FDS grants to Customer a non-transferable, non-exclusive right to use the FDS license subject to the Terms and Conditions set forth herein.
Customer shall pay FDS a monthly support fee each month beginning the month the System is installed for Customer’s use and continuing throughout the term hereof; provided however, beginning one (1) year after the Effective Date hereof, FDS shall have the right to increase the monthly support fee once every 12 months by five percent or the CPI (all items), whichever is greater. All invoices are Due Upon Receipt.
FDS shall have the right to add or change functionality to the System at times determined by FDS.
The initial term of the license under this Agreement shall be twelve (12) months commencing on the Effective Date and ending on the last day of the 12th month thereafter. Upon the expiration of the initial term, this Agreement shall automatically renew for successive twelve (12) month terms unless either party gives the other party written notice of its intent not to renew at least sixty (60) days prior to the renewal date.
FDS may terminate this Agreement and declare all amounts then due hereunder for the remaining term, immediately due and payable in the event of any of the following:
(i) failure of Customer to pay any fee or other payment hereunder when due, which failure continues for ten (10) days after written notice to Customer of such default;
(ii) any breach by Customer of any other covenant, warranty, or other term hereunder, which breach continues for thirty (30) days after written notice to Customer thereof; or
(iii) the commencement of any bankruptcy or insolvency proceedings for Customer.
In the event Customer is in default hereunder, FDS shall not be required to provide Customer with any services in connection with the System. Upon termination of this Agreement, the license to use the System shall terminate, and Customer and its customers shall no longer have access to the System website. FDS and Customer acknowledge and agree that the nature of the services provided for herein may now or hereafter necessitate the storage of data and other information relating to the Customer’s customers. To the extent FDS is required to convert or store any data or information of Customer’s customers upon termination hereof, Customer agrees to reimburse FDS for all costs and expenses incurred in connection any such conversion or storage.
FDS will use due care in performing all services required hereunder and agrees that it will, at its expense, use its best efforts to correct any errors to the extent that such errors are due to the malfunction of FDS’s server, operating systems, or programs, or to errors by FDS’s employees or agents. Corrections shall be limited to recreation of data or program files. This Warranty is exclusive and is in lieu of all other warranties, and Customer hereby waives all other warranties, expressed, implied, or statutory, including any implied warranties of merchantability or fitness for a particular purpose, relating to the System and any required services hereunder.
Limitation of Liability
In no event shall FDS be liable to Customer for indirect, special, punitive, or consequential damages (including loss of profits, loss of data, or damage to business reputation), even if FDS has been advised of the possibility of such damages. Due to the nature of the services being provided by FDS, it is agreed that in no event shall FDS be liable for any claim, loss, correction, damage, or expense caused by FDS’s performance or failure to perform hereunder, which is not reported by Customer within thirty (30) days of such performance or failure to perform. Neither party shall be deemed to be in default of any provisions of this Agreement or be liable to the other party or to any third party for any delay, failure in performance, or interruption of performance resulting directly or indirectly from acts of God, war, insurrection, riot, strikes, civil disturbance, interruption of electrical power or communications, or other causes beyond the control and without the fault or negligence of a party. Liability of FDS in any and all categories and for any and all causes arising out of this Agreement shall not in the aggregate exceed the total monthly service charges paid by Customer to FDS during the preceding twelve (12) month period.
Use of Customer Data
Customer hereby stipulates and agrees that FDS may use and disclose, and may authorize its agents, affiliates, subcontractors (including any downstream third party service provider) to use and disclose, except as otherwise prohibited by applicable law, any and all data and information, including, but not limited to, protected health information and other information of Customer’s customer(s), created or received by, disclosed, or otherwise made available to, FDS or any agent, affiliate or subcontractor of FDS in connection with this Agreement, or any other arrangement or agreement between FDS and Customer. Without limitation, such uses and disclosures shall include: (i) using data and information to provide data aggregation services as permitted by 45 CFR § 164.504(e)(2)(i)(B); and (ii) using data and information to create information that is not individually identifiable health information under applicable federal law, and (iii) disclosure to any third party not otherwise prohibited by law. Customer warrants that it has obtained or will obtain such authorization from its customers as may be required under applicable law to permit the Customer and/or FDS to use and disclose such information.
