GENERAL TERMS AND CONDITIONS
FOR MEDSCALE PLUS SERVICES (“GTC”)
1. DEFINITIONS
Capitalized terms used in this document are defined in the Glossary.
2. USAGE RIGHTS AND RESTRICTIONS
2.1 Grant of Rights. MedScale Plus, LLC grants to Customer a non-exclusive, non-transferable and world-wide right to use the MedScale Plus Service (including its implementation and configuration), Cloud Materials and Documentation solely for Customer’s and its Affiliates’ internal business operations. Permitted uses and restrictions of the MedScale Plus Service also apply to Cloud Materials and Documentation.
2.2 Authorized Users.
Customer may permit Authorized Users to use the MedScale Plus Service. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Access credentials for the MedScale Plus Software and Service may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the MedScale Plus Service. Customer is responsible for breaches of the Agreement caused by Authorized Users.
2.3 Acceptable Use Policy.
With respect to the MedScale Plus Service, Customer will not:
(a) disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
(b) transmit any content or data that is unlawful or infringes any intellectual property rights, or
(c) circumvent or endanger its operation or security.
2.4 Verification of Use.
Customer will monitor its own use of the MedScale Plus Service and report any use in excess of the Usage Metrics and volume. MedScale Plus, LLC may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
2.5 Suspension of MedScale Plus Service.
MedScale Plus, LLC may suspend use of the MedScale Plus Service if continued use may result in material harm to the MedScale Plus Service or its users. MedScale Plus, LLC will promptly notify Customer of the suspension. MedScale Plus, LLC will limit the suspension in time and scope as reasonably possible under the circumstances.
2.6 Third Party Web Services.
The MedScale Plus Service may include integrations with web services made available by third parties (other than MedScale Plus, LLC or its Affiliates) that are accessed through the MedScale Plus Service and subject to terms and conditions with those third parties. These third-party web services are not part of the MedScale Plus Service and the Agreement does not apply to them.
2.7 Mobile Access to MedScale Plus Service.
Authorized Users may access certain MedScale Plus Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
3. MedScale Plus, LLC RESPONSIBILITIES
3.1 Provisioning.
MedScale Plus, LLC provides access to the MedScale Plus Service as described in the Agreement.
3.2 Support.
MedScale Plus, LLC provides support for the MedScale Plus Service as referenced in the Order Form.
3.3 Security.
MedScale Plus, LLC uses reasonable security technologies in providing the MedScale Plus Service. As a data processor, MedScale Plus, LLC will implement technical and organizational measures referenced in the Order Form to secure personal data processed in the MedScale Plus Service in accordance with applicable data protection law.
3.4 Modifications.
(a) The MedScale Plus Service and MedScale Plus, LLC Policies may be modified by MedScale Plus, LLC. MedScale Plus, LLC will inform Customer of modifications by email, the support portal, release notes, Documentation or the MedScale Plus Service. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the MedScale Plus Service, which Customer may use subject to the then-current Supplement and Documentation.
(b) If Customer establishes that a modification is not solely an enhancement and materially reduces the MedScale Plus Service, Customer may terminate its subscriptions to the affected MedScale Plus Service by providing written notice to MedScale Plus, LLC within thirty days after receipt of MedScale Plus, LLC’s informational notice.
3.5 Analyses.
MedScale Plus, LLC, or MedScale Plus, LLC Affiliates may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the MedScale Plus Service and Consulting Services. Analyses will anonymize and aggregate information, and will be treated as Cloud Materials. Examples of how analyses may be used include: optimizing resources and support; research and development; automated processes that enable continuous improvement, performance optimization and development of new MedScale Plus, LLC products and services; verification of security and data integrity; internal demand planning; and data products such as industry trends and developments, indices and anonymous benchmarking.
4. CUSTOMER AND PERSONAL DATA
4.1 Customer Data.
Customer is responsible for the Customer Data and entering it into the MedScale Plus Service. Customer grants to MedScale Plus, LLC (including MedScale Plus Holdings LLC, its Affiliates and subcontractors) a nonexclusive right to process Customer Data solely to provide and support the MedScale Plus Service.
4.2 Personal Data.
Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
4.3 Security.
Customer will maintain reasonable security standards for its Authorized Users’ use of the MedScale Plus Service.
4.4 Access to Customer Data.
(a) During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case MedScale Plus, LLC and Customer will find a reasonable method to allow Customer access to Customer Data.
(b) Before the Subscription Term expires, Customer may use MedScale Plus, LLC’s self-service export tools (as available) to perform a final export of Customer Data from the MedScale Plus Service.
(c) At the end of the Agreement, MedScale Plus, LLC will delete the Customer Data remaining on servers hosting the MedScale Plus Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
(d) In the event of third party legal proceedings relating to the Customer Data, MedScale Plus, LLC will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.
4.5 Insights from Customer Data.
(a) The customer agrees that MedScale Plus may from time to time derive insights from the customer data processed in its service. These insights along with the de-identified source data used to create these insights is the property of MedScale Plus and MedScale Plus has the right to on sell these insights to further the development of the service and its business.
5. FEES AND TAXES
5.1 Fees and Payment.
Customer will pay fees as stated in the Order Form. After prior written notice, MedScale Plus, LLC may suspend Customer’s use of the MedScale Plus Service until payment is made. Customer cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable and fees non-refundable.
5.2 Taxes.
Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account. Customer is responsible for all taxes, other than MedScale Plus, LLC’s income and payroll taxes. Customer must provide to MedScale Plus, LLC any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If MedScale Plus, LLC is required to pay taxes (other than its income and payroll taxes), Customer will reimburse MedScale Plus, LLC for those amounts and indemnify MedScale Plus, LLC for any taxes and related costs paid or payable by MedScale Plus, LLC attributable to those taxes.
6. TERM AND TERMINATION
6.1 Term.
The Subscription Term is as stated in the Order Form.
6.2 Termination.
A party may terminate the Agreement:
(a) upon thirty days’ written notice of the other party’s material breach unless the breach is cured during that thirty-day period,
(b) as permitted under Sections 3.4 (b), 7.3 (b), 7.4 (c), or 8.1 (c) (with termination effective thirty days after receipt of notice in each of these cases), or
(c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12.6.
6.3 Refund and Payments.
For termination by Customer or an 8.1 (c) termination, Customer will be entitled to:
(a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and
(b) a release from the obligation to pay fees due for periods after the effective date of termination.
6.4 Effect of Expiration or Termination.
Upon the effective date of expiration or termination of the Agreement:
(a) Customer’s right to use the MedScale Plus Service and all MedScale Plus, LLC Confidential Information will end,
(b) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and
(c) termination or expiration of the Agreement does not affect other agreements between the parties.
6.5 Survival.
Sections 1, 5, 6.3, 6.4, 6.5, 8, 9, 10, 11, and 12 will survive the expiration or termination of the Agreement.
7. WARRANTIES
7.1 Compliance with Law.
Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
(a) in the case of MedScale Plus, LLC, the operation of MedScale Plus, LLC’s business as it relates to the MedScale Plus Service, and (b) in the case of Customer, the Customer Data and Customer’s use of the MedScale Plus Service.
7.2 Good Industry Practices.
MedScale Plus, LLC warrants that it will provide the MedScale Plus Service:
(a) in substantial conformance with the Documentation; and
(b) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the MedScale Plus Service.
7.3 Remedy.
Customer’s sole and exclusive remedies and MedScale Plus, LLC’s entire liability for breach of the warranty under Section 7.2 will be:
(a) the re-performance of the deficient MedScale Plus Service, and
(b) if MedScale Plus, LLC fails to re-perform, Customer may terminate its subscription for the affected MedScale Plus Service. Any termination must occur within three months of MedScale Plus, LLC’s failure to re-perform.
7.4 System Availability.
(a) MedScale Plus, LLC warrants to maintain an average monthly system availability for the production system of the MedScale Plus Service as defined in the applicable service level agreement or Supplement (“SLA”).
(b) Customer’s sole and exclusive remedy for MedScale Plus, LLC’s breach of the SLA is the issuance of a credit in the amount described in the SLA. Customer will follow MedScale Plus, LLC’s posted credit claim procedure. When the validity of the service credit is confirmed by MedScale Plus, LLC in writing (email permitted), Customer may apply the credit to a future invoice for the MedScale Plus Service or request a refund for the amount of the credit if no future invoice is due.
(c) In the event MedScale Plus, LLC fails to meet the SLA (i) for four consecutive months, or (ii) for five or more months during any twelve months period, or (iii) at a system availability level of at least 95% for one calendar month, Customer may terminate its subscriptions for the affected MedScale Plus Service by providing MedScale Plus, LLC with written notice within thirty days after the failure.
