End User License Agreement
End User Sublicense Agreement
This End User Sublicense Agreement (“Agreement”) is between CREcare, LLC, a Massachusetts limited liability company (“CREcare”) and the Sublicensee (“You” or “Your”) identified on _______________ (“Bill of Sale”), the terms of which are incorporated into this Agreement.
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
1.1 “Site(s)” means the Sublicense sites identified on the Bill of Sale.
1.2 “Product” or “Products” means the CREcare product or products identified on the Bill of Sale.
- GRANT OF SUBLICENSE; DELIVERY.
2.1 Sublicense Grant. Subject to the terms of this Agreement and the Bill of Sale, CREcare grants to You a nonexclusive, revocable, non-transferable, limited sublicense under CREcare’s intellectual property rights: (i) to use the CREcare Products(s) which are listed on the Bill of Sale for use by Your employees and agents solely with Your patients served by the Sites for the period for which sublicense fees have been paid. This is a Sublicense Agreement and not an Agreement for sale. All rights not specifically granted are reserved to CREcare and its licensors.
2.2 Right to Audit. During the term of this Agreement and for three (3) years thereafter, CREcare will have the right on reasonable notice, to conduct and/or direct a review or audit of Your records to verify that the Products are being used only at the Sites listed on the Bill of Sale and only in compliance with other terms of this Agreement.
- SUBLICENSE RESTRICTIONS.
3.1 Non-Transferable. You agree not to, and will not allow others to, license, rent, lease, assign, copy, share (for compensation or otherwise), or distribute the Products for use or access by third parties.
3.2, No Modifications. You agree you will not modify, translate, create derivative products or other versions of the Product from the Product.
3.3 Security. You agree to secure the Products to prevent unauthorized access or use by others.
3.4 Employees; Trademarks. You will take all reasonable steps to ensure that Your employees and agents comply with the terms of this Agreement. You agree to respect and not to alter, remove or conceal any copyright, trademark, government restricted rights, patent, trade name or other proprietary marking that may appear in connection with the Products.
4.1 Payment. The Products and this Agreement are being issued to You only upon Your payment of the fee(s) listed in the Bill of Sale.
4.2 Taxes. You will pay all taxes (except taxes based on CREcare’s net income) on amounts payable to CREcare.
- DISCLAIMER AND LIMITATION OF LIABILITY.
5.1 CRECare not a health provider or health professional. CRECARE AND ITS LICENSOR ARE NOT HEALTH CARE PROVIDERS. CRECARE AND ITS LICENSOR, OWNERS, OFFICERS, DIRECTORS AND EMPLOYEES DO NOT PRACTICE MEDICINE OR PROVIDE CLINICAL SERVICES OF ANY KIND. THE PRODUCT IS PROVIDED AS A TOOL DESIGNED TO ASSIST HEALTH CARE PROVIDERS AND ADMINISTRATORS AND IS NOT INTENDED AS A SUBSTITUTE FOR THE MEDICAL JUDGMENT OF A QUALIFIED PHYSICIAN OR OTHER HEALTH CARE PROVIDER. CRECARE AND ITS LICENSOR, OWNERS, OFFICERS, DIRECTORS AND EMPLOYEES ARE NOT RESPONSIBLE FOR ANY PATIENT CARE RENDERED, OR PATIENT CARE DECISIONS MADE, IN CONNECTION WITH THE USE OF THE PRODUCTS.
5.2 Disclaimer. THE PRODUCTS ARE BEING PROVIDED TO YOU “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CRECARE, NOR CRECARE’S LICENSOR, MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. 5.3 Limitation of Liability. To the maximum extent permitted by applicable law (i) the maximum cumulative liability of CREcare and CREcare’s successors, licensors, owners, officers, directors and employees for damages to You under this Agreement, regardless of the form of legal action, whether in contract or in tort, including without limitation, negligence, will in no event exceed the amount of fees paid by You under this Agreement during the twelve-month period prior to the date the cause of action first arose, and (ii) IN NO EVENT SHALL CRECARE, OR CRECARE’S SUCCESSORS, LICENSORS, OR THEIR RESPECTIVE TRUSTEES, DIRECTORS, MEMBERS, OFFICERS, EMPLOYEES OR AFFILIATES, BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ECONOMIC DAMAGES OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER CRECARE OR ITS LICENSORS SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING.
