NETMINDER TERMS AND CONDITIONS FOR FLORIDA BROKER DATABASE
DEFINITIONS
1. Data, as referenced to and defined by this Agreement, shall include demographic information about healthcare providers and their participation in healthcare networks.
2. Software, as referenced to and defined by this Agreement, shall include the web-based, hosted application that the Licensor developed and offers to analyze and report on the Data.
3. User, as referenced to and defined by this Agreement, is an employee or independent contractor of LICENSEE with a distinct user name and password assigned to such individual.
TERMS AND CONDITIONS
1. LICENSE.
In exchange for LICENSEE paying LICENSOR the license fee (“Licensee Fee”) as set forth below, and pursuant to the terms and conditions set forth in this Agreement, LICENSOR grants to LICENSEE a limited, non-exclusive, non-transferable and royalty-free license to access and use the Data (“Data License”) and the Software (“Software License”) during the Term (as defined below) of this Agreement. The Data License and the Software License are referred to collectively as the “License”.
The Data License allows for an unlimited number of distinct Users to access the Data, hosted on LICENSOR’S website, for the sole purpose of evaluating and marketing LICENSEE’S products. The Software License allows for an unlimited number of distinct Users to access and use the Software for the sole purpose of accessing the Data. Licensee may freely transfer a user name and password to another employee of LICENSEE so long as only one such employee uses the distinct user name and password in any calendar month.
2. TERM.
The initial term (“Initial Term”) of this Agreement shall commence on the Effective Date (the date initial payment is received) and continue for a period of 12 months (through the last day of the 12th month). The Initial Term shall be automatically renewed at the end of the Initial Term (such date, the “Renewal Date”) for successive periods of the same length as the Initial Term (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless LICENSEE fails to make payment by the last day of the Initial or any Renewal Term. LICENSOR reserves the right, at its sole discretion, to immediately suspend LICENSEE’S access to and use of the Data and Software or immediately terminate this Agreement and the License, without notice to LICENSEE, if LICENSEE fails to comply with any of the terms of this Agreement. Upon termination, LICENSEE shall cease accessing and using the Data and the Software.
3. ACCESS TO DATA AND DATA UPDATES.
LICENSOR shall provide LICENSEE with access to the Data (“Initial Data”), as more particularly described at http://broker.netminder.com/easy-affordable-reports/terms-and-conditions/initial-data, within 5 calendar days of the date this Agreement is signed by both parties and payment is received. LICENSOR shall provide LICENSEE with Data updates (“Data Updates”) on a semi-annual schedule (March and September).
4. LICENSE FEE.
The License Fee is $999 for 12 months of access to all Florida Data currently available in the Software and any Florida Data added to the Software during the Initial or any Renewal Term. LICENSOR reserves the right to adjust the Licensee Fee for any Renewal Term and any subsequent Renewal Terms provided LICENSOR provides LICENSEE with 45 days written notice prior to the commencement of the applicable Renewal Term.
There is a one-time Implementation Fee of $499 for the acquisition of additional state networks beyond those listed at http://broker.netminder.com/easy-affordable-reports/terms-and-conditions/inital-data.
5. PAYMENT TERMS.
All Licensee Fees are due upon receipt of invoice by LICENSEE. Provided LICENSOR has met its obligations with respect to the License, the expiration and/or earlier termination of this Agreement shall not effect Licensee’s obligation to pay any costs or fees for services or goods that were provided pursuant to this Agreement.
6. DATA AND SOFTWARE OWNERSHIP.
LICENSOR will retain all right, title, and interest in and to the Data and Software, including all copies and derivatives of the Data and Software, regardless of the media or form on or in which the Data and Software or other copies may exist, including copies which are made in violation of the terms of the License. LICENSOR is not selling any property rights in the Data and/or Software pursuant to this Agreement, and the License is not a sale of the Data and/or Software. If, during the Term, LICENSOR files for bankruptcy or ceases to do business in the ordinary course and is unable to provide LICENSEE with access to the Data and/or Software pursuant to the terms of this Agreement, LICENSOR shall provide LICENSEE with a copy of the then most current Data in a hard file format provided that LICENSEE is not in breach of the Agreement and provided LICENSEE has provided LICENSOR with prior written notice of its request for such Data.
7. INTELLECTUAL PROPERTY RIGHTS.
The Software includes proprietary information of LICENSOR and is protected by applicable copyright, trademark, patent laws and international treaties. Except as specifically stated in the License, the License does not grant LICENSEE any rights to any copyrights, trademarks, trade secrets, patents or any other intellectual property rights. LICENSEE may be held legally liable for any copyright infringement, trademark infringement, patent infringement or any other infringement of LICENSOR’s rights which is caused or encouraged, directly or indirectly, by LICENSEE’S failure to abide by the terms of the License.