7.5 Warranty Exclusions.
The warranties in Sections 7.2 and 7.4 will not apply if:
(a) the MedScale Plus Service is not used in accordance with the Agreement or Documentation,
(b) any non-conformity is caused by Customer, or by any product or service not provided by MedScale Plus, LLC, or
(c) the MedScale Plus Service was provided for no fee.
7.6 Disclaimer.
Except as expressly provided in the Agreement, neither MedScale Plus, LLC nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of MedScale Plus, LLC or product road maps in obtaining subscriptions for any MedScale Plus Service.
8. THIRD PARTY CLAIMS
8.1 Claims Brought Against Customer.
(a) MedScale Plus, LLC will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the MedScale Plus Service infringes or misappropriates a patent claim, copyright, or trade secret right. MedScale Plus, LLC will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement MedScale Plus, LLC enters into) with respect to these claims.
(b) MedScale Plus, LLC’s obligations under Section 8.1 will not apply if the claim results from (i) Customer’s breach of Section 2, (ii) use of the MedScale Plus Service in conjunction with any product or service not provided by MedScale Plus, LLC, or (iii) use of the MedScale Plus Service provided for no fee.
(c) In the event a claim is made or likely to be made, MedScale Plus, LLC may (i) procure for Customer the right to continue using the MedScale Plus Service under the terms of the Agreement, or (ii) replace or modify the MedScale Plus Service to be non-infringing without a material decrease in functionality. If these options are not reasonably available, MedScale Plus, LLC or Customer may terminate Customer’s subscription to the affected MedScale Plus Service upon written notice to the other.
8.2 Claims Brought Against MedScale Plus, LLC.
Customer will defend MedScale Plus, LLC against claims brought against MedScale Plus, LLC, MedScale Plus Holdings LLC, its Affiliates and subcontractors by any third party related to Customer Data.
Customer will indemnify MedScale Plus, LLC against all damages finally awarded against MedScale Plus, LLC, MedScale Plus Holdings LLC, its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
8.3 Third Party Claim Procedure.
(a) The party against whom a third-party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense.
(b) The party that is obligated to defend a claim will have the right to fully control the defense.
(c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
8.4 Exclusive Remedy.
The provisions of Section 8 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.
9. LIMITATION OF LIABILITY
9.1 Unlimited Liability.
Neither party will exclude or limit its liability for damages resulting from:
(a) the parties’ obligations under Section 8.1 (a) and 8.2,
(b) unauthorized use or disclosure of Confidential Information,
(c) either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of personal data,
(d) death or bodily injury arising from either party’s gross negligence or willful misconduct, or (e) any failure by Customer to pay any fees due under the Agreement.
9.2 Liability Cap.
Subject to Sections 9.1 and 9.3, the maximum aggregate liability of either party (or its respective Affiliates or MedScale Plus, LLC’s subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable MedScale Plus Service directly causing the damage for that twelve month period. Any “twelve month period” commences on the Subscription Term start date or any of its yearly anniversaries.
9.3 Exclusion of Damages.
Subject to Section 9.1:
(a) neither party (nor its respective Affiliates or MedScale Plus, LLC’s subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages, and
(b) MedScale Plus, LLC will not be liable for any damages caused by any MedScale Plus Service provided for no fee.
9.4 Risk Allocation.
The Agreement allocates the risks between MedScale Plus, LLC and Customer. The fees for the MedScale Plus Service and Consulting Services reflect this allocation of risk and limitations of liability.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 MedScale Plus, LLC Ownership.
MedScale Plus, LLC, MedScale Plus Holdings LLC, their Affiliates or licensors own all intellectual property rights in and related to the MedScale Plus Service, Cloud Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to MedScale Plus, LLC, MedScale Plus Holdings LLC and its licensors.
10.2 Customer Ownership.
Customer retains all rights in and related to the Customer Data except as provided in clause 4.5. MedScale Plus, LLC may use Customer-provided trademarks solely to provide and support the MedScale Plus Service.
10.3 Non-Assertion of Rights.
Customer covenants, on behalf of itself and its successors and assigns, not to assert against MedScale Plus, LLC, MedScale Plus Holdings LLC, their Affiliates or licensors, any rights, or any claims of any rights, in any MedScale Plus Service, Cloud Materials, Documentation, or Consulting Services.
11. CONFIDENTIALITY
11.1 Use of Confidential Information.
(a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11. Customer will not disclose the Agreement or the pricing to any third party.
(b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.
(c) In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.
11.2 Exceptions.
The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
(a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
(b) is generally available to the public without breach of the Agreement by the receiving party,
(c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or
(d) the disclosing party agrees in writing is free of confidentiality restrictions.
