BY CLICKING TO ACCEPT THIS AGREEMENT OR USING OR ACCESSING ANY ELEMENT OF THE APPLICATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE APPLICATION.
This Application License Agreement ("Agreement") between Nordic Consulting Partners, Inc. ("Company") and the company or individual accessing or using the Application (“Licensee”). Licensee and Company may be referred to throughout this Agreement in the singular as a “party” and collectively as “parties.” The “Effective Date” of this Agreement is the earliest date on which Licensee clicks to accept this Agreement or accesses or uses the Application.
This Agreement governs Licensee’s use of the Application that transforms clinical data into an acceptable format for registry upload and transfers and uploads the data into the American Heart Association or its subcontractors and agents (collectively, the “AHA”). The “Application” shall mean the application outlined in a previous sentence and all related documentation.
- Parties to the Agreement. Company and Licensee acknowledge that this Agreement is between Company and Licensee only, and is not an agreement with Epic. “Epic” means Epic Systems Corporation, a Wisconsin corporation with its principal place of business at 1979 Milky Way, Verona, WI 53593. Epic is not responsible for the Application and the content contained therein.
- No Breach. Licensee acknowledges that the execution of this Agreement does not and will not constitute or result in a breach or violation of, or conflict with any of the terms or provisions of any agreements that Licensee has in place with any other parties.
- License Grant. Subject to the terms of this Agreement, Company grants Licensee a limited, non-exclusive, non-sublicensable, nontransferable, and revocable license during the Term of this Agreement to use the Application solely for Licensee’s internal business operations and strictly in accordance with the Application's documentation. Apart from the limited licenses set forth in this Section 3, Licensee is not being granted any right, title, or interest in or to the Application. Certain components of the Application may have incorporated open source licenses further outlined in Appendix A.
- License Restrictions. Except as expressly permitted by this Agreement, Licensee shall not, nor permit or authorize anyone to:
- copy the Application;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or
- use the Application in, or in association with, the design, maintenance, or operation of any safety-critical applications or environments.
- Reservation of Rights. Licensee acknowledges and agrees that the Application is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to Licensee in this Agreement. As between Company and Licensee, Licensee owns all right, title and interest to Licensee’s Data (as defined below).
- Invoices and Payment. Licensee shall pay Company fees and expenses in accordance with an associated statement of work/order form. Licensee will pay the undisputed portion of an invoice within thirty (30) calendar days of receipt of Company’s invoice, or by the due date of the invoice, whichever is earlier.
- Taxes. Fees and expenses invoiced pursuant to this Agreement do not include, and may not be reduced to account for, any taxes, which may include local, state, federal, withholding, or other taxes, levies, duties or similar government assessments of any nature (collectively, “Taxes”). Licensee is responsible for paying all Taxes.
- Licensee’s Data. Licensee acknowledges that, during the Term of this Agreement, Licensee will submit electronic data or information (“Data”) to Company. Company’s use of the Data will be in accordance with any Business Associate Agreement between Licensee and Company, the terms of which are incorporated herein by reference.
Licensee shall: (a) have sole responsibility for the accuracy, quality, and legality of all Licensee’s Data submitted to Company; (b) have sole responsibility for ensuring the confidentiality, privacy, and security of all Licensee’s Data submitted to Company, including but not limited to using best practices to encrypt all such Data in transit and at rest; and (c) take commercially reasonable efforts to prevent unauthorized access to, or use of the Application and Data, and immediately notify Company of any unauthorized access or use. Company shall not be responsible for verifying the accuracy, quality, and legality of Licensee’s Data whether such Data is in its initially submitted state nor transformed state.
Licensee grants Company a worldwide, perpetual, nonexclusive, and royalty-free license, with the right to sublicense, to use, copy, distribute, perform, modify, make derivative works of and otherwise use Licensee’s Data for the purposes of enabling functionality of the Application and for transferring and uploading Licensee’s Data to the AHA.
Licensee warrants and represents that (i) it has obtained all necessary approvals, consents or waivers for the Licensee’s Data to be transferred, stored, uploaded, or otherwise used by the Application and Company, and (ii) anything Licensee submits to Company, including Licensee’s Data, shall not contain any lock, clock, timer, Trojan horse, Easter egg, time bomb, counter, copy protection feature, replication devices, or defect (“virus” or “worm” as such terms are commonly used in the computer industry) or other device which (y) might lock, disable, or erase the Application, Company’s systems, or anything related thereto, or (z) require action or intervention by Company or other persons or entities to allow Company or others to utilize the Application, Company’s systems, or anything related thereto.
- Company Data. Company collects data and information regarding the use and operation of the Application (“Company Data”). The Company Data is aggregate in form and does not capture personally identifiable information. Licensee acknowledges and agrees that the Company Data is the sole and exclusive property of Company and Company shall be allowed to use, reproduce, adapt, combine with other data, edit, re-format, generate, store, and disclose any and all Company Data for any lawful purpose.
