Subject to the terms and conditions set forth herein, Customer (as defined in the relevant Order) hereby engages SRS Web Solutions, Inc., a Minnesota corporation (“SRS”), and SRS hereby agrees to be engaged, to perform those certain services and/or provide certain products as specifically identified in an order for services executed by both Customer and SRS (the “Order”). As used herein, the term “Agreement” means the Order combined with these terms and conditions.
1. Order: Customer hereby authorizes SRS to procure and deliver the products and services described in the Order. Customer may cancel the Order only with the written consent of SRS and the payment of reasonable cancellation charges determined at the discretion of SRS.
2. Payment: Payment in full is due on or before delivery of any product or service unless otherwise expressly provided in the Order or in a separate written agreement between SRS and Customer. In the event Customer accepts partial delivery of a product or service contained in the Order, Customer shall make a corresponding partial payment. If Customer fails to make any payment when due, Customer shall pay a late payment fee not to exceed the lesser of 1.5% of the late payment per month or the maximum amount allowed under applicable law. Customer agrees to pay all shipping and handling charges, taxes and any other charges of any kind imposed by any governmental entity with respect to this Agreement. To secure payment of amounts due, Customer hereby grants SRS a purchase money security interest in all equipment described in the Order.
3. Business Purpose: Customer represents and warrants that Customer will use all products ordered from SRS solely in the operation of his/her/its business (and not for any personal, household or family purpose), for the purpose intended, and at the permitted location(s).
4. Force Majeure: SRS shall not be liable for any failure to deliver or delays in delivery or performance due to causes beyond its reasonable control, including, without limitation, (a) delays in manufacture or transportation, (b) acts of Customer or others acting for or on behalf of Customer, (c) strikes or other labor difficulties, (d) governmental controls or actions, and/or (e) acts of God or other casualties. In the event of such failure or delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of such failure or delay.
5. No Waiver: Any representation, affirmation of fact, course of dealing, usage of trade, promise or condition in connection with this Agreement not incorporated herein shall not be binding on either party. No waiver, alteration or modification of any of the provisions hereof shall be effective unless made in writing and signed by a duly authorized representative of SRS. Waiver by any party of strict performance of any provision of this Agreement shall not be a waiver of or prejudice any party's right to require strict performance of the same provision in the future or of any other provision of the Agreement.
6. Identity of Customer: The Customer for purposes of the Agreement shall be as set forth in the Order. If an individual executes the Order on behalf of a legal entity (i.e., a corporation, partnership, limited liability company, etc.), “Customer” shall mean such legal entity. By signing on behalf of a legal entity, such individual hereby represents and warrants that he/she has the full legal authority to sign the Order on behalf of such legal entity with the intention and authority to bind it.
7. DISCLAIMER OF LIABILITY: IN NO EVENT SHALL SRS BE LIABLE TO CUSTOMER FOR ANY (A) LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, AND EVEN IF SRS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (B) CLAIMS MADE AGAINST SRS MORE THAN TWO YEARS AFTER THE RELATED CAUSE OF ACTION AROSE.
8. Customer Obligations.
(a) Back-Up. Customer shall keep up-to-date backup copies of all of its data engaged with or utilized by any SRS product or service for recovery purposes. SRS shall have no liability for any loss of data arising out of the provision of maintenance and support services to Customer, including losses arising from the installation of upgrades or error corrections provided by SRS.
(b) Cooperation. Customer shall provide SRS all data, information and cooperation that SRS deems necessary for the performance of SRS’s obligations under the Agreement. SRS shall have no liability for any delay in the performance of any obligation under the Agreement resulting from Customer's failure to provide data or information or to cooperate as requested by SRS.
(d) Compliance with Law. Customer shall comply with all laws and contractual obligations, including requirements of insurers, credit card issuers and other third party service providers, applicable to Customer's use of any product or service described in the Order. Such laws and obligations include, but are not limited to, (i) state and federal statutes, (ii) rules and regulations governing record retention, (iii) billing error resolution, (iv) confidentiality, (v) data privacy and security, (vi) claims and payment processing, (vii) state Medicaid rules and regulations restricting access to and use of eligibility information, (viii) rules and regulations of the federal Department of Health and Human Services, and (ix) the Payment Card Industry Data Security Standard (PCI DSS).