To the extent the nature of the relationship between Customer and FDS involves the use and disclosure of Protected Health Information (as that term is defined in 45 C.F.R. Section 160.103), each party agrees to execute a mutually agreeable Business Associate Agreement.
Customer assumes liability for and hereby agrees to indemnify and hold FDS harmless for any and all claims, actions, losses, damages, including reasonable attorneys’ fees, obligations, liabilities and liens arising out of any act or omissions of Customer its employees or agents or customers. Furthermore, Customer hereby releases and discharges FDS from and against any and all claims, actions, losses, damages, obligations, and liabilities, including without limitation, reasonable attorneys’ fees, now existing or hereafter arising, that arise out of or are related to the System, regardless of whether such claims, actions, losses, damages, obligations, or liabilities are caused or alleged to be caused by the sole or concurrent negligence of FDS, its employees or agents, unless occasioned solely by the gross negligence or willful misconduct of FDS. The provisions of Section 7 shall survive termination of this Agreement with respect to events occurring prior to such termination.
Compliance With Laws
Customer and its agent(s) shall at all times during the term of this Agreement strictly adhere to, and comply fully with, all applicable federal, state and local rules, regulations and laws, Executive Orders and implementing regulations as they currently exist and may hereafter be amended, including, but not limited to, those pertaining to Customer’s customers’ rights to, and privacy and security of, any and all data and other information about such customers.
Relationship of Parties
Nothing contained in this Agreement shall be construed as creating a joint venture, partnership or employment arrangement between the parties hereto, nor shall either party have the right, power or authority to create any obligation or duty, expressed or implied, on behalf of the other party hereto.
Notices required to be given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, transmitted by confirmed facsimile, or sent by a nationally recognized overnight courier service, or by registered or certified mail, postage prepaid, to the addresses set forth above.
No failure on the part of FDS to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof or modify the terms of this Agreement. The exercise of any one remedy shall not be deemed to waive or preclude the exercise of any other remedy.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any choice of law provisions thereof, or any other principle that could require the application of the law of any other state. This Agreement is performable in Tarrant County, Texas, which shall be the exclusive venue for any actions or proceedings relating to this Agreement.
Data from Third Party Sources
FDS uses data sources, both public and commercial (e.g. Outcomes, Mirixa), in some FDS products such as MYDATAMART and ENGAGE.to provide Customer with enhanced services. This data is shared with FDS by the third party and integrated into FDS’ software. This data is to be used by the Customer in delivering Medication Therapy Monitoring (“MTM”) to a person who is eligible to receive MTM.
In the event that any provision hereof is found to be invalid or unenforceable pursuant to any judicial, administrative, or other governmental decree or decision, rule or law, the remainder of this Agreement shall remain valid and enforceable according to its terms. It is expressly understood and agreed that each provision of this Agreement that provides for a disclaimer of warranties, limitation on liability, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such.
Customer shall not divulge or make available to any party other than FDS or use for their own purposes, any documents or Confidential Information or other business data of FDS furnished to Customer under this Agreement without the prior written consent of FDS and shall keep the same in strictest confidence, except insofar as such documents and material, or any part thereof, have been previously published, become part of the public domain, or have been provided under an obligation created by court or governmental action. “Confidential Information” as that phrase is used herein, means and includes, (whether or not identified as confidential, and whether or not in writing and whether disclosed to the other party before or after the effective date of the Agreement, any information disclosed by FDS to Customer either directly or indirectly in writing, orally, or by inspection of tangible objects (i) that FDS identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself including, but not limited to: intellectual property, technology and/or business of FDS including, but not limited to know-how, inventions, discoveries, formulae, ideas, designs, drawings, plans, reports, business, marketing, sales or financial information which FDS maintains as confidential and proprietary.
