee must discontinue use of the Software.
c. Notice. Any notices, complaints, or requests (including notifications of cancellation of service, or notification of unauthorized access to Licensee's account by a third party) from Licensee to Licensor, must be sent to the following email address: info@referralgps.com
d. Severability. Except as otherwise set forth in this Agreement, the provisions of this Agreement are severable, and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby and shall nevertheless be binding between the parties hereto. Any such invalid, illegal or unenforceable provision or portion thereof shall be changed and interpreted so as to best accomplish the objectives of such provision or portion thereof within the limits of applicable law.
e. Complete Agreement and Modifications. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to the subject matter. Licensee understands and agrees that Licensor retains the right to modify the terms and conditions of this Agreement without approval by Licensee. Licensee agrees that the continued use of the Software after any applicable changes to this Agreement constitutes its continued agreement to be bound by the terms and conditions of this Agreement and any modifications made thereto.
f. Waiver. Any waiver, either expressed or implied, by either party of any default by the other in the observance and performance of any of the conditions and/or covenants of duties set forth herein shall not constitute or be construed as a waiver of any subsequent or other default.
g. Force Majeure. Neither Licensor nor any of its third party providers shall be liability for delays, damages or failures in performance due to causes beyond its or their control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, or an inability to obtain necessary equipment or services.
h. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations under this Agreement, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other arty (if a public company, as listed in the other party's then-most recent 10-K filing). Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section will be void and of no effect.
i. Read and Understood. Licensee hereby acknowledges that it has read and understands this Agreement and agrees to be bound by its terms.