HomeMy WebLinkAboutSH18-038 QUICKMAR MED MANAGEMENT-Contract new sig pageIN WITNESS WHEREOF, the parties have executed this Agreement this day of
2018.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
KITTITAS COUNTY, WASHINGTON
Chairman
Vice -Chairman
Commissioner
Attest: Approved to Form:
By: / CG
Douglas R. Mid chell, Deputy Prosecuting Attorney
Clerk of the Board - Julie Kjorsvik
Deputy Clerk of the Board - Mandy Buchholz
End User License Agreement - CareSuite
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THIS IS AN AGREEMENT BETWEEN' YOU ("YOU" OR "THE LICENSEE") AND
MED MANAGEMENT TECHNOLOGY (MMT) [SOFTWARE COMPANY]
("LICENSOR"). BY CLICKING ON THE "I ACCEPT" BUTTON, YOU AGREE TO THE
TERMS STET FORTH IN THIS END USER LICENSE AGREEMENT ("AGREEMENT").
IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE
CLICKING ON "I ACCEPT." IF YOtJ DO NOT AGREE TO THESE TERMS, PLEASE
DO NOT CLICK ON "I ACCEPT" AND DO NOT DOWNLOAD OR USE THE
SOFTWARE (AS DEFINED HEREIN). YOU ARE ENCOURAGED TO PRINT THIS
AGREEMENT NOW SO THAT YOU MAY REVIEW IT :BEFORE PROCEEDING AND
SO THAT YOU MAY HAVE A COPY FOR YOUR FILES.
SECTION 1. LICENSE
1.1. License Grant. Licensor grants to Licensee and Licensee accepts from Licensor for the
duration of the terns of this Agreement a aa.on-exclusive, revocable, non-sublicensable and
non -transferable license under Licensor's copyrights (the ":License") .in the United States :for
the term of this Agreement: to download, install and use the machine -code version of the
software together with any related technical specification documentation provided by
:Licensor (the ".Documentation") (together, the "Software") on a single computer. If you are a
Pharmacy, your license is limited to the following activities: (i) connect the Pharmacies'
Records and systems with the :Interface and MMT Software (Software); and (ii) permit the
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P ,l i - s to use whatever components of Software that are capable of being utilized
rou.lgl , " lite.: � V s relating to the Pharmacies' provision of services to
t los nc?? 1n , it u. l atioz�, an information that may be transmitted from
y y
Sof e to t 'l
1.11111t&olSrdlI. uvt rethiarahrsigh.tl�tititatlