Cimar UK Software As A Service AgreementLast modified: 10 April 2019
IMPORTANT LEGAL NOTICE:
THIS SOFTWARE AS A SERVICE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND CIMAR UK (LTD) AND ITS LICENSORS OR AS MAY BE PERMITTED, ITS AGENTS (THE “COMPANY”), WHICH SHALL GOVERN YOUR ACCESS TO, AND USE OF THE SOFTWARE AND SERVICES (AS DEFINED BELOW). IN THIS AGREEMENT, YOU AND YOUR COMPANY SHALL BE COLLECTIVELY REFERRED TO AS THE “SUBSCRIBER”. BY LOGGING INTO THIS SERVICE OR BY CLICKING ON THE "I AGREE" BUTTON WHERE PROMPTED, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE BOUND BY THEM, AND, IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT, WARRANT, AND COVENANT THAT YOU ARE AUTHORISED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY, AND BIND SUCH ENTITY TO THE TERMS AND CONDITIONS HEREOF. IF YOU DO NOT AGREE TO THESE TERMS, COMPANY IS UNWILLING TO GRANT YOU THE RIGHT TO ACCESS AND USE THE SERVICE AND YOU SHOULD CLICK ON THE "I DO NOT AGREE" BUTTON, IN WHICH CASE YOU MUST DISCONTINUE ANY FURTHER ATTEMPT TO ACCESS OR USE THE SERVICES, AND IF YOU HAVE PREVIOUSLY PAID ANY FEE TO ANY THIRD PARTY FOR SUCH ACCESS AND USE, THEN YOU MAY OBTAIN A REFUND FROM SUCH THIRD PARTY IN ACCORDANCE WITH SUCH THIRD PARTY’S REFUND POLICY.
This Agreement is made and entered into on as of the date that Subscriber clicks the “I AGREE” button as set forth above (the “Effective Date”) by and between Company and Subscriber. In consideration of the mutual promises contained herein, the parties hereby agree to the following:
BACKGROUND. Company has developed certain Software (defined below), which it provides as part of its Services (defined below). Subscriber wishes to utilise the Services, and Company desires to make the Services available to Subscriber, subject to the following terms and conditions.
DEFINITIONS. Capitalised terms shall have the meanings set forth in this section, or in the section where they are first used.
- “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorised Users to access the Services.
- "Application" a specific service offered by Company as part of the Services.
- “Authorised Facility” means a specific facility owned or operated by Subscriber from which Subscriber is authorised by Company to allow Authorised Users to access the Services.
- “Authorised User” means any individual who is an employee of Subscriber or such other person or entity as may be authorised by Company in writing, to access the one or more Services pursuant to Subscriber’s rights under this Agreement.
- “Data Collection Device” means the data collection equipment provided by Company to collect and transmit Subscriber Content and other data pursuant to this Agreement.
- “Documentation” means the technical materials provided by Company to Subscriber in hard copy or electronic form describing the use and operation of the Software.
- “Error” means a reproducible failure of the Software to substantially conform to the Documentation.
- “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Software.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Services” means Company’s proprietary service which allows Subscriber to exchange, transmit, and store images.
- “Subscriber Content” means any content developed by or on behalf of Subscriber and used with the Software.
- “Software” means the software programs and any associated user interfaces and related technology that Company makes available in connection with the Services pursuant to this Agreement.
PROVISION OF SERVICES
- Access. Subject to Subscriber’s strict compliance with the terms of this Agreement, Company will provide the Services via an online user interface. On or as soon as reasonably practicable after the Effective Date, Company shall provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorised Users to access the Services in accordance with the Access Protocols.
- Responsibility for Software and Content Hosting. Company shall, at its own expense, provide for the hosting of the Software which is accessible as part of the Services, provided that nothing herein shall be construed to require Company to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware (except for any Data Collection Mechanism(s) which may be supplied by Company), required by Subscriber or any Authorised User to provide access from the Internet to the Services.
- Data Collection Devices/Mechanisms. In connection with Company’s provision of the Services to Subscriber hereunder, Company may provide one or more Data Collection Devices to Subscriber, and, in such case, Company shall work with Subscriber to schedule the delivery, installation, and implementation of such Data Collection Devices. If Company does provide such Data Collection Devices to Subscriber, then, subject to the terms of this Agreement, Company grants Subscriber the right to use such Data Collection Devices solely for the purposes of this Agreement and for no other purpose. Subscriber shall take reasonable steps to ensure that any Data Collection Devices provided to Subscriber are not damaged by Subscriber or any of Subscriber’s employee’s, agents, contractors, or any other third party.