11.3 Publicity.
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that MedScale Plus, LLC may use Customer’s name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of MedScale Plus, LLC’s marketing efforts (including reference calls and stories, press testimonials, site visits, MedScale Plus Holdings LLC participation). Customer agrees that MedScale Plus, LLC may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with MedScale Plus, LLC.
12. MISCELLANEOUS
12.1 Severability.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
12.2 No Waiver.
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
12.3 Electronic Signature.
Electronic signatures that comply with applicable law are deemed original signatures.
12.4 Regulatory Matters.
MedScale Plus, LLC Confidential Information is subject to export control laws of various countries, including the laws of the United States and the European Union. Customer will not submit MedScale Plus, LLC Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export MedScale Plus, LLC Confidential Information to countries, persons or entities if prohibited by export laws.
12. 5 Notices.
All notices will be in writing and given when delivered to the address set forth in an Order Form with copy to the legal department. Notices by MedScale Plus, LLC relating to the operation or support of the MedScale Plus Service and those under Sections 3.4 and 5.1 may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Order Form.
12.6 Assignment.
Without MedScale Plus, LLC’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. MedScale Plus, LLC may assign the Agreement to MedScale Plus, LLC SE or any of its Affiliates.
12.7 Subcontracting.
MedScale Plus, LLC may subcontract parts of the MedScale Plus Service or Consulting Services to third parties. MedScale Plus, LLC is responsible for breaches of the Agreement caused by its subcontractors.
12.8 Relationship of the Parties.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
12.9 Force Majeure.
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
12.10 Governing Law.
The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of the state of New York, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in New York, New York. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
12.11 Entire Agreement.
The Agreement constitutes the complete and exclusive statement of the agreement between MedScale Plus, LLC and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if MedScale Plus, LLC accepts or does not otherwise reject the purchase order.
Glossary
1.1 “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
1.2 “Agreement” means an Order Form and documents incorporated into an Order Form.
1.3 “Authorized User” means any individual to whom Customer grants access authorization to use the MedScale Plus Service that is an employee, agent, contractor or representative of
(a) Customer,
(b) Customer’s Affiliates, and/or
(c) Customer’s and Customer’s Affiliates’ Business Partners.
1.4 “Business Partner” means a legal entity that requires use of a MedScale Plus Service in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.
1.5 “MedScale Plus Service” means any distinct, subscription-based, hosted, supported and operated on demand solution provided by MedScale Plus, LLC under an Order Form.
1.6 “Cloud Materials” mean any materials provided or developed by MedScale Plus, LLC (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer. Cloud Materials do not include the Customer Data, Customer Confidential Information or the MedScale Plus Service.
1.7 “Confidential Information” means
(a) with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information, and
(b) with respect to MedScale Plus, LLC: (i) the MedScale Plus Service, Documentation, Cloud Materials and analyses under Section 3.5, and (ii) information regarding MedScale Plus, LLC research and development, product offerings, pricing and availability.
(c) Confidential Information of either MedScale Plus, LLC or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
1.8 “Consulting Services” means professional services, such as implementation, configuration, custom development and training, performed by MedScale Plus, LLC’s employees or subcontractors as described in any Order Form and which are governed by the Supplement for Consulting Services or similar agreement.
1.9 “Customer Data” means any content, materials, data and information that Authorized Users enter into the production system of a MedScale Plus Service or that Customer derives from its use of and stores in the MedScale Plus Service (e.g. Customer-specific reports). Customer Data and its derivatives will not include MedScale Plus, LLC’s Confidential Information.
1.10 “Documentation” means MedScale Plus, LLC’s then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the MedScale Plus Service which is made available to Customer with the MedScale Plus Service.
1.11 “Order Form” means the ordering document for a MedScale Plus Service that references the GTC.
1.12 “MedScale Plus Holdings LLC” means MedScale Plus Holdings LLC, the parent company of MedScale Plus, LLC.
1.13 “MedScale Plus, LLC Policies” means the operational guidelines and policies applied by MedScale Plus, LLC to provide and support the MedScale Plus Service as incorporated in an Order Form.
1.14 “Subscription Term” means the term of a MedScale Plus Service subscription identified in the applicable Order Form, including all renewals.
1.15 “Supplement” means the supplemental terms and conditions that apply to the MedScale Plus Service and that are incorporated in an Order Form.
1.16 “Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for a MedScale Plus Service as set forth in an Order Form.