General Terms and Conditions
“Authorized User” means Customer’s clinicians, administrators, and nursing staff whose duties require access to or use of the Licensed Product. Customer shall not appoint a third party as an Authorized User.
“Documentation” means any related user documentation, in written, electronic or other format, that accompanies the Patient Pattern software and that Patient Pattern generally provides to licensees of the Patient Pattern software.
“Licensed Product” means (a) the Software; (b) any Documentation; and (c) all updates, upgrades, bug fixes, patches and other modifications to the foregoing items provided by Patient Pattern.
“Professional Services” means the installation services, training, written reports, communications, data analysis and other related and necessary information provided by Patient Pattern to Customer as set forth in Exhibit C.
“Software” means the Patient Pattern software licensed herein and described in Exhibit A.
Subject to the terms and conditions of this Agreement, Patient Pattern hereby grants Customer a nonexclusive, nontransferable, non-sublicenseable license to use the Licensed Product solely for Customer’s own internal use at this single physical location and for analyzing its own patients’ data. The Customer shall be solely responsibility for the accuracy, quality, integrity and legality of its patients’ data. This license will terminate immediately upon any termination of this Agreement. Customer has no right to sublicense or sell the Licensed Product, or to use it in a service bureau mode.
Customer will pay Patient Pattern the fees set forth in Exhibit B for the Software license granted and the Professional Services provided hereunder. The license fees, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Patient Pattern and hold Patient Pattern harmless for all sales, use, VAT, excise, property or other taxes or levies which Patient Pattern is required to collect or remit to applicable tax authorities.
Any amount payable under this Agreement and not paid within thirty (30) days after its invoice date will accrue interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. Customer will pay Patient Pattern all such interest and costs of collection, including but not limited to, attorneys’ fees and court costs. Non-payment by the due date may result in suspension of use of the Software and Professional Services with additional fees incurred for resume and re-start by Patient Pattern.
: Reservation of Rights. By signing this Agreement, Customer irrevocably acknowledges that Customer has no ownership interest in the Licensed Product and the Licensed Product contains confidential information of, is a trade secret of, and is proprietary to Patient Pattern and its licensors. Patient Pattern shall own all rights, title, and interest in such Licensed Product, subject to any limitations associated with intellectual property rights of third parties and specifically reserves all rights not specifically granted herein. Customer shall not remove any copyright or other proprietary notice or legend contained on or included in the Licensed Product. Customer shall not reverse engineer, disassemble, decompile, or unlock the Licensed Product in whole or in part for any reason. Customer will keep the Licensed Product free of all claims, liens and encumbrances.
: Confidential Information includes all information disclosed by either party, before or after the Effective Date, that is generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. In particular, Customer acknowledges that Patient Pattern considers the Licensed Product to be secret and proprietary information of great value to Patient Pattern. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Licensed Product or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Patient Pattern Confidential Information. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information. However, neither party shall have any confidentiality obligation with respect to disclose of such information to others not parties to this Agreement that: (i) is or becomes available to the public through no breach of this Agreement; (ii) was previously known by the receiving party without any obligation to hold it in confidence; (iii) is received from a third party free to disclosure such information without restriction; (iv) is independently developed by the receiving party without the use of the confidential information of the disclosing party; (v) is approved for release by written authorization of the disclosing party, but only to the extent of such authorization; or (vi) is disclosed in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof, but only to the extent of and for the purposes of such order, and only if the receiving party first notifies the disclosing party of the order and permits the disclosing party to seek an appropriate protective order. The obligations of this paragraph will survive for five (5) years following any termination of this Agreement.
Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations.
Suggestions/Improvements to Software
Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Licensed Product or other Patient Pattern materials provided to Customer shall be owned by Patient Pattern. Nothing in this Agreement shall preclude Patient Pattern from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Patient Pattern in the performance of services hereunder.
The Licensed Product will operate in a technically sound manner without unreasonable downtime during the Term. Patient Pattern will make commercially reasonable efforts to eliminate any substantial, reproducible technical errors, and restore any service interruptions, reported in writing by Customer during the Term, provided Customer is not in default of any of its obligations under this Agreement at any time.