- HIPAA and UK Health Informatic Compliance. Company represents to Subscriber that the Services have been designed to be in compliance with the Health Insurance Portability and Accountability Act of 1996 as amended (“HIPAA”) and all relevant UK compliance requirements as of the Effective Date. If new requirements are promulgated under HIPAA or other relevant bodies that are applicable to the Services, then Company shall use commercially reasonable efforts to update the Services accordingly.
- License Grant. Subject to the terms and conditions of this Agreement, Company grants to Subscriber a non-exclusive, non-transferable license during the term, solely for Subscriber’s internal business purposes: (a) to access, use, perform, and digitally display the Software as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Subscriber’s use of the Services.
- Limitations. The Services, Software, Data Collection Devices, Documentation, and all other materials provided by Company hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. Subscriber agrees that it will not, and will not permit any Authorised User or other third party to: (a) permit any person to access the Software, Data Collection Devices, or Documentation or use the Services, other than the Authorised Users authorised under this Agreement; (b) modify, adapt, alter or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software, Data Collection Devices, or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organisation) of the Software; (e) use or copy the Software or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Software to any individual other than an Authorised User, except as expressly allowed herein. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Subscriber’s jurisdiction require Company to give Subscriber the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Subscriber must first request such information from Company and Company may, in its discretion, either provide such information to Subscriber or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that Company’s and its suppliers’ proprietary rights in the source code for the Software are protected. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Services, Data Collection Devices, Software, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software.
- Ownership. The Services, Software, Data Collection Devices, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. All rights in and to the Services, Software, Data Collection Devices and Documentation not expressly granted to Subscriber in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Software, Data Collection Devices, Documentation, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
- Open Source Software. Certain items of software may be provided to Subscriber with the Software and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of the section titled Indemnification or the subsection titled License Grant. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Subscriber’s rights under, or grants Subscriber rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified below.
FEES AND EXPENSES; PAYMENTS
- Fees. As of the Effective Date, it is not contemplated that Company will charge Subscriber any fees for access and use of the Services under this Agreement that are over and above those fees pre-agreed and contractually bound to enable your access to the Software as a permitted user under such agreement;
- Expenses. All costs and expenses incurred by Subscriber in connection herewith are the sole responsibility of Subscriber.
- Fair Usage Policy. This Software as a Service license is provided subject to the Company retaining the right to conduct an annual review of usage of the service by the authorised user and or the organisation that has granted the user access to the service.
SUBSCRIBER CONTENT AND RESPONSIBILITIES
- License; Ownership. Subscriber grants Company a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Subscriber Content as necessary for purposes of providing the Services and (b) to use the Subscriber trademarks, service marks, and logos as required to provide the Services. The Subscriber Content hosted by Company as part of the Services, and all worldwide Intellectual Property Rights in it, is the property of Subscriber. All rights in and to the Subscriber Content not expressly granted to Company in this Agreement are reserved by Subscriber.
- Authorised Users Access to Services. Subscriber may permit any Authorised Users to access and use the features and functions of the Services as contemplated by this Agreement. User IDs cannot be shared or used by more than one Authorised User at a time. Subscriber shall use commercially reasonable efforts to prevent unauthorised access to, or use of, the Services, and notify Company promptly of any such unauthorised use known to Subscriber.
- Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content hosted by Company as part of the Services shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; (e) otherwise violate the rights of a third party, including, without limitation, any privacy rights; or (f) violate any applicable law, ordinance, or government regulation applicable to such Subscriber Content. Subscriber agrees that any use of the Services contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorised and improper use of the Services.
- Subscriber Responsibility for Data and Security. Subscriber and its Authorised Users shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all passwords and other Access Protocols required in order the access the Services. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Content. Permission and rights to add, upload, share, store or use in any way, Patient information to this service is the sole responsibility of the Subscriber, you agree that Company bears no responsibility for subsequent access to such information.
- Copyright Policy. Company reserves the right to terminate its agreement with any Subscriber who repeatedly infringes third party copyright rights upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent.
- Additional Subscriber Responsibillities. It shall be Subscriber’s sole responsibility to perform those specific services that are necessary to establish Subscriber’s or Authorised Users’ use of the Software, Data Collection Devices, Documentation, and Services.
