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1. Software Services. Subject to the terms of this Service Schedule, if Customer has purchased Software or Transaction Services, Company grants to Customer a license to use such Software or Transaction Services as more fully set forth herein. This Service Schedule is subject to the terms and conditions of the Agreement.
2. Definitions. For purposes of licenses to the Software and associated Fees, the following terms having the following meanings:
a. “Full-time Provider” means a Provider working 20 hours per week or more for Customer.
b. “Part-time Provider” means a Provider working less than 20 hours per week for Customer or a doctor in residency training.
3. Perpetual Software License. If Customer purchased a perpetual license for Company’s Software, such license shall be indicated on the Order Form and the following terms shall apply. The foregoing License does not apply to Transaction Services, the Patient Portal and any other software components that are only available to Customer as hosted services provided by Company.
a. License. Company hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license (a “Perpetual License”) for Customer to use and execute the object code version of the Software for Customer’s internal business operation in accordance with this Agreement, Company’s Acceptable Use Policy (available in the Company Legal Documents Resource Center on Company Support Center) and the Documentation. The Software may be used concurrently only by the number of Providers designated in the Order Form, and, where applicable, only on the number of workstations and only by the total number of Users as may be designated in the Order Form. Under no circumstances shall this Order Form be construed to grant any License to the United States Government or any governmental agency or political subdivision thereof; additional terms shall apply with respect to any such transaction. Customer may copy the applicable Software only as absolutely necessary for back-up purposes, but only consistent with prevailing practices for backup of application software similar to the Software. In no event shall the Software, or any copy thereof, be removed from the premises and facilities under the reasonable control of Customer, except for reasonable off-site storage backup copies and third party hosting of the Software. Customer agrees to keep an accurate accounting of all copies of the Software made and to provide Company with such accounting upon request. Customer agrees that Company or its designees may have access to Customer’s computer hardware and media, by direct or remote access, to verify Customer’s compliance with this Agreement. Under no circumstances shall this Agreement be construed to grant any License to the United States Government or any governmental agency or political subdivision thereof; additional terms shall apply with respect to any such transaction. Nothing in this Agreement shall be read to grant a license of any kind whatsoever with respect to any Company software that is not identified in the Order Form as subject to the perpetual license.
b. Warranty. Company warrants, for a period of ninety (90) days from the Delivery Date of the Software (the “Warranty Period”), that such Software (other than Third Party Items) shall perform substantially in accordance with the specifications for such Software set forth in the applicable Documentation, provided that Customer (1) properly installs the Software on systems that meet the applicable system configuration requirements set forth in the Documentation; (2) timely and properly installs all updates and enhancements to the Software provided by Company; (3) remains in continuous compliance with this Agreement (which includes, but is not limited to, continuing to timely pay all applicable Fees); and (4) timely complies with reasonable requests and instructions from Company related to the use and operation of the Company Software and Services (the “Warranty”). Customer shall give Company written notice of the claimed breach of Warranty no more than thirty (30) days after Customer becomes aware of any such alleged defect or item covered by the Warranty. If Company is unable within a reasonable period of time to correct or otherwise resolve any failure to comply with the Warranty, then Customer may terminate the Agreement without penalty. This is Customer’s sole and exclusive remedy for a breach of Warranty. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY TO THE EXTENT APPLICABLE FROM STATE/JURISDICTION TO STATE/JURISDICTION. “Delivery Date” shall mean the date on which (i) Customer received the physical delivery of the media containing the Software; or (ii) Customer received electronic delivery of the Software.
4. Subscription Software License. If Customer purchased a subscription license for Company’s Software, such license shall be indicated on the Order Form and the following terms shall apply. The foregoing License also applies to Transaction Services, the Patient Portal and any other Software components that are only available to Customer as hosted services provided by Company.
a. License. Company hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the web-based Software and Services for Customer’s internal business operation in accordance with this Agreement, Company’s Acceptable Use Policy (available in the Company Legal Documents Resource Center on Company Support Center) and the Documentation (the “Subscription License”). The Software and Services may be used concurrently only by the number of Providers and total number of Users designated in the Order Form. Under no circumstances shall this Order Form be construed to grant any License to the United States Government or any governmental agency or political subdivision thereof; additional terms shall apply with respect to any such transaction.
5. Use of Software to Perform Services for Third Party. Except as set forth herein, Customer shall not use the Software and Services to perform data processing functions for any other person, entity or business by acting as a service bureau, processing center or otherwise. Notwithstanding the foregoing, Customer may use the Software and Services to perform data processing functions for a third person, entity or business (“Third Party User”) provided that Customer a) obtains written consent from Company for such use, b) enters into a license agreement with the Third Party User containing the same or substantially similar provisions as this Agreement, and c) Customer remains jointly and severally liable to Company for the actions and omissions of such Third Party User. Customer may not use the Software or Services in connection with any business owned by any other party or provide access to the Software or Services to any other party.
6. Professional Services. If Customer purchased the Software and Services through or in connection with a Company authorized reseller, the reseller shall provide implementation services to Customer. If Customer purchased the Software and Services directly from Company without the use of an authorized reseller, Company shall provide professional implementation services in accordance with the Professional Services Schedule.
7. Support Services. If Customer has purchased the Software through or in connection with a Company authorized reseller, the reseller shall provide Software and Services support services to Customer. If Customer purchased the Software directly from Company without the use of an authorized reseller, Company shall provide to Customer the support services set forth in Support Services Schedule.
8. Protection of Customer Content. Unless Customer has purchased the Hosting Solution from Company, Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Customer Content and conducting appropriate data backups. Customer is advised that Company is not an insurer and is in no way responsible for any damages resulting from the loss, in whole or in part, of any data or other items making up Customer Content, regardless of the reason for such loss.
9. Customer Customizations. Customer may use tools provided within the Software to customize certain components of the Software and Services including, but not limited to, rules, templates and alternate descriptions of content (“Customizations”). Customer represents and warrants that (i) Customer has all necessary rights to create or use any such Customizations; (ii) Customer is solely responsible for all aspects of such Customizations; and (iii) such Customizations do not violate the rights of any third party. Customer grants to Company a non-exclusive, worldwide, perpetual, royalty free license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, sell and otherwise use Customizations in connection with Company’s performance under this Agreement or the provision of software and services to other Company customers.
10. Effect of Termination. Upon termination or expiration of this Agreement, all Subscription Licenses and Services will terminate and Customer will immediately cease all use of the Subscription Software, Documentation and Services, and promptly destroy or return all copies of the Company’s Confidential Information and Documentation. Customer is responsible to take appropriate steps prior to any such termination date to manage and perform any transition processes and business operations that Customer may need prior to any such termination date. Customer is responsible for extracting Customer Content and other data using Company’s then current method, format and instructions. If Customer requires Company professional services with respect to such extraction, Company will provide such services on a time and materials basis pursuant to the Professional Services Schedule.