Except as provided in immediately preceding Uptime Warranty paragraph, Customer acknowledges that the Licensed Product is being provided without warranty in its current "AS IS" condition. Patient Pattern makes no warranty of any kind whether express or implied, including any implied warranties of merchantability, fitness for a particular purpose and non-infringement.
Limitation of Liability
IN NO EVENT SHALL PATIENT PATTERN, PATIENT PATTERN’S THIRD PARTY LICENSORS OR SUB-CONTRACTORS BE LIABLE UNDER ANY THEORY OF LIABILITY, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE PATIENT PATTERN’S SERVICES. PATIENT PATTERN SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Patient Pattern shall provide the installation, training, educational, analytical, and consulting services related to the Licensed Product as set forth in Exhibit C. All work product delivered in connection with such services shall be pursuant to a nonexclusive license to use the work product solely for Customer’s own internal purpose and any revisions or updates made to the Licensed Product as the result of such Professional Service shall be treated for all purposes under this Agreement as Licensed Product and all intellectual property rights therein shall be retained by Patient Pattern.
Support and Maintenance
Upon execution of this Agreement, Patient Pattern will render the services detailed in Exhibit D in support of the Licensed Product.
The term of this Agreement and the license rights granted hereunder will commence upon the Effective Date of this Agreement and will continue for one (1) year (“the “Initial Term”), after which this Agreement and the license rights granted hereunder will automatically renew for [up to ___] additional one (1) year terms (each a “Renewal Term”; the “Initial Term” and the “Renewal Terms” collectively referred to herein as the “Term”) unless either party gives the other written, non-renewal notice at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.
Termination by Patient Pattern
This Agreement may be terminated by Patient Pattern (i) if Customer fails to make any payments due hereunder within ten (10) days after Patient Pattern delivers notice of default to Customer; (ii) on ten (10) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such ten (10) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern or for any other reason or no reason.
Effect of Termination
Upon termination or expiration of this Agreement, Patient Pattern shall have no further obligation or liability hereunder and all fees due under the Agreement shall become due and payable to Patient Pattern immediately upon such termination.
Termination of this Agreement or any service created hereunder shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement including, but not limited to, any Statement of Work or exhibit.
Customer may not assign this Agreement or otherwise transfer any service created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Patient Pattern.
This Agreement contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or understandings among the parties with respect to the subject matter hereof. This Agreement may be only amended by a written document signed by all parties. There are no representations, warranties, or obligations of any party not expressly contained herein.
Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed and specified on the page below. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
Patient Pattern shall not be liable to Customer for any delay or failure of Patient Pattern to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Patient Pattern. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
Severability and Reformation
Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
Patient Pattern is an independent contractor and nothing in this Agreement shall be deemed to make Patient Pattern an agent, employee, partner or joint venture of Customer. Patient Pattern shall have no authority to bind, commit, or otherwise obligate Customer in any manner whatsoever.
US Government Restricted Rights
The Licensed Product is provided with restricted rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subdivision (b)(3)(ii) of the Rights in Technical Data and Computer Software clause 252.227-7013.
All rights and licenses granted under this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (as amended, the “Code”), licenses of rights to “intellectual property” as defined in the Code.
Choice of Law
This agreement shall be governed and interpreted by the Laws of the State of New York without regard to the conflicts of law provisions of any state or jurisdiction.
Patient Pattern uses appropriate administrative, technical, and physical security measures to protect Data About Patient Pattern Customers.
Changes to this Privacy Statement
Patient Pattern reserves the right to change this Privacy Statement. Patient Pattern will provide notification of the material changes to this Privacy Statement through the Company’s Web site at least thirty (30) business days prior to the change taking effect.
Questions regarding this Privacy Statement or the information practices of the Company’s Web site should be directed to firstname.lastname@example.org or by mailing Patient Pattern...Patient Pattern, Inc
701 Ellicott Street
Buffalo, NY 14203
Last updated July 22nd, 2017.