NO WARRANTY; DISCLAIMERS
- No Warranty; Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, DATA COLLECTION DEVICES, DOCUMENTATION, AND SERVICES ARE PROVIDED SOLELY ON AN “AS IS,” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DATA COLLECTION DEVICES, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY COMPANY. COMPANY DOES NOT WARRANT THAT ANY OR ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE, DATA COLLECTION DEVICES, AND SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER IN THEIR ENTIRETY.
LIMITATION OF LIABILITY
- Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, COMPANY OR ITS SUPPLIERS SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DATA COLLECTION DEVICES, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
- Amount of Damages. THE CUMULATIVE LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED FIFTY GBP POUNDS (£50). IN NO EVENT SHALL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER IN ITS ENTIRETY. THIS LIMITATION OF LIABILITY SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidential Information. The Software, Services, Data Collection Devices and Documentation are the Confidential Information of Company. Subscriber agrees that it will not use or disclose to any third party any Confidential Information of the Company, except as expressly permitted under this Agreement. Subscriber will limit access to the Confidential Information to Authorised Users who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, Subscriber will protect the Company’s Confidential Information from unauthorised use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At Company’s request or upon termination of this Agreement, Subscriber will return to Company or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that Subscriber has in its possession at the time of such request or as of the effective date of termination, and, if requested by Company, Subscriber shall provide to Company a written affidavit certifying compliance with this sentence.
- By Subscriber. Subscriber will defend, indemnify, and hold harmless Company, and its officers, directors, employees, agents, and customers (each, a “Company Indemnitee”) from and against any claim, suit, demand, or other legal action (each, a “Claim”) brought by a third party against any Company Indemnitee(s), to the extent such Claim arises from or relates to any breach of this Agreement by Subscriber, and Subscriber shall pay all liabilities, costs, damages, and expenses (including, without limitation, attorneys’ fees) suffered or incurred by Company Indemnitees in connection with such Claim.
TERM AND TERMINATION
- Term. This Agreement commences on the Effective Date and remains in effect on a month-to-month basis unless terminated as set forth below.
- Termination. Either party may terminate this Agreement for convenience, for any or no reason, upon written notice to the other party, with such termination becoming effective at 11:59PM GMT of the last day of the then-current month. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, Subscriber shall comply with the obligations to return all Confidential Information of Company, as set forth in the section titled Confidentiality; (c) within ten (10) days after the effective date of termination, Company shall discontinue all use of Subscriber Content and, (d) within ten (10) days after the effective date of termination, Subscriber shall allow Company reasonable access to Subscriber’s premises so that Company may take possession of the Data Control Devices, or, if requested by Company, Subscriber shall return the Data Collection Devices to Company. Any payment obligation of Subscriber, and the sections and subsections titled Definitions, Limitations, No Warranty; Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of England and Wales, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subscriber hereby expressly consents to the personal jurisdiction and venue in the UK for any lawsuit filed there against Subscriber by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Subscriber is located may be different from UK law. Subscriber shall always comply with all international and domestic UK laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software, Data Collection Devices, Documentation, or Services hereunder.
- Export. Subscriber agrees not to export, re-export, or transfer, directly or indirectly, any U.S. or UK technical data acquired from Company, or any products utilising such data, in violation of the United States export laws or regulations or similar laws as applicable in the UK.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Remedies. Company’s rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Services, Data Collection Devices, Software, and Documentation contain valuable trade secrets and proprietary information of Company, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of Company will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy. In such case, Company will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Software, Data Collection Devices, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
- No Assignment. Subscriber shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Company, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign this Agreement or delegate its obligations hereunder, in whole or in part, to any third party provided that such third party agrees to be bound by the terms hereof. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labour dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. Subscriber’s relationship to Company is that of an independent contractor, and neither party is an agent, employee, or partner of the other. Subscriber will not have and will not represent to any third party that it has, any authority to act on behalf of Company.
- Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Master Service Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognised express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorised signatory of Subscriber and the Company. Without limiting the generality of the foregoing, if Subscriber has previously submitted a purchase order to Company regarding the Services, then Subscriber expressly agrees that any terms and conditions in such purchase order, that are additional to or different from the terms and conditions of this Agreement, are superseded by the terms and conditions of this Agreement, are expressly excluded from this Agreement, and shall not, in any manner whatsoever, apply to this Agreement, notwithstanding any language in such purchase order that would purport to supersede any terms and conditions of this Agreement.
If you have additional questions, please contact us any time. Or write to us at:
Cimar (UK) Ltd
(Suite 701), Kemp House,
152 - 160 City Road,
London EC1V 2NX.