6. CONFIDENTIAL INFORMATION.
Each party may have access to proprietary and confidential information of the other party, including without limitation, Products and de-identified patient data and all other information that is identified in writing as confidential at the time of disclosure (“Confidential Information”). Each party agrees that it will use Confidential Information only in the performance of this Agreement, will not disclose such Confidential Information to any third party except as specifically authorized in this Agreement and will take all reasonable precautions to protect the confidentiality of such Confidential Information.
Neither party to this Agreement shall use the name of the other party, or of Boston University or Dr Alan Jette, in any advertising or promotional materials without the prior written approval of the general form and content of the materials by the other, and/or by Boston University or Dr. Allen Jette respectively.
- INTELLECTUAL PROPERTY.
As between the parties, CREcare and its licensors will own all rights, title and interest in the Products, and all intellectual property rights therein, and You will own all rights, title and interest in patient data generated by You.
You will indemnify and hold harmless CREcare, its successors, and its licensors and their respective trustees, members, owners, directors, officers, employees, agents, successors and assigns (the ” Indemnitees”), against any and all liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) that may be incurred by or imposed upon the Indemnitees, or any of them, in connection with or resulting from any third party claim, suit, demand, action or judgment arising out of Your breach of this Agreement, negligence, or use of the Product in any manner other than as specifically permitted in this Agreement.
10. TERMS AND TERMINATION.
10.1 Term. This Agreement will begin on the Effective Date stated in the Bill of Sale, continue for a period of twelve months and shall be renewed for successive twelve month periods provided You timely pay the annual license fee prior to the anniversary date and pay all other fees when due..
10.2 Termination. This Agreement shall automatically terminate in the event that You fail to pay any fee when due. In addition, this Agreement shall terminate in the event that either party is in default of any of any other obligation under this Agreement and fails to remedy such default within thirty (30) days after receipt of written notice thereof.
10.3 Consequences. Termination of this Agreement will not affect the rights and obligations of the parties accrued prior to termination. Prepaid fees are nonrefundable. In the event of termination, You will promptly (i) discontinue all use of the Product; (ii) destroy all copies of the Product and return to CREcare all copies of all other Confidential Information; and (iii) certify in writing to CREcare, within thirty (30) days of termination of this Agreement that You have complied with the foregoing. CREcare will return to You or destroy all copies of Your Confidential Information and certify in writing to You, within thirty (30) days of termination of this Agreement that CREcare has complied with the foregoing. Sections 1, 2.2, 3. 5, 6, 7, 8, 9 and 11 will survive expiration or termination.
11.1 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall be granted or withheld in the party’s sole discretion, except that either party may assign this Agreement in the event of any sale, merger, consolidation, recapitalization or reorganization involving in each case the sale of substantially all of the capital stock or ownership units of such party or all or substantially all of the assets of such party. This Agreement will be binding on the successors and permitted assigns of the parties.
11.2 Entire Agreement. This Agreement, including the Bill of Sale constitutes the entire and only agreement between the parties relating to the subject matter hereof, and all prior negotiations, representations, agreements and understandings are superseded hereby. Amendments and waivers must be in writing and signed by both parties. The failure of either party to enforce in any one or more instances any of the terms of this Agreement will not be construed as a waiver of future performance of any such term. The preprinted provisions of Your purchase orders will not apply.
11.3 Notice. Any notice required by this Agreement will be sufficiently given if sent in writing by prepaid national overnight delivery service with a tracking number which evidences delivery to the other party at the address on the Bill of Sale, or at such other addresses as may be designated by notice given from time to time under the terms of this provision.
11.4 Governing Law. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of law principles. The UN Convention on Contracts for the International Sale of Goods does not apply.
11.5 Severability. If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be reformed, construed and enforced to the maximum extent permissible to carry out the intent of the parties, and the remaining provisions will remain in full force and effect.
11.6 Headings. The headings used in this Agreement are for ease of reference only and will not be used to interpret any aspect of this Agreement.
11.7 Independent Contractors. The parties are independent contractors and not agents or employees of the other party.