Artisight, Inc.
Software as a Service
Terms and Conditions
THIS SOFTWARE AS A SERVICE TERMS AND CONDITIONS (“Terms”) apply to orders for software and services by direct commercial and public sector purchasers and to commercial end-users who purchase through a reseller (“Customer”), unless Customer and Suppliers (defined below) have entered into a separate written agreement that applies to Customer’s orders for specific products or services, in which case, the separate written agreement governs Customer’s purchase and use of such specific products or services.
Terms and Conditions
THIS SOFTWARE AS A SERVICE TERMS AND CONDITIONS (“Terms”) apply to orders for software and services by direct commercial and public sector purchasers and to commercial end-users who purchase through a reseller (“Customer”), unless Customer and Suppliers (defined below) have entered into a separate written agreement that applies to Customer’s orders for specific products or services, in which case, the separate written agreement governs Customer’s purchase and use of such specific products or services.
The term “Supplier(s)” means, as applicable:
Artisight, Inc.
2370 Dorina Drive
Northfield, IL 60093
BACKGROUND
Artisight’s software (the “Software” as more specifically defined below) is a suite of products intended to improve productivity in healthcare settings.
Customer is a reseller, hospital, surgical center, clinic, medical center, or physician’s office that desires to license the Software to coordinate activities within its settings.
Artisight is willing to provide the Software to Customer, and Customer is willing to license the Software, all under the terms and conditions.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual promises in these Terms, Artisight and Customer agree as follows:
1. Definitions.
a. “Software” means the Artisight Software solely in machine-readable object code, together with any upgrades, error corrections, modifications, or enhancements developed by Artisight and made generally available to other customers.
b. “Documentation” shall mean explanatory written material accompanying the Software.
c. “Licensed Materials” shall mean, collectively, the Software and the Documentation.
d. “Customer Data” shall mean data and information collected by the Software.
e. “Source Code” shall the human readable form of a program or other work that is suitable for making modifications to it, including all modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an executable (object code).
f. “Services” shall mean Artisight services identified in a Statement of Work that provides use of Artisight’s software, technical support, analytics, and consulting services on a term use basis.
g. “Statement of Work” is a written document attached to this Agreement under Exhibit A or executed separately by Artisight and Customer for the purpose of purchasing Software and accompanying support services under the terms and conditions.
h. “Subscription Term” shall mean that period specified in a Statement of Work during which Customer will have access and use of the Services described in the Statement of Work. The Subscription Term shall renew for successive 12- month periods unless either party delivers written notice of non-renewal to the other party at least 60 days prior to the expiration of the then-current Subscription Term.
2. License. Artisight grants Customer the following non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license during the length of these Terms: (a) to download, install, access and use the Software Customer’s own business operations.
3. Limitations on License and Confidentiality. Customer shall not use or copy the Licensed Materials for purposes other than those permitted in Section 2. Customer shall not sell, rent, lease, sublicense, or transfer the Software. Customer shall not decompile, disassemble, reverse engineer, modify, or create a derivative work of the Software. Customer has no right to inspect, possess, use, copy, or attempt to discover the source code (or any portion thereof) used to create the Software (“Source Code”), except to the extent that Customer is expressly permitted to decompile the Software under applicable law and provided Customer notifies Artisight of its intention to decompile the Software and its reason to do so. Customer acknowledges that the Source Code is valuable and proprietary confidential information of Artisight. If Customer does come into possession of the Source Code, for any reason, Customer shall (i) promptly notify Artisight, (ii) not disclose, directly or indirectly, to any third party any portion of the Source Code; (iii) not use or exploit the Source Code in any way; (iv) promptly return to Artisight all whole or partial copies of the Source Code; (v) take all reasonably necessary precautions to protect the confidentiality of the Source Code. The provisions of the foregoing sentence are subject to and may be limited by Customer’s rights under applicable law. Customer acknowledges that its breach of the confidentiality terms of this Section will cause irreparable harm to Artisight that is inadequately compensable in damages and acknowledges that Artisight is entitled to injunctive relief for such breach.
4. Support. Artisight shall provide Support and Maintenance Services for the Software via email, phone, and onsite presence as outlined in Exhibit B.
5. Artisight’s Professional Services. Artisight shall perform professional and/or technical services, including all labor, materials, expertise, and supplies necessary for such services, under this Agreement (collectively, “Services”) on a project-by-project basis. The scope of work for each project of work (a “Project”) shall be set forth in an addendum to these Terms (a “Statement of Work”) that describes the Project and is executed by each party. Artisight’s Services shall consist of integration, installation, and the development of various items of software code and/or documentation (collectively, “Deliverables”) as described more particularly in a Statement of Work. Services shall also include advice, counseling, training, and support relating to the Deliverables for a Project to the extent specified in the Project’s Statement of Work.
6. Relationship of Artisight and Customer. Artisight and its employees and/or contractors shall perform the provisions of this Agreement as independent contractors and shall not be considered agents of Customer, nor shall Artisight’s personnel be considered employees of Customer. Nothing contained in this Agreement shall be construed to (i) constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking, or (ii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
7. Change Orders. Customer may, from time to time, request in writing changes to the Statement of Work. Thereafter, Artisight shall, as soon as practical, submit a proposal of changes in cost and schedule of Milestones. Such changes may be authorized by a change order (“Change Order”) signed by the parties, and upon execution, Artisight shall effect the changes provided in the Change Order.
8. Fee. In consideration of Customer’s Software license rights, prior to the Initial Term and each Renewal Term, Customer shall pay in advance the then-current annual license fee for the Software.
9. Expenses. Artisight shall be entitled to seek reimbursement of reasonable out of pocket expenses actually incurred by Artisight for Services on a Statement of Work.
10. Confidentiality, Privacy, Security, and Customer Data Ownership.
a. Confidential Information. “Confidential Information” shall mean confidential or other proprietary information that is disclosed by one party (the “Disclosing Party” with respect to such information) to the other party (the “Receiving Party” with respect to such information) under these Terms, including without limitation, Customer Data, trade secrets, hardware and software designs and code, schematics, drawings, product specification and documentation, business and product plans, forecasts, information about potential customers, customer lists, and other confidential business information. “Confidential Information” also includes any information disclosed by a Disclosing Party to a Receiving Party that is considered to be Confidential Information in a nondisclosure agreement with a third party, including without limitation the End Client, after the Receiving Party is notified of such nondisclosure agreement. Confidential Information shall not include information that: (i) is in the Receiving Party’s possession without restrictions of confidentiality prior to receipt from the Disclosing Party, (ii) is or becomes public knowledge other than due to disclosure by the Receiving Party, (iii) became known to the Receiving Party from a source other than the Disclosing Party other than by the breach of an obligation of confidentiality owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party, if such development was accomplished without the use of the Disclosing Party’s Confidential Information.
b. Disclosure and Use of Confidential Information. The Receiving Party shall (i) not disclose, directly or indirectly, to any third party any portion of the Confidential Information it receives from the Disclosing Party without the prior written consent of the Disclosing Party; (ii) not use or exploit the Confidential Information in any way except for the purpose of evaluating and providing Services hereunder and drafting Statements of Work and Change Orders; (iii) promptly return or destroy, at the Disclosing Party’s option, all materials and documentation comprising or containing the Confidential Information received from the Disclosing Party within ten (10) days after termination of these Terms or upon request of the Disclosing Party; (iv) take all reasonably necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as the Receiving Party would with its own confidential information, but in no event less than a reasonable degree of care; (v) disclose Confidential Information to employees only if they have a need to know the Confidential Information; (vi) cause its employees who receive access to Confidential Information to abide by the restrictions and standings of these Terms; and (vii) promptly advise the Disclosing Party in writing upon learning of any unauthorized use or disclosure of the Confidential Information. All Confidential Information is and shall remain the property of the Disclosing Party or the third party that disclosed the Confidential Information to the Disclosing Party. The Receiving Party shall not reverse engineer, decompile, or disassemble any software disclosed to the Receiving Party. Nothing in these Terms precludes a Receiving Party from preserving information that it must retain under applicable law.
c. Injunctive Relief. The Receiving Party acknowledges that breach of this Section shall cause irreparable harm to the Disclosing Party that is inadequately compensable in damages, and acknowledges that the Disclosing Party is entitled to injunctive relief for such breach.
d. Privacy. Artisight’s privacy practices are governed by its Privacy Policy, which is incorporated by reference as if fully set forth herein.
e. Security. Artisight will take all reasonably necessary precautions to protect the confidentiality, integrity, and availability of Customer Data.
f. HIPAA Business Associate Agreement. Without limiting the generality of the other provisions of this Section 10, the parties have executed or will execute a HIPAA Business Associate Agreement, which is incorporated by reference as if fully set forth herein.
g. Data Ownership. Subject to subsection (d), Customer will retain all right, title and interest, in and to the Customer Data.
11. Intellectual Property Ownership. The Licensed Materials are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Licensed Materials are licensed to Customer, and not sold to Customer. Subject to the rights granted in Section 2, Artisight owns all right, title, and interest in and to the Licensed Materials and any and all patent, trademark, and copyright rights in the Licensed Materials shall remain the sole and exclusive property of Artisight. All rights not expressly granted under Section 2 are reserved by Artisight. Customer shall preserve and not remove any proprietary marks, legends, and copyright notices that appear in the Licensed Materials, or any portion thereof. These Terms do not grant Customer any rights in connection with any trademarks or service marks of Artisight.
