Standard Support & End User License Agreement for Subscribers
This standard SEUL agreement (“Agreement”) is made and entered into by and between:
- CARING TECHNOLOGIES, INC. DBA Behavior Imaging Solutions (‘BIS’), an Idaho corporation with Headquarters at 106 N. 6th St., Suite 200, Boise, Idaho 83702; and
- End User Service Subscribers, Hereinafter, BIS and client may be referred to individually as “Party” and, together, as the “Parties.”
- client wishes to engage BIS to provide on demand software management and related customer services (the “Services”) to client and client’s customers on the terms set forth herein.
- BIS wishes to provide the Services to client and client’s customers on the terms set forth herein.
Now, therefore, in consideration of the foregoing recitals and the terms and conditions set forth below, the Parties hereto, intending to be legally bound, agree as follows:
- Scope of Support. BIS will provide to client, and client will purchase from BIS, the Software as a Service with any customization according to contract agreement. BIS may provide additional services to client on terms mutually agreeable to the Parties.
- 2. Personnel from BIS will be trained to perform the Services.
- Service Reporting. The reporting requirements applicable to the provision of Services by BIS are provided as outlined in any contract agreement.
- Pricing. client will compensate BIS for providing the Services in accordance with the pricing terms and component rates set forth by contract agreement or invoice. Any additional services will be required through a contract addendum and billed accordingly.
- Terms and Conditions of Payment. BIS will prepare and render an annual invoicing and reconciliation of the costs of the provision of Services provided herein that details the activity of each underlying element of cost. Such invoices will be prepared according to the activation date defined in contract agreements or invoices, and re-occur annually on the anniversary of the activation date. client will pay all costs within thirty (30) calendar days following the date of receipt of invoice. Only invoices in dispute, where the amount of the dispute is more than five percent (5%) of the gross amount of the invoice, may be withheld. Restrictive endorsements or other statements on checks accepted by BIS will not apply. client will reimburse BIS for reasonable fees of attorneys and any other costs associated with the collection of delinquent undisputed payments. If client fails to pay any undisputed invoice within thirty (30) days of the due date of the invoice, then such undisputed invoice may be subject to a late charge equal to the greater of one percent (1.0%) per month or the maximum rate permitted by law from the due date until such amount is paid. client agrees that the prompt payment of undisputed amounts due is a material term of this Agreement. BIS may, without breach, immediately suspend any provision of Services in the event payment for any undisputed amount of any invoice is past due and for which client has been given ten (10) days written notice and payment in full has not been received by BIS.
- client Responsibilities. client’s responsibilities, in addition to those specified herein, are provided in contract agreement.
- Term and Termination of Agreement. The initial term of this Agreement will be for a period of one (1) years, beginning on the Activation Date with not more than (1) annual renewals thereafter beginning on the anniversary of the Activation Date, unless one Party notifies the other in writing that they are terminating this Agreement not less than sixty (45) days in advance of an Activation Date anniversary for this Agreement. Upon expiration of any renewal terms, and under circumstances where neither Party has notified the other of its intention to terminate this Agreement, this Agreement will continue on an annual basis and may be terminated by either Party upon thirty (30) days’ written notice to the other. During any such annual term, BIS will provide the Services to client at the prices set forth on the Fee Schedule for a period of twelve (12) months. Thereafter, in the event that this Agreement continues on an annual basis, BIS may increase its fees for such Services at its then current rates therefor.
This Agreement may be terminated for bankruptcy of either Party, failure of client to remit any undisputed payment when due, and failure of either Party to cure a material breach clearly defined in a written notice by the non-breaching Party within sixty (60) days from the date of receipt of the notice.
This Agreement may be terminated by client immediately upon written notice to BIS in the event that performance by either Party of any term, covenant, condition or provision of this Agreement shall (a) jeopardize client’s participation in Medicare, Medi-Cal or other reimbursement or payment programs, its full accreditation by the Joint Commission of Healthcare Organizations (or any other state or nationally recognized accreditation organization), its tax-exempt status, or (b) be in violation of any statute, law or ordinance or otherwise be deemed illegal or unethical by any recognized body.
