The Parties agree to the following Terms & Conditions as a condition of Company’s use of the System:
Subject to the terms of this Agreement, RMD hereby: (a) grants Company a limited, non-exclusive, non-transferable, non-sublicensable license to use and display the Licensed Software and approved third party software for the sole purpose of collecting, aggregating, storing, managing, analyzing, publishing, displaying and distributing the Content (as defined in Section 3 below), (b) agrees to provide Company the Services, and (c) agrees to provide Company any additional goods or services pursuant to a written purchase order attached hereto and executed by both parties (“Purchase Order”) governing the terms, conditions and fees of such additional goods or services (“Other Services”). Company agrees that it shall be solely responsible for obtaining and maintaining the Internet connectivity necessary to access and use the System.
The Licensed Software, and any modifications, corrections, enhancements, derivative works and improvements made thereto, and all intellectual property rights (including but not limited to source code, object code, computer programming materials and all related copyrights, patent rights, trade secrets, ideas, designs, concepts, techniques, inventions and discoveries) with respect to the Licensed Software are and remain the property of RMD.
The Parties agree to comply with all applicable state and federal laws, rules and regulations applicable to its performance of this Agreement.
This Agreement shall commence on the Effective Date and continue for a period of one (1) year (the “Initial Term”), unless terminated by either party upon thirty (30) days written notice. This Agreement shall automatically renew for an additional one (1) year term (“Renewal Term”) unless either parties provides prior written notice of its intentional not to renew within thirty (30) days. Other Services purchased by Company after the Effective Date shall be provided for a time period co-terminus with the then-existing Initial Term or Renewal Term, unless otherwise specified in the Purchase Order.
Either Party may immediately terminate this Agreement in the event of (i) a material breach by the other Party of this Agreement by giving the breaching Party thirty (30) days’ prior written notice detailing the breach if the breaching Party has not cured the breach within such thirty (30) day period, or (ii) the other Party making an assignment for the benefit of creditors, becoming insolvent or unable to pay its debts generally as they become due, or consenting (or receiving an order requiring consent) to the appointment of a receiver, trustee or liquidator of the Party’s property.
Upon expiration or termination of this Agreement for any reason, Company shall immediately discontinue all access to and use of the Licensed Software
The terms and conditions of the parties set forth in Sections 1.2, 2.4, 3, 4, 5.1, and 6 shall survive the termination or expiration of this Agreement.
The term “Confidential Information” means any information or data about the business, operations, personnel, customers, patients and affairs that a Party (“Disclosing Party”) discloses to the other Party (“Receiving Party”), regardless of the form in which it is provided or maintained, including but not limited to this Agreement, any information regarding the System, and all proprietary information, whether of a technical, business, financial or other nature. Confidential Information shall not, however, include any information which: (i) was publicly known prior to the time of disclosure by the Disclosing Party; (ii) is already in the possession of the Receiving Party without confidentiality obligations at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; or (iv) is required by law to be disclosed by the Receiving Party. Each Receiving Party agrees to (a) use reasonable efforts to protect the Confidential Information of the Disclosing Party, (b) use and disclose the Disclosing Party’s Confidential Information only for the purpose of performing its obligations or enforcing its rights under this Agreement, (c) limit access to the Confidential Information to those employees, agents, vendors and subcontractors who have a need to access such Confidential Information and who are bound to maintain the confidentiality of Confidential Information. Company must open an account (including setting up login credentials and passwords) and agrees that Company is entirely responsible for maintaining the confidentiality of the information held for such account, including any unauthorized use of such account, credentials, passwords, or any other breach of security.
Except as expressly set forth herein, RMD and its Affiliates make no representations or warranties, whether express or implied, to Company in respect to this Agreement, and RMD specifically disclaims on behalf of itself and its Affiliates any statutory or implied warranties, including any warranty of merchantability or fitness for a particular purpose. Company warrants that Company and/or its Affiliates is the sole owner of, or otherwise has sufficient rights to provide RMD and its Affiliates with, any and all Content supplied by Company to RMD.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH HEREIN THIS AGREEMENT, THE SYSTEM IS MADE AVAILABLE AND PROVIDED TO COMPANY ON AN “AS-IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO WARRANTIES OF SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS OR ACCURACY IN THE LICENSED SOFTWARE, SERVICES OR CONTENT (DEFINED BELOW) FOR ANY PURPOSE. RMD AND ITS SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES WITH REGARD TO THE SYSTEM, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. RMD MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY THIRD-PARTY SOFTWARE, HARDWARE OR INFORMATION THAT MAY BE USED IN CONNECTION WITH ACCESSING THE SYSTEM. RMD DOES NOT WARRANT THAT THE SYSTEM WILL BE ERROR-FREE OR FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. RMD SHALL HAVE NO RESPONSIBILITY FOR FAILURES OR DELAYS OF ANY KIND CONCERNING THE SYSTEM AND SHALL ASSUME NO RESPONSIBILITY FOR COMPANY’S USE OF THE SYSTEM.
IN NO EVENT SHALL RMD OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, PROFITS, BUSINESS OR GOODWILL) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE DISPLAY, USE OR PERFORMANCE OF THE LICENSED SOFTWARE, SERVICES, OR CONTENT, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. COMPANY AGREES THAT THE TOTAL LIABILITY OF RMD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, IF ANY, FOR ACTUAL LOSSES OR DAMAGES SHALL NOT EXCEED FEES ACTUALLY PAID BY COMPANY TO RMD UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING SIX (6) MONTHS.
Company shall, at its own cost, indemnify, defend and hold harmless RMD, its Affiliates and their respective officers, directors, shareholders, employees, agents and other representatives for, from and against any claims, losses, liabilities, costs or damages, including reasonable attorneys’ fees and costs (“Losses”), arising out of, resulting from or in any way related to any claim by any third party directly or indirectly based upon (i) any breach by Company of its warranties; (ii) Company’s willful misconduct, gross negligence or noncompliance with applicable law; or (iii) the possession or use by RMD and/or its Affiliates of any Content or other information provided by Company. The foregoing indemnification will not apply to the extent any such Losses arise out of, result from or in any way relate to any willful misconduct, gross negligence or noncompliance with applicable law by RMD, its Affiliates or their respective officers, directors, shareholders, employees, agents or other representatives.
Company hereby grants to RMD and its authorized personnel a worldwide, royalty-free, fully-paid, non-exclusive, irrevocable, perpetual, transferable (in connection with an assignment of the Agreement) and sublicensable (as necessary to offer the System) license to use, reproduce, sort, aggregate, publicly display, publish, distribute, create derivative works of, analyze, excerpt and index the Content on the Websites and elsewhere in any media and into RMD’s collection of owned and licensed data. “Content” means any electronic data, content, survey results, customer information, ratings, reviews and similar materials provided or identified by Company or on behalf of Company to RMD. RMD acknowledges and agrees that Company will own all right, title, and interest in and to any Content and will provide to RMD access to Content directly or any applicable administrative logins and passwords associated with accessing such Content from third parties. Company represents, warrants and covenants that (i) all Content provided to RMD is accurate and truthful, (ii) Company has the right to enter into this Agreement and to license or provide the Content, (iii) the execution and performance of this Agreement does not violate any other contract or obligation to which Company is a Party or is otherwise bound, and (iv) the Content, and RMD’s authorized use and possession of the Content, does not infringe the intellectual property rights, including any copyrights, trademarks, trade secrets, right of privacy, or right of publicity, of any third Party.
Company shall review, filter, redact, revise and approve all Content before being disseminated by (i) Company directly or (ii) by RMD on behalf of Company, whether through the Websites or other medium. By approving Content, Company represents, warrants and covenants that the public display of such approved Content does not violate any applicable laws, regulations, orders or rules. If RMD is unable to publish the proposed Content due to Company’s failure to approve and/or revise the proposed Content, then Company agrees and acknowledges that the System may be interrupted and/or delayed.
In the performance of the duties and obligations of RMD hereunder, it is mutually understood and agreed that RMD and Company are acting and performing as independent contractors, and nothing in this Agreement is intended nor shall be construed to create between RMD and Company an employer/employee, agency, joint venture, lease or landlord/tenant relationship.
Neither Party may transfer or assign this Agreement, in whole or in part, without the prior written consent of the other Party. Notwithstanding the foregoing, in the event either Party is acquired by, merged into or sells substantially all of its assets to any entity, such Party need not obtain the other Party’s prior written consent and this Agreement shall be binding upon and inure to the benefit of the Parties and their successors or assigns.
This Agreement shall be governed by and interpreted according to the laws of the state of Georgia without regard for or application of choice or conflict of law rules or principles. The Parties expressly agree that all disputes arising in connection with or relating to this Agreement or the System shall be decided exclusively in the state or federal courts located in Fulton County, Georgia.
The waiver by either Party of a breach or violation of any provision of this Agreement will not operate as or be construed to be a waiver of any subsequent breach thereof. If any provision of this Agreement is found to be invalid or unenforceable by any court, such provision shall be ineffective without invalidating the remaining provisions hereof.