Customer agrees that the System and all licensed materials (including, without limitation, databases, program statements, systems, products, services, layouts, designs, formats, developments, changes, documentation, software, websites, algorithms, report formats, modifications or new features relating thereto and know-how), as delivered by FDS or as subsequently updated, merged, substituted, or modified by FDS (other than Customer’s customer data or Customer’s proprietary marks included on the website), is, and shall remain, the confidential and proprietary property of FDS regardless of whether this information is marked as confidential or proprietary. Proprietary information shall include (a) the terms of this Agreement (but not the existence thereof) and all information disclosed by FDS to the Customer pursuant to this Agreement; (b) any information or material that would give a third party some competitive business advantage or the opportunity of obtaining such advantage, or the disclosure of which could be detrimental to the interests of FDS to this Agreement and (c) any information or material known by Customer to be confidential or proprietary; or (d) any information or material which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Customer acknowledges and agrees that FDS’ Proprietary Information constitutes confidential material and trade secrets of FDS. FDS claims and reserves all rights, title and interest in and to the System and licensed material and all related documentation and Customer shall not take any action inconsistent with such ownership. FDS claims and reserves all benefits afforded under federal and international copyright law in all programming and documentation comprising the System as copyrighted works. No title or other ownership interest in the System and/or the licensed materials is now or hereafter transferred to Customer and Customer acknowledges and agrees that FDS owns and will continue to own all right, title and interest in and to the System. Customer will not contest the ownership of the System and licensed materials and will cooperate with FDS in defending FDS’s ownership rights to the System and Licensed Materials. The restrictions in this Agreement shall not be construed to supersede or eliminate any rights which FDS may have under applicable laws pertaining to trade secrets. Customer may not copy, duplicate or use the System, in whole or in part, except in compliance with this Agreement. Any and all use of the System by Customer shall always include all applicable FDS legends and notices. Customer shall not remove, obscure or alter FDS proprietary notices and legends in and on the System and/or on any licensed materials. Customer may not copy or duplicate the System or licensed material, in whole or in part. Notwithstanding the foregoing, Customer acknowledges and agrees that FDS may apply copy-protection routines or devices to the System and/or licensed material. Customer shall not : (i)disassemble, decompile, reverse compile, reverse assemble, reverse translate or otherwise reverse-engineer the System and or licensed material; (ii) circumvent any technological measure that controls access to the System or licensed materials; or (iii) use the System and licensed material other than pursuant to the terms of this Agreement. Customer further agrees to keep the System and/or Licensed Materials free and clear of all claims, liens and encumbrances, and any act of Customer purporting to establish any claim, lien or encumbrance shall be void. In the event of a breach of any of the provisions of this Agreement, FDS shall be entitled, in addition to any other available legal or equitable remedies, to ex-parte injunctive relief without any requirement to post bond as a condition of such relief.
Maintenance of Records
The parties agree that FDS can maintain a copy of this Agreement and any books, documents, records and other data of Customer as may be required to be maintained by FDS by applicable law, for such periods as such laws may require.
Hiring of Employees
Each party hereto agrees that, during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, it shall refrain from hiring any employee or officer of the other party hereto, unless such other party consents in writing to such hiring. Customer also understands they cannot contract with any employee of FDS outside of this Agreement. By contract, FDS employees are strictly forbidden from working with customers in a manner competitive with FDS.
The parties agree that either may assign this Agreement to any parent, subsidiary, affiliate or successor in interest (including a successor in interest to substantially all the assets of the assigning party). Except as noted, neither party may assign this Agreement, absent written consent of the other party, which will not be unreasonably withheld, conditioned or delayed. Any attempted assignment without such consent shall be void.
Entire Agreement, Amendments
This Agreement constitutes the entire Agreement, understanding, and representations, express or implied, between FDS and Customer regarding the subject matter hereof and supersedes all prior and contemporaneous communications between the parties including all oral or written proposals. No representation, warranty, promise, inducement, or statement of intention has been made by either party which is not embodied in this Agreement, and neither FDS, on the one hand, or Customer, on the other hand, shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement, or statement of intention not embodied herein. Any amendments to this Agreement must be in writing signed by both parties hereto.
Effective Date: September 29, 2017