In the event of termination by either Party for any allowed reason, BIS will, subject to receipt of payment of all undisputed charges through to and including termination, return to client, and client will accept, all property of client that BIS may hold.
- Disclaimer of Warranties. BIS does not represent or warrant that the services will resolve any or all questions, requests, errors, malfunctions, or defects presented by client or any end user or customer of client. BIS does not represent or warrant that the services it provides hereunder may be interpreted in any manner to be the provision of the practice of medicine. all services are provided “as is” with no other representations or warranties, express or implied. except as otherwise expressly set forth in this agreement, BIS expressly disclaims any and all representations and warranties, whether express, implied, or statutory including, but not limited to, any warranty of merchantibility or fitness for a particular purpose.
BIS represents that the clinical content provided hereunder, as applicable, is based on content provided by third party providers that periodically review the content themselves and with third-party clinicians. such clinical content is based on generally accepted practices; however, clinical content is constantly changing and no clinical support tool can stay abreast of advances in the field of medicine. client agrees that it will review the clinical content to assure that it meets community standards of care and may, at the client’s sole discretion, request modifications of the clinical content to reflect its understanding of best practices and community standards.
- Consequential Damages. neither BIS nor client shall be liable to each other or to any third party, end user, or other customer of client, for any indirect, incidental, special, consequential, punitive, or other damages, including, but not limited to, loss of profits, revenues, or business; loss of data; loss of software; and business interruption, resulting from, or in any way related to, this agreement or the termination or non-renewal of this agreement, or arising out of, or alleged to have arisen out of, any breach of this agreement, regardless of whether such party shall be advised, shall have other reason to know, or, in fact, shall know of the possibility of such damages. the limitation of liability set forth in this section shall apply regardless of whether such damages are sought based on breach of warranty, breach of contract, negligence, strict liability in tort, or other legal theory. the parties agree that this limitation of consequential damages is an essential and integral element of the bargain between the parties without which the parties would not have entered into this agreement.
- Limitation of Liability. In the event of any liability of BIS arising from this Agreement or the Services provided hereunder, BIS’s annual liability shall be limited to proven direct damages not to exceed, in the aggregate, the total amount of fees paid by client to BIS under this Agreement during the two (2) calendar months immediately preceding the month in which the event, or first occurrence of any cause of action giving rise to such liability as agreed or otherwise adjudicated, occurred. This limitation of liability is cumulative for each year this Agreement is in place and not per occurrence. The Parties acknowledge that the limitations of liability in this section and in the other provisions of this Agreement, and the allocation of risk herein, are an essential element of the bargain between the Parties, without which BIS would not have entered into this Agreement. BIS’s pricing and terms reflect this allocation of risk and the limitations of liability specified herein. Notwithstanding the foregoing, however, the Parties acknowledge and agree that such limitation of liability shall not apply to BIS’s obligations under Section 12 hereof.
- Indemnification. Each Party (hereinafter, the “Indemnitor”) agrees to defend and indemnify the other Party, and the other Party’s directors, officers, employees, members, agents and representatives (hereinafter, the “Indemnitee”) and hold the Indemnitee harmless against any direct loss, damage, judgment, settlement, liability, cost, and expense with respect to this Agreement, including reasonable court costs and fees of attorneys (collectively, “Losses”), to the extent such Losses are the direct result of (a) gross negligence or willful misconduct of the Indemnitor or its directors, officers, employees, members, agents and/or representatives (collectively, “Indemnitor Parties”), (b) the dishonest, fraudulent, criminal, or civil acts of the Indemnitor Parties acting alone or in collusion with others, or (c) the material breach of any provision of this Agreement not subject to cure.
The Indemnitee shall give prompt written notice to the Indemnitor of any claim, action, cause of action, litigation or proceeding to which the foregoing indemnity may apply (collectively, “Claim”), and the Indemnitor shall have the right to take over the defense of any such Claim at its sole expense. Indemnitee shall not settle or compromise any Claim without the prior written consent of the Indemnitor, unless suit shall have been instituted against the Indemnitee and the Indemnitor shall not have taken control of such suit as provided below.