8. RESTRICTIONS ON USE AND TRANSFER.
Without the express written consent of LICENSOR, LICENSEE shall not: (a) use the Data and/or Software in any way which violates the License, the terms of this Agreement or any applicable law; (b) copy, decompile, disassemble, duplicate, reverse engineer, adapt, modify, translate, or otherwise create derivative works based on the Data and/or Software, or any portion or copy thereof; or (c) assign, rent, lease, redistribute, sell, sublicense, pledge, encumber or otherwise transfer to any third party the Data, the Software, the License, this Agreement, any rights granted pursuant to the License or this Agreement, any accompanying materials, or any portion of any of the preceding. Notwithstanding the foregoing, LICENSEE may, without breaching the terms of this Agreement, 1) utilize the Data to generate marketing-related summaries, generalized comparisons and otherwise perform analyses of provider networks (collectively the “Summaries”) for its own benefit and 2) distribute such summaries, comparisons and analyses to current or prospective customers (including their brokers) in the normal course of marketing and selling LICENSEE’s products and services. LICENSEE shall include on all such Summaries a statement identifying LICENSOR as the source of the information, the date LICENSOR provided the information used in connection with the Summary, as well as the following language:
Data Source: NetMinder (http://broker.netminder.com). Data as of: [update date]. The Ignition Group makes no warranty regarding the performance of the data and the results that will be obtained by using the data.
9. SOFTWARE UPDATES.
From time to time, and at LICENSOR’s sole option, LICENSOR may create and make available patches, fixes, subsequent versions, upgrades, or support (collectively “Software Updates”) to the Software. Basic Software Updates (“Basic Software Updates”) will be made available to all Software licensees free of charge. At any time and pursuant to additional terms and conditions to be agreed upon between LICENSOR and LICENSEE and set forth on an addendum to this Agreement, LICENSEE may purchase customized and premium versions of the Software and Software Updates from LICENSOR for an additional fee. Except as specifically set forth in this Section 9, LICENSOR is under no obligation to provide LICENSEE with any Software Updates. The Software and any Software Updates are subject to change without notice to LICENSEE.
10. TROUBLE-SHOOTING.
During regular business hours which shall be from 8:30 AM to 8:30 PM Eastern Standard Time Monday through Friday, LICENSOR will provide customer service support to help LICENSEE resolve problems associated with accessing the Data and accessing and using the Software. Routine service inquiries by LICENSEE will be handled by LICENSOR via email with standard resolution within one (1) business day. Escalated service inquiries will be routed via phone to LICENSOR through a single point of contact within LICENSEE and will be resolved within four (4) business hours.
11. DISCLAIMER OF WARRANTIES.
TO THE EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE DATA AND SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR SPECIFICALLY DISCLAIMS AND MAKES NO WARRANTY, WHETHER EXPRESS OR IMPLIED, REGARDING THE DATA OR SOFTWARE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR ALSO SPECIFICALLY DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE DATA AND SOFTWARE. LICENSOR DOES NOT WARRANT THE RESULTS THAT WILL BE OBTAINED BY LICENSEE’S USE OF THE DATA OR SOFTWARE, THAT THE DATA OR SOFTWARE WILL MEET LICENSEE’S SPECIFIC REQUIREMENTS, THAT THE USE OF THE DATA OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE DATA OR SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE GIVEN BY LICENSOR OR AN AUTHORIZED REPRESENTATIVE OF LICENSOR SHALL CREATE A WARRANTY WITH RESPECT TO THE DATA OR SOFTWARE. LICENSEE UNDERSTANDS AND AGREES THAT LICENSEE’S USE OF THE DATA AND SOFTWARE IS AT LICENSEE’S OWN DISCRETION AND RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO THE EQUIPMENT, DATA AND SOFTWARE OF LICENSOR OR ANY THIRD PARTY.
SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
12. LIMITATION ON LIABILITY.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE LIABILITY OF LICENSOR, IF ANY, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER WITH RESPECT TO THE LICENSE, DELIVERY OR USE OF THE DATA OR SOFTWARE, OR WITH RESPECT TO THE DATA OR SOFTWARE, WHETHER BASED ON BREACH OF CONTRACT, NEGLIGENCE, INFRINGEMENT OF ANY THIRD PARTY RIGHTS, PRODUCT LIABILITY, INDEMNITY, SUBROGATION OR CONTRIBUTION, AND REGARDLESS OF THE LEGAL THEORY OR THE DELIVERY OR NON-DELIVERY OF THE DATA OR SOFTWARE, SHALL NOT BE GREATER THAN THE ACTUAL LICENSEE FEE PAID TO LICENSOR BY LICENSEE FOR THE DATA OR SOFTWARE WITH RESPECT TO WHICH SUCH CLAIM IS MADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCE WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOOD WILL, COST OF SUBSTITUTE DATA OR SOFTWARE, COST OF CAPITAL, AND/OR THE CLAIMS OF LICENSEE OR ANY THIRD PARTY, OR FOR ANY OTHER REASON WHATSOEVER. LICENSOR ASSUMES NO RISK AND SHALL BE SUBJECT TO NO LIABILITY FOR DAMAGES OR LOSS RESULTING FROM THE SPECIFIC USE OR APPLICATION MADE OF THE DATA OR SOFTWARE.