(e) Use in Accordance with Specifications. Customer shall use the products and services described in the Order in accordance with the operator and user guides and other manuals and technical information and specifications, whether in hard copy, electronic or other format, furnished by SRS to Customer.
(f) Indemnification. SRS shall have no liability for Customer's failure to comply with its obligations under this Section 8. Customer shall defend, indemnify and hold harmless SRS from and against any loss or damage, including attorneys' fees, resulting from Customer's breach or claimed breach of any such obligation.
9. Miscellaneous: The Agreement shall be governed by the laws of the state of Minnesota. The Agreement and any other written agreement between SRS and Customer expressly referenced in this Agreement constitute the entire agreement between the parties as to the subject matter of the Agreement and supersede all other communications, oral or written. The invalidity of any term or provision of the Agreement shall not affect the validity of any other provision. The section and paragraph headings of this Agreement are for convenience only and are not intended to act as a limitation or expansion of the scope or meaning of the sections and paragraphs themselves.
1. Nature of Rights. Customer is purchasing a license to use the software described in the Order. Customer is not purchasing any of the software. The provisions of this Section 10 cover the mConsent product, SRS Web Forms, HOOPOE, Caretap and Caretap EVV, and any other proprietary software developed by SRS and itemized in the Order, together with all related documentation (collectively, the “SRS Software”). Software included in the Order that is not SRS Software is licensed to Customer under the terms of a separate license agreement(s), if any, delivered to Customer with such software and is not licensed to Customer by SRS. Customer shall be deemed to have accepted the SRS Software and any other software upon delivery.
2. License; Fees. Subject to the terms of this Section 10 and the other terms contained herein, SRS grants Customer a limited, revocable, nonexclusive license to use the SRS Software (the “SRS Software License”). Customer agrees to pay to SRS the license fees and other charges in the amounts and at the times set forth in the Order or in a separate written agreement between Customer and SRS.
3. Use Restrictions
(a) Nature of Use. Customer shall not copy, distribute, adapt or prepare derivative works from, reverse engineer, disassemble, decompile, rent, lend, lease, sell, or otherwise transfer or disclose the SRS Software or make the SRS Software available to any third party, except as provided in parts (d) and (e) of this Section 10 (below), except that Customer may otherwise use the SRS Software for solely internal professional purposes in Customer's own office(s). For example, Customer may not use the SRS Software to provide consulting, time sharing, outsourcing, service bureau or similar services for or on behalf of any third party; and Customer may not, without SRS’s prior written consent, copy, display, or perform on the internet any SRS Software product presentations or display any other content created by or contained in the SRS Software. Except as provided above, use of the SRS Software by any person or legal entity other than Customer is a breach of this Agreement. Certain SRS Software can only be installed and used solely on iPad products produced by Apple Inc. (e.g., iPad mini, iPad Air, iPad Pro, etc.). Customer shall use its best efforts to protect the SRS Software from unauthorized reproduction or use.
(b) Nature of License. Customer may use the SRS Software on each device and at each site for which Customer has purchased a license. To use any SRS Software on more than one device or at more than one site, Customer must purchase a separate license for each individual device and/or location (as applicable) or a multi-device and/or multi-site license covering each device and/or site. Customer shall not access the SRS Software through a wide area network from multiple locations unless Customer purchases a separate license for each location or a multi-site and multi-device license covering each location.
4. Restrictions on Transfer. Customer may not sublicense, assign, or transfer any of its rights to use the SRS Software without the prior written consent of SRS. Provided, however, that Customer may transfer its rights under the SRS Software License to a transferee of substantially all of Customer's assets without the prior written consent of SRS so long as (i) Customer has paid in full all license and other fees payable pursuant to the SRS Software License, (ii) the transferee agrees to all of the terms and conditions contained in the Agreement and assumes all obligations of the Customer pursuant to the Agreement in a writing furnished to SRS, and (iii) Customer certifies to SRS in writing that it no longer holds or has access to any of the SRS Software. If Customer is a sole proprietor and not a legal entity, employees of Customer may use the SRS Software in the conduct of Customer's business and on the terms contained in the Agreement.