The Indemnitor shall have the sole authority to defend or settle Claims at its sole cost and expense, and shall assume the defense of such Claims using counsel of its choice (subject to the approval of the Indemnitee, not to be unreasonably withheld, conditioned or delayed); provided, however, that if the Indemnitor’s counsel has an actual conflict of interest in representing both the Indemnitor and the Indemnitee in such Claim, then the Indemnitee shall have the right to engage separate counsel, the reasonable costs and expenses of which shall be paid by the Indemnitor (but in no event shall the Indemnitor be liable to pay for more than one such separate counsel). If the Indemnitor, after being given all information in the Indemnitee’s reasonable control concerning the Claim, and despite the Indemnitee’s willingness to reasonably cooperate and assist the Indemnitor with the defense of the Claim, does not assume defense of the Claim, then the Indemnitee may defend against such Claim, after giving notice to the Indemnitor, on such terms as the Indemnitee may deem appropriate, and the Indemnitor shall be entitled to participate (but not control) the defense of such Claim. If the Indemnitor thereafter seeks to question the manner in which the Indemnitee defended such Claim, then the Indemnitor shall have the burden to prove by a preponderance of the evidence that the Indemnitee did not defend or settle the Claim in a reasonably prudent manner.
notwithstanding anything contained in the foregoing, BIS shall not be obligated to indemnify client for any loss or damage arising from BIS’s solicitation efforts on behalf of client nor the use of any products or services of client by any persons, or, to the extent such loss or damage may be caused by the gross negligence or willful misconduct of client, or its employees, agents, vendors, subcontractors, or independent contractors (other than BIS).
client shall indemnify and hold BIS harmless for, from, and against, any claims, damages, costs, or expenses arising from or related to any and all changes made at the request of client to the clinical content.
The obligations of this section shall survive termination of this Agreement, including, but not limited to, this section until the expiration of the applicable statute of limitations applicable to any Claims.
- Intellectual Property Rights. client grants BIS the non-exclusive and non-transferable right to use client’s trademarks and similar property, including images and logos, on any materials used in conjunction with its Services under this Agreement on behalf of client services. BIS will provide client with views, proofs, illustrations, narrative, or other acceptable review materials for such uses prior to any use thereof, and client will have the right to approve, in its sole and absolute discretion, such uses of its trademarks and similar property.
In performing its obligations under this Agreement, BIS may develop, create, modify, and improve scripts, templates, web pages, ideas, and other creative works on BIS’s platforms based on client’s feedback and or feature requests. BIS retains ownership of such works (along with any deliverables to be provided as part of the Services hereunder) as BIS intellectual property. BIS may use such ip in support of other customers without client’s express, prior written consent, except that client agrees that nothing herein shall preclude BIS from using similar functional modifications, ideas, or processes for other customers of BIS.
Upon any termination or expiration of this Agreement, BIS agrees to deliver to client, upon client’s written request, any and all drawings, notes, memoranda, specifications, documents, appropriate computer readable media, together with all copies thereof, and any other material used for client services.
client agrees that all computer software owned or developed by BIS in connection with this Agreement (that does not incorporate, or which may be modified not to incorporate, client’s own intellectual property) is and shall remain the confidential property of BIS. All data pertaining to the customers and products of client shall be deemed the confidential property of client.
- Confidentiality. The Parties acknowledge and agree that confidential information of each Party may be disclosed to the other Party in connection with the performance of this Agreement. “Confidential Information” shall mean information not generally known to the public, including, but not limited to, software, inventions, trade secret information about processes, products, research and development, manufacture, purchasing, accounting, engineering, marketing, merchandising, selling, servicing, financing, telemarketing, business systems and processes, and operations, as well as information concerning the contents of this Agreement, the identities of customers, all customer lists, and the sales and shipments made to such customers; provided, however, that subject to the provisions of Section 16 hereof, nothing contained in this Agreement shall be construed to prevent either Party from referring to its relationship with the other under this Agreement or the description of services provided hereunder in a generic and otherwise descriptive form.