13. INDEMNIFICATION.
Notwithstanding any provision in this Agreement to the contrary, LICENSOR agrees to indemnify, hold harmless, and defend LICENSEE from and against any claims or lawsuits, including reasonable attorneys’ fees and costs that arise out of or in connection with any third party claim that the Data or Software infringes such third parties intellectual property rights.
LICENSEE agrees to indemnify, hold harmless, and defend LICENSOR from and against any claims or lawsuits, including reasonable attorneys’ fees and costs, that arise out of or in connection with any: (i) use or misuse of the Data by LICENSEE; (ii) damage caused to any equipment, data or software of LICENSEE or any third party as a result of LICENSEE’s misuse of the Data or Software; and (iii) breach of the terms and conditions of the License or this Agreement.
14. CONFIDENTIALITY.
LICENSOR and LICENSEE agree that they shall, and they shall cause their respective principals, directors, managers, officers, employees, agents and representatives, to maintain the confidentiality of and not use any information or derivatives thereof (collectively, the “Confidential Information”) disclosed to the receiving party by the disclosing party and relating to: the Data, the Software, and all accompanying materials; business and financial records; clients and customers; vendors; products, pricing; intellectual property; source codes; object codes; technical knowledge; trade secrets; business and marketing plans; and the terms and conditions of this Agreement. Confidential Information shall not include information which: (i) is now or subsequently becomes generally available to the public through no fault or breach on the part of receiving party; (ii) receiving party can demonstrate as having in its lawful possession prior to disclosure by disclosing party; (iii) is independently developed by receiving party without the use of any Confidential Information; or (iv) receiving party lawfully obtains from a third party who has the right to transfer the information to receiving party and is not bound by a confidentiality agreement with disclosing party. Receiving party may disclose Confidential Information pursuant to a court order, provided receiving party provides the disclosing party with sufficient notice for the disclosing party to challenge the request for disclosure of such Confidential Information. Receiving party shall promptly notify disclosing party of any unauthorized use or disclosure of Confidential Information, and receiving party shall promptly take any and all reasonable efforts to prevent further unauthorized use or disclosure of the Confidential Information. All Confidential Information and derivatives thereof shall be and remain the exclusive property of disclosing party and no license or other rights to the same is granted or implied by this Agreement. Receiving party expressly agrees not to seek or obtain any intellectual property or other property rights with respect to the disclosing party’s Confidential Information.
15. SEVERABILITY.
If any provision of this Agreement is found to be illegal, invalid, or unenforceable, that provision shall not affect the validity or enforceability of this Agreement, and this Agreement shall then be construed in all respects as if such invalid or unenforceable provision were omitted.
16. GOVERNING LAW, VENUE AND JURISDICTION.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida (without giving effect to principles of conflicts of laws). The venue for any legal proceedings arising from or connected with this Agreement shall be exclusively in Miami-Dade County, Florida, and each party hereby waives the right to challenge venue based upon forum non conveniens or otherwise. The Parties expressly consent to the jurisdiction of the state and/or Federal courts in and/or for Miami-Dade County, Florida.
17. NOTICE.
All notices provided for in this Agreement shall be sent to the ad¬dresses provided above, or to such other address of a party as such party shall notify the other in writ¬ing, and delivered to an officer of such party by: (i) hand-delivery; (ii) mail via a recognized overnight carrier or by certified or registered mail, return receipt requested; (iii) facsimile with confirmation by mail or actual receipt confirmed; or (iv) any other electronic means with confirmation by mail or actual receipt confirmed. Notices will be deemed delivered and effective upon the earlier of: (i) actual receipt; or (ii) 3 days following sending via any of the means set forth in this section.
18. GENERAL.
All schedules and exhibits referred to and attached to this Agreement are hereby incorporated into and made a part of this Agreement by reference. This Agreement constitutes the entire agreement between the parties with respect to the access and use of the Data and the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of LICENSOR, and this Agreement shall be binding upon both parties successors and permitted assigns. In any action to enforce any rights set forth in the Agreement, the prevailing party shall be entitled to recover their attorneys’ fees and costs, at all levels of trial and appeal. The failure or delay of either party to exercise any of its rights under the Agreement shall not be deemed a waiver of those rights or the breach thereof. Any and all schedules and exhibits attached and referred to in this Agreement are hereby incorporated into this Agreement. Every payment provision and each provision set forth in sections 4-7 and 10-18 will survive the expiration and/or earlier termination of this Agreement. In the event either party is prevented from performing its obligations under this Agreement by circumstances beyond its control, except in the case of payment of monies due under this Agreement, including, without limitation, labor disputes, fires, explosions, floods, acts of God, war or other hostilities, civil commotion, breakdown of machinery, domestic or foreign governmental acts, orders or regulations and inability or difficulty in obtaining supplies, then the party so affected shall be excused from its performance under this Agreement so long as such condition endures. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each Party will act as an independent entity and not as an agent of the other Party for any purpose, and neither will have the authority to bind the other. LICENSEE hereby grants LICENSOR the right to use LICENSEE’s name in connection with LICENSOR’s advertising, marketing and promotional materials, provided LICENSEE provides LICENSOR with pre-approval of such use.