12. Warranty, Disclaimer of Warranties and Limitations of Liability.
a. Artisight warrants that the Software will operate substantially in accordance with the Documentation during the length of these Terms.
b. Artisight and its licensors’ entire liability and Customer’s exclusive remedy for Software that does not operate in accordance with the Documentation is, at Artisight’s sole option, either (i) replacement of the Software upon its return to Artisight, or (ii) return of the Software to Artisight and a refund of the license fee paid to Artisight.
c. EXCEPT AS WARRANTED IN SECTION 12(a), THE LICENSED MATERIALS ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ARTISIGHT AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR DETERMINING THAT THE LICENSED MATERIALS MEETS ITS REQUIREMENTS, AND HAVE THE QUALITY THAT IT NEEDS, AND ARTISIGHT DISCLAIMS ANY SUCH RESPONSIBILITY.
d. Limitation of Liability. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL ARTISIGHT OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF ARTISIGHT OR ANY OF ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL ARTISIGHT’S LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR RELATING TO, IN WHOLE OR IN PART, THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, OR SERVICES, WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, EXCEED THE FEES PAID TO ARTISIGHT. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF DAMAGES SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13. Term and Termination.
a. Term. These Terms shall continue in force for the term first set forth above (the “Subscription Term”). These Terms shall renew for one year successive terms thereafter (each, a “Renewal Term”), unless at least sixty days before a Renewal Term, either party notifies the other party that these Terms shall not renew or Customer fails to pay the then-current license fee for such Renewal Term. These Terms shall also be extended while any Statement of Work remains in force. If contract is not extended, Artisight will cease to provide Services for the Software.
b. Termination for Breach. If either party materially breaches, defaults, or fails to comply with any term or provision of these Terms, and such party fails to cure the same within such thirty (30) days after the giving of notice by the other party specifying such breach, default, or failure, the non-breaching party shall have the right to terminate these Terms effective upon further notice to the breaching party.
c. Termination for Insolvency. Either party may terminate these Terms if the other party is adjudged insolvent or bankrupt; is the subject of a bankruptcy petition or other proceedings by or against the other party seeking relief, reorganization, or arrangement under the laws relating to insolvency, or upon the other party’s liquidation, dissolution, or winding up of its business, whether voluntarily or not.
d. Effect of Termination. The provisions of Sections 3, 8, 9, 10, 11, 12(b)-(d), 13(d), 14, and 15 shall survive the expiration or termination of these Terms.
14. Notices. All notices and communications required or permitted under these Terms shall be in writing and sent to the postal address, e-mail address, or facsimile set forth on the signature pages hereto (which may be changed by a party by notice to the other party). Notices via e-mail shall not be effective unless receipt is acknowledged by the other party via a return e-mail or return receipt. Notices shall be deemed to be given (a) on the date of service if served by e-mail or facsimile, (b) on the third business day after mailing if mailed by certified or registered mail, postage prepaid and properly addressed, or (c) on the immediately following business day if sent overnight by a nationally-known courier service.
15. Miscellaneous. These Terms, the Statements of Work, Change Orders (if any), and the documents incorporated by reference in this writing constitute the entire agreement and understanding between the parties and supersede all prior agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by an authorized representative of each party. The failure of a party at any time to require performance of any obligation of the other party shall not affect its right to enforce any provision of these Terms at a later time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach. Neither party may assign these Terms, delegate the duties hereunder, or subcontract for the performance of obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, no consent of Customer is necessary for Artisight to assign these Terms to a business succeeding to all or substantially all of the assets or business of Artisight whether by merger, consolidation, acquisition, or otherwise, or to the assigning party's parent company or other Affiliate. Subject to the foregoing provisions of this Section, these Terms shall be binding upon, and inure to the benefit of, the parties and their permitted successors or assigns. The unenforceability of any provision or provisions of these Terms shall not render unenforceable or impair its remainder. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, these Terms shall be deemed amended to delete or modify, as necessary, the offending provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties. The headings in these Terms are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of these Terms. These Terms may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon and all of which together shall constitute one and the same instrument. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be handwritten signatures. These Terms shall be governed by the internal laws of the State of California exclusive of its conflicts-of-law principles. All disputes relating to or arising out of these Terms shall be resolved in a state or federal court located in Santa Clara County, California, and the parties consent to the jurisdiction of such courts.