Each Party agrees that it will use the other Party’s Confidential Information only for the purposes of performance under this Agreement, and that it will not disclose any of the other Party’s Confidential Information during the term of this Agreement and thereafter without the advance written consent of the other Party. In the event the receiving Party is served with a subpoena or other process requiring the disclosure of any of the other Party’s Confidential Information, such receiving Party shall promptly notify the other Party of such request and reasonably cooperate with the efforts of the other Party to seek a protective order or other relief at the sole expense of the other Party.
Upon termination of this Agreement, all Confidential Information received by a Party hereunder shall be returned to the disclosing Party, or, if otherwise requested in writing, destroyed. The confidentiality obligations contained herein shall survive the termination of this Agreement for a period of three (3) years except with respect to client patient information for which the confidentiality obligations shall be permanent.
Confidential Information shall not be deemed to include any information that is or becomes publicly known through no wrongful act of the receiving Party, is or becomes known to the receiving Party prior to the date of this Agreement as shown by the Party’s written records without any other obligation to keep such information confidential, is received by a Party from a third party that has a lawful right to disclose it to such Party, or is used or disclosed by a Party with the prior written approval of the other Party.
Each Party shall inform its employees, agents, subcontractors, and independent contractors, if any, who have access to the other Party’s Confidential Information, of the foregoing confidentiality obligations and shall use all reasonable means as it shall normally use in its business operations to assure that such employees, agents, subcontractors, and independent contractors comply with such obligations.
Without limiting its obligations above, BIS agrees to respect and maintain (and shall cause all its employees and agents to respect and maintain) the confidentiality of all Protected Health Information (as defined in the Health Insurance Portability and Accountability Act of 1996, Public Law No. 104-191, and the regulations promulgated thereunder, as amended from time to time (collectively, “hipaa”) concerning all patients of client. In furtherance of the Parties’ intent to comply with applicable state and federal laws and regulations concerning confidential patient health information including, without limitation, hipaa, BIS agrees to comply with client’s Business Associate Protected Health Information Disclosure Addendum (the “Addendum”) attached hereto as and incorporated herein by this reference. The terms and conditions set forth in the Addendum shall survive the term of this Agreement. The Parties acknowledge that compliance with the provisions of the Addendum is material and a condition precedent to the effectiveness of this Agreement. Any failure by the Parties to comply with the Addendum shall render this Agreement immediately void and unenforceable ab initio.
- Publicity. Except as provided at Sections 13 and 14, and herein, neither Party shall make any written use of or reference to the other Party’s name, trade names, fictitious business names, trademarks, service marks or logos for any marketing, public relations, advertising, display or other business purpose or make any use of the other Party’s facilities for any activity unrelated to the express business purposes and interests of the other Party under this Agreement, without the other Party’s prior written consent. In the case of client’s written consent, such consent may be granted or withheld in client’s sole and absolute discretion. Subject to client’s prior approval, which approval will not be unreasonably withheld, BIS may (in person, on BIS’s web site, or in marketing materials and sales proposals) indicate to other potential or existing clients of BIS that client is a client of BIS and generically describe the nature of services provided to client, and may use client as a reference of BIS. It shall not be unreasonable for client to withhold its approval under the immediately preceding sentence if BIS’s web site, marketing materials and/or sales proposals (a) utilize client’s name or logos in a manner different or dissimilar from the names or logos of BIS’s other clients or customers (whether through the use of font styles or sizes, color or italicized, bold or underlined type) so as to unduly call attention to such name or logos, or (b) indicate, state or imply that client endorses any of the Services.
The Parties hereby agree that the remedy at law for the breach of any provision of Sections 13, 14 and 16 hereof may be inadequate and that each Party may be entitled to injunctive relief or specific performance without bond, in addition to any other rights and remedies to which such Party may have for any such breach. Each Party agrees that its obligations, covenants and agreements and the rights of the other Party as set forth in Sections 13, 14 and 16 hereof shall survive any termination or earlier expiration of this Agreement.