- Geographic Restrictions. The Application is provided for access and use only by persons located in the United States of America. Licensee acknowledges that Licensee will not be able to use the Application outside of the United States of America. Company may impose additional restrictions related to the access and use of the Application.
- Maintenance and Support. Licensee and Company acknowledge that Epic will not be responsible for providing any maintenance or support services related to the Application. Licensee acknowledges that if Epic chooses to provide any maintenance or support services related to the Application, Epic may charge its then current fees for such maintenance and support to Licensee.
Company’s Support Information: firstname.lastname@example.org
- Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. Licensee agrees that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Licensee shall promptly configure its Epic system or complete any other steps requested by Company to utilize Updates, and Licensee agrees that the Application or portions thereof may not properly operate should Licensee fail to do so. Licensee further agrees that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- Third-Party Materials. The Application may now or in the future display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services ("Third-Party Materials"). Licensee acknowledges and agrees that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to Licensee or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to Licensee, and Licensee’s access and use them entirely at Licensee’s own risk and subject to such third parties' terms and conditions.
- Claims Related to the Application.
a. Licensee acknowledges that Company shall not be responsible for any claims, demands, and actions, and all liabilities, damages, and expenses arising out of or relating thereto, including without limitation settlement costs and attorney’s fees, arising out of or relating to the Application, including but not limited to claims alleging product liability, errors in the Application (including but not limited to corruption of data), breach of personally identifiable information (“PII”), protected health information (“PHI”), or any other sensitive information, hacking or cyberattack which used or involved the Application in any way, claims that the Application failed to conform to any applicable legal or regulatory requirements, claims involving any violation of consumer protection laws, claims that the Application endangered patient safety or security, claims that the Application provided any misleading or inaccurate information to a user, claims that the Application caused performance degradation, claims that the Application was used as a vector for the introduction of viruses or malware into any system, software, user device, or otherwise, claims that the Application introduced or otherwise caused a security vulnerability in Licensee’s network or any system, software, user device, or otherwise.
b. Licensee and Company acknowledge that Epic shall not be responsible for any claims, demands, and actions, and all liabilities, damages, and expenses arising out of or relating thereto, including without limitation settlement costs and attorney’s fees, arising out of or relating to the Application, including but not limited to claims alleging product liability, errors in the Application (including but not limited to corruption of data), breach of PHI, hacking or cyberattack which used or involved the Application in any way, claims that the Application failed to conform to any applicable legal or regulatory requirements, claims involving any violation of consumer protection laws, claims that the Application interfered with or could interfere with the safety or security of the Epic Software (defined below) or the Application otherwise endangered patient safety or security, claims that the Application provided any misleading or inaccurate information to a user, claims that the Application caused performance degradation, claims that the Application was used as a vector for the introduction of viruses or malware into the Epic Software, a user device, or otherwise, claims that the Application introduced or otherwise caused a security vulnerability in the Epic Software or Licensee’s network. “Epic Software” means any software licensed or otherwise provided by Epic to any member of the Epic Community.
- Confidentiality. Each party (a “Recipient”) shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) to not disclose or use any Confidential Information (defined below) of the other party (a “Discloser”) except as reasonably necessary to perform Recipient’s obligations or exercise Recipient’s rights pursuant to this Agreement or with the Discloser’s prior written permission. To the extent required by law, Recipient’s disclosure of Discloser’s Confidential Information shall not be considered a breach of this Agreement provided that Recipient promptly provides Discloser with prior written notice of such disclosure (to the extent legally permitted). “Confidential Information” means (a) any software utilized by Company in the provision of the service and its respective source code; (b) Licensee’s Data; (c) each party’s business or technical information, including but not limited to any related documentation, training materials, any information relating to the Application, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the Discloser as “confidential” or “proprietary” or the Recipient knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties). Confidential Information does not include any information that, without Recipient’s breach of an obligation owed to Discloser: (i) is or becomes generally known to the public; (ii) was known to Recipient prior to disclosure by Discloser; (iii) was independently developed by Recipient; or (iv) is received by Recipient from a third party.
- Term and Termination.
- The term of Agreement commences on the Effective Date and will continue in effect, unless terminated by either party pursuant to this section, for a period of one (1) year (the “Initial Term”). Upon the expiration of the Initial Term and any Renewal Term (defined below), the Agreement shall automatically renew for an additional one (1) year period (each, a “Renewal Term” and together with the Initial Term the “Term”), unless either party provides the other party with at least thirty (30) days’ prior written notice before the end of the Initial Term or the then-current Renewal Term of its intent to not renew the Agreement.
- Either party may terminate this Agreement for convenience, for any reason or no reason, upon a thirty (30) days’ prior written notice.
- Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion.
- This Agreement will terminate immediately and automatically without any notice if Licensee violates any of the terms and conditions of this Agreement.
- Upon termination:
- All rights granted to Licensee under this Agreement will also terminate; and
- Licensee must cease all use of the Application.
- Termination will not limit any of Company's rights or remedies at law or in equity.
- Retrieval of Licensee’s Data. Upon Licensee’s written request made on or prior to expiration or termination of the Agreement, Company will give Licensee limited access to the Application for a period of up to thirty (30) days, at no additional cost, solely for purposes of requesting a retrieval of Licensee’s Data. Subject to such thirty-day period and Company’s legal obligations, Company has no obligation to maintain or provide any Licensee’s Data and shall, unless legally prohibited, delete Licensee’s Data following expiration or termination of the Agreement.
- Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY, EXPRESSED OR IMPLIED, OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. In addition, company does not warrant that the Application or associated services provided under this agreement will be error free, uninterrupted, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT ANY FUNCTIONS, INACCURACIES OR TYPOGRAPHICAL ERRORS IN THE APPLICATION WILL BE REPAIRED OR CORRECTED, or that the application code will be FREE FROM ERRORS OR SAFE FROM INTRUSIONS OR ANY OTHER SECURITY EXPOSURES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO LICENSEE.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO LICENSEE’S USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, SECURITY INCIDENTS AND BREACHES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR/AND (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE APPLICATION IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO LICENSEE.
- By Company. Subject to the limitation of liability outlined above, Company shall defend Licensee from, and shall indemnify and hold Licensee harmless against any loss, damage, or costs finally awarded or entered into in settlement (collectively, “Losses”) resulting from, claims, demands, suits, or proceedings made or brought against Licensee by a third party (“Claims”) alleging that (i) the use of the Application as contemplated hereunder infringes such third party’s intellectual property rights or the rights of any owner of any clinical code set, content, image, patient instruction, video, or any other third party information, and (ii) Company has breached its obligations to Licensee under Section 15 (Confidentiality) only with respect to the disclosure of any such Confidential Information and to the extent such disclosure is the direct result of actions predominantly attributable to Company; provided Licensee: (1) promptly gives written notice of the Claim to Company; and (2) provides to Company all reasonable assistance. Company shall have no liability for Claims or Losses to the extent arising from (x) modification of the Application by anyone other than Company; (y) use of the Application in a manner inconsistent with the Agreement; or (z) use of the Application in combination with any other services not provided by Company.
- By Licensee. Licensee agrees to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to (i) Licensee’s use or misuse of the Application, (ii) Licensee’s breach of this Agreement, including but not limited to the content Licensee submits or makes available through this Application, (iii) any breach of the confidentiality, privacy, and security of any of Licensee’s Data, including any security incidents or data breaches related thereto, and (iv) Licensee’s breach of its obligations to Company under Section 15 (Confidentiality), including any security incidents or data breaches related thereto.
- Relationship of the Parties. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency, or joint venture between the parties.
- Notices. Any notice, demand, claim, or other communication required or permitted under this Agreement shall be in writing and shall be effectively given if sent by email with the “Return Receipt” received; or if mailed by United States certified or registered mail, postage prepaid, return receipt requested, or sent by a national commercial courier service, return receipt requested for next day delivery, to be confirmed in writing by such courier, or by hand delivery, or confirmed by signed receipt, and shall be deemed to have been given, delivered and received three (3) business days after the same is deposited at a regularly maintained post office of the United States Postal Service, twenty-four (24) hours after the same is deposited with such a courier service, or upon hand delivery of the same, as applicable; provided that it is delivered to the address and individual set forth below. The address and individual to whom such notice shall be sent may be changed from time to time upon written notice to the other party in the manner set forth in this Agreement.
Company’s Contact Information:
Nordic Consulting Partners, Inc.
2601 W. Beltline Hwy., Suite 600
Madison, WI 53713
Licensee’s Contact Information:
Contact information provided by Licensee.
- Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence. Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay so caused.
- Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the United States of America.
- Third Party Beneficiary. Epic and Epic’s Owned Entities are third party beneficiaries of this Agreement. Upon Licensee’s execution of the Agreement, Epic and any of Epic’s Owned Entity will have the right to enforce this Agreement against Company or Licensee and request a copy of this Agreement. “Epic’s Owned Entity” means an entity that (a) directly or indirectly owns or controls more than fifty percent of Epic, or (b) is more than fifty percent owned or controlled, directly or indirectly, by Epic.
- Audit. Company shall allow Licensee to audit materials directly related to this Agreement to verify Company’s compliance with the Agreement during Company’s standard business hours, provided Licensee gives at least a thirty (30) days’ written notice to Company prior to such audit. The audit shall be at the expense of Licensee unless material non-compliance is discovered as a result of the audit, in which case Company shall pay for the costs of such audit.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
- Entire Agreement. This Agreement and any other documents incorporated herein by reference constitute the entire agreement between Licensee and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
OPEN SOURCE LICENSING
Certain components of the Application may have incorporated open source licenses, which are further outlined on this webpage and may be updated by Company from time to time. Your continued use of the Application constitutes your agreement and acknowledgement of the updated Open Source Licenses listed.