(i) Software. Customer acknowledges and agrees that SRS and its licensors are the sole owners of all right, title, and interest in and to the SRS Software, including all intellectual property rights, except for components distributed under open source licenses. The SRS Software License confers on Customer no ownership interest or intellectual property rights in the SRS Software. The SRS Software is protected under United States, Canadian and other applicable copyright and intellectual property laws and international treaty provisions. Customer acknowledges and understands that the SRS Software has been developed at considerable time and expense to SRS and its licensors and contains confidential and proprietary information not known to the general public. Any misuse of the SRS Software or other breach of this Section 10 would cause irreparable harm to SRS for which SRS cannot be adequately compensated by damages. Consequently, Customer agrees that, in addition to any other remedies available to SRS, SRS shall be entitled to seek injunctive or other equitable relief to prevent such breach or further breaches of the SRS Software License. Customer shall not remove any copyright, trademark, or confidentiality notice from the SRS Software.
(ii) Hardware/iPad Devices. Any hardware provided to Customer by SRS is the property of SRS unless otherwise specified in the Agreement. All such hardware is provided on a lease basis and is due to be returned to SRS when the Agreement is terminated. SRS has the full right and consent of Customer to control any such hardware remotely via the internet or through any other available technology for any reason.
6. Updates. SRS may, from time to time, make updates to the SRS Software available to Customer. Unless accompanied by or expressly made subject to a separate license agreement, all such updates shall be deemed “SRS Software” and remain subject to the SRS Software License.
7. Limited Warranty.
(a) Hardware. In the event that SRS provides Hardware to Customer as set forth in the Order, SRS warrants to Customer that, for a period of thirty (30) days following delivery of the SRS Software to Customer, the hardware (iPad/tablet) containing the SRS Software shall be free from material defects in materials and workmanship when operated under normal use. If a material defect in such hardware appears during such period, Customer's sole and exclusive remedy and SRS's sole obligation under this warranty shall be the replacement of such defective media. To receive a replacement, Customer must contact its local SRS branch office during such thirty (30) day period.
8. Disclaimer of Warranty. THE EXPRESS, LIMITED WARRANTIES PROVIDED IN THE FOREGOING SECTION 10(g) OF THIS LICENSE AGREEMENT ARE THE ONLY WARRANTIES MADE BY SRS WITH RESPECT TO THE SRS SOFTWARE AND ANY HARDWARE PROVIDED BY SRS. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, OTHER THAN THE EXPRESS WARRANTIES IN SECTION 10(g) HEREOF, SRS DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY SOFTWARE FURNISHED TO CUSTOMER IN CONNECTION WITH THIS LICENSE AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE OR THAT THE SOFTWARE WILL OPERATE ERROR FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPUTER CODE.
9. Disclaimer of Liability. IN NO EVENT SHALL SRS BE LIABLE FOR ANY (A) LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, EVEN IF SRS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (B) CLAIMS MADE AGAINST SRS MORE THAN TWO (2) YEARS AFTER THE RELATED CAUSE OF ACTION AROSE. WITHOUT LIMITING OF THE FOREGOING, SRS SHALL HAVE NO LIABILITY FOR (X) LOSS OF CUSTOMER DATA, HOWEVER CAUSED, OR (Y) DAMAGES CAUSED BY MALICIOUS SOFTWARE, WHETHER OR NOT PREVENTED OR PREVENTABLE BY ANTI-VIRUS OR INTRUSION PROTECTION SOFTWARE ACQUIRED FROM SRS.
10. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THE SRS SOFTWARE LICENSE, SRS’S CUMULATIVE LIABILITY UNDER THE SRS SOFTWARE LICENSE, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE SRS SOFTWARE OR THE PERFORMANCE OR NON-PERFORMANCE OF OR INABILITY TO USE THE SRS SOFTWARE, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE LICENSE FEES PAID BY CUSTOMER TO SRS FOR THE SRS SOFTWARE.
(a) Third Party Infringement Claims. SRS shall defend, at its own expense, any action against Customer brought by a third party to the extent that the action is based upon a claim that the SRS Software directly infringes upon any United States copyright or misappropriates any trade secret recognized as such under the Minnesota Uniform Trade Secrets Act. SRS shall pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
(b) Conditions. SRS’s obligations under the preceding paragraph with respect to an action are conditioned upon Customer (A) notifying SRS promptly in writing of such action, (B) giving SRS sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating with SRS in such defense (including, without limitation, by making available to SRS all documents and information in Customer's possession or control that are relevant to the infringement or misappropriation claim(s) and by making Customer's personnel available to testify or consult with SRS or its attorneys in connection with such defense).
(c) SRS Options. If any part or component of the SRS Software becomes, or in SRS’s opinion is likely to become, the subject of an infringement or misappropriation claim, SRS may, at its sole option and expense, either (A) procure for Customer the right to continue using the infringing SRS Software, (B) replace or modify the infringing SRS Software so that it becomes non-infringing, or (C) terminate Customer's right to use the infringing SRS Software and give Customer a refund or credit for the license fees actually paid by Customer to SRS for the infringing components of the SRS Software, less a reasonable allowance for the period of time Customer has used the SRS Software.
(d) Exclusions. Notwithstanding the foregoing, SRS shall have no obligation to indemnify Customer with respect to any infringement or misappropriation claim based upon (A) use of the SRS Software not in accordance with the SRS Software License or any documentation for the SRS Software, (B) use of the SRS Software for any purpose not intended by SRS, (C) use of the SRS Software in combination with other products, equipment, software or data not supplied by SRS, (D) use of any release of the SRS Software other than the most current release made available to Customer, or (iv) any modification of the SRS Software made by any person other than SRS.
(e) Entire Liability. This section states SRS’s entire liability and Customer's sole and exclusive remedy for infringement and misappropriation claims and actions.
13. Term and Termination. The SRS License granted under this Section 10 is effective until terminated. Customer can terminate the SRS License at any time by discontinuing its use of the SRS Software and notifying SRS in writing of Customer’s intent to discontinue its use of the SRS Software. SRS may terminate the license effective immediately if Customer fails to pay any license fee or other amounts owing to SRS with respect to the SRS Software or fails to comply with any term of the SRS Software License. Upon termination of the SRS Software License for any reason, Customer shall return all copies of the SRS Software and hardware to SRS upon its request, remove all copies of any SRS Software from its hardware (i.e., iPads, tablets, mobile devices, etc.), and demonstrate or certify to SRS’s satisfaction that it has done all of the foregoing. All provisions of the SRS Software License relating to disclaimers of warranties, limitations of liability, remedies and damages, as well as SRS’s proprietary rights to the SRS Software, shall survive termination of the SRS Software License.
14. Government License Rights. The SRS Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government licensees and end users acquire the SRS Software with only those rights set forth herein. The contractor/manufacturer of the SRS Software is SRS.
15. Software Maintenance Plans. If Customer has purchased support services from SRS as set forth in the Order, SRS will provide reasonable technical support by telephone or email during normal business hours. If Customer has not enrolled in a support services plan with SRS and requests support from SRS, Customer agrees to pay SRS its then standard hourly service fees for such support. Hours, contact information and other terms of service for software maintenance plans in effect from time to time are available at www.srswebsolutions.com. SRS may modify such terms from time to time with or without notice. Service calls and other service-related activities may be recorded or monitored for quality assurance purposes.
16. Customer Responsibility for Data Security and Backup. Customer is solely responsible for the security and backup of its data and for the accuracy and completeness of all data entered by Customer while utilizing the SRS Software. SRS strongly encourages Customer to (i) protect its network from unauthorized access, (ii) archive and verify its data on a daily basis, (iii) keep all software current with the latest security patches and updates, and (d) employ up-to-date encryption technology or other appropriate means to protect the security of its data when transmitted, electronically or otherwise, to SRS. SRS shall have no liability for any unauthorized interception or disclosure of Customer’s data during its transmission from Customer to SRS.
17. Client Consent. Customer represents and warrants to SRS that it has obtained and shall obtain all consents required by law or contract from clients of Customer whose health, financial or other personal information may be disclosed to SRS in the course of Customer's use, or SRS’s installation, maintenance or support of, the SRS Software. Customer shall defend, indemnify and hold harmless SRS from and against any loss or damage resulting from Customer's failure, or claimed failure, to obtain any such consent.