- Taxes. All charges payable under this Agreement are exclusive of taxes and duties. client shall pay or reimburse BIS for all value-added, sales, use, and similar taxes; all license fees and similar charges; and all other mandatory payments to government agencies of whatever kind imposed with respect to products and services contemplated or delivered pursuant to this Agreement. If a transaction is exempt from tax, client shall provide BIS with a valid exemption certificate or other evidence of such exemption in a form acceptable to BIS. Each Party hereto shall be solely responsible for all property and income taxes as may be properly charged or levied upon each Party’s respective property or income.
- Notices. Any notices required or permitted under this Agreement shall be deemed given upon either proven receipt or five (5) business days after its deposit with the U.S. Postal Service as certified mail, return receipt requested, postage prepaid; the next day for overnight courier service with written acknowledgment of receipt; or the day of facsimile transmission with written acknowledgment of receipt. All notices shall be addressed as follows, or as subsequently updated in writing to the other Party:
If to BIS:
Behavior Imaging Solutions
Attn: Chairman/CEO and Corporate Secretary
106 N. 6th St., Suite 200
Boise, Idaho 83702
If to client:
Client named party noted on Invoices
- Force Majeure. Either Party shall be excused from delays in performing or failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such Party, including, but not limited to, any act of God or public enemy, any act of terrorism, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other similar event, disruption or outage of communications, power or other utility, labor problems or strikes, and any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented through the use of reasonable care or which was not reasonably foreseeable by the affected Party. Each Party will use reasonable efforts to resolve promptly any type of excusable delay. In the event that the delay cannot be resolved within sixty (60) days, then either Party may terminate this Agreement by providing written notice to the other Party.
- Claims. As a condition precedent to recovery, Claims for Losses suffered by client must be made in writing within thirty (30) days after Losses are incurred or otherwise discovered by client. Claims for Losses shall be paid or denied by BIS within one (1) month after receipt of notice of such Claim.
- Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned by either Party without the other Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, except that (i) either Party may assign this Agreement to a commonly controlled affiliate for valid business purposes with notice, but without consent, and (ii) client may assign its rights under this Agreement in connection with any of its bond financing transactions. Such assignment, however, shall not operate to relieve either Party of its responsibilities under this Agreement.
- Liability and Other Insurance. Each Party agrees to obtain and maintain at all times throughout the term of this Agreement policies of insurance with a licensed insurance carrier rated a or better in Best‘s Insurance Report, or self-insurance, providing coverage for Comprehensive General Liability Insurance (including personal injury, bodily injury, property damage, owners and contractors protective liability, products liability and completed operations and contractual liability coverage) with limits of not less than One Million Dollars ($1,000,000) per occurrence, exclusive of defense costs, and Two Million Dollars ($2,000,000) in the annual aggregate. In addition, BIS agrees to obtain and maintain at all times throughout the term of this Agreement Workers’ Compensation coverage for all of its employees in such amount and form as required by the laws of the State of Idaho. Should any client Indemnitee be required to expend any monies as a result of Claims brought by any of BIS’s employees, BIS agrees to reimburse and/or indemnify such client Indemnitee for such amounts.
- All of the foregoing insurance obtained and maintained by BIS hereunder shall name client and its officers, directors and employees as additional insureds and shall include thirty (30) days’ advance written notice to client prior to the cancellation of or material reduction in coverage of such insurance. The insurance provided by BIS shall be primary to any coverage available to client. Prior to the Activation Date, BIS shall cause to be issued and client shall have received a certificate of insurance issued by the appropriate insurance company evidencing BIS’s insurance coverage in accordance with the provisions of this Section 23. The provisions of the indemnification section (Section 12 and this insurance section (Section 23) shall also be acknowledged by an endorsement to the insurance policy or policies issued to BIS and a copy of said endorsement or endorsements shall be attached to any certificate of insurance issued to client.
- The certificate of insurance and endorsement (and any renewal or replacement thereof) shall be sent to client who shall promptly forward the certificate of insurance/endorsement to client’s Risk Management Department, along with a cover sheet identifying (a) the name of this Agreement, (b) the Parties to this Agreement, (c) contact names and telephone numbers for each Party, (d) the officer of client who is approving this Agreement, (e) the type of Services being provided by BIS pursuant to this Agreement, and (f) the term of this Agreement and the expiration date hereof (such cover sheet being available from client’s Department of Risk Management)
- Arbitration. Both Parties agree that any action under this Agreement shall be submitted to arbitration administered by the American Arbitration Association (“aaa”) before a sole arbitrator in accordance with aaa’s then-existing Commercial Arbitration Rules; provided, however, that the Parties may elect at the time any arbitration hereunder is commenced not to have the arbitration administered by aaa notwithstanding any provision in the aaa’s rules to the contrary. The arbitrability of any such dispute or action shall likewise be determined in such arbitration. The arbitrator shall be selected from a list of approved arbitrators for disputes of the type presented. The site of any arbitration shall be Boise, Idaho. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- The arbitrator will render a decision based on the facts at hand and terms of this Agreement. The prevailing Party will be awarded its reasonable fees and disbursements of attorneys and other costs incurred in connection with the arbitration, including but not limited to taxable costs. The proceedings will be confidential and will not be discussed by the Parties or arbitrator with third parties, with the exception of attorneys, consultants, and others engaged to assist the Parties in the arbitration. All documents and other evidence exchanged in the arbitration and any copies thereof will be returned by the arbitrator and the other Party to the Party producing such documents or evidence promptly after the conclusion of any arbitration by award, stipulation, or continuance.
- Compliance with Law. Each Party shall, in the performance of this Agreement, fully comply with all applicable federal, state, and local laws, ordinances, rules, and regulations. Without limiting the generality of the foregoing, BIS acknowledges that client maintains a compliance program and that a copy of the compliance program has been made available to BIS for review. By executing this Agreement, BIS represents and warrants that neither BIS nor any of its employees, managers or agents: (a) has, in the past ten (10) years, been debarred excluded or otherwise made ineligible by any Federal government agency from participating in Federally reimbursed health care programs, (ii) has, in the past ten (10) years, been sanctioned or convicted by any Federal governmental agency, or (iii) is listed in any Federal governmental agency’s list of sanctioned, debarred, excluded or ineligible contracts. BIS hereby covenants that it will notify client within two (2) business days of any conviction, citation, judgment or settlement affecting any of the representations and warranties set forth in this Section 25. BIS agrees that any debarment, exclusion, ineligibility sanction or listing as described in items (i), (ii) or (iii) above is grounds for immediate termination of this Agreement by client.
- Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Idaho, USA, as is applied to contracts negotiated, executed, delivered, and performed solely within such jurisdiction. Except for matters involving breach of confidentiality by Licensee or misappropriation of BIS Intellectual Property Rights by Licensee, which may be brought in any court of competent jurisdiction, any claims, controversies, demands, disputes or differences among the parties arising out of or in connection with this Agreement shall be finally settled by binding arbitration, as defined in section 24.
- Severability. In the event any provision of this Agreement is found to be unenforceable, void, invalid, or unreasonable in scope, such provision shall be modified to the extent necessary to make it enforceable, and, as so modified, this Agreement shall remain in full force and effect.
- Waiver. Failure by either Party to exercise any right under this Agreement shall not be construed as a waiver of such right.
- Headings. Section headings are for convenience only and do not modify or affect the meaning of any provision herein nor be the basis for interpretation or construction of this Agreement.
- Entire Agreement. This Agreement, including the contract agreement or invoice attached hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous arrangements relating thereto, whether oral or written, between the Parties. Should a conflict between this Agreement and a contract exist, the contract shall govern. No modification or addition to this Agreement shall be valid unless in writing and signed by a duly authorized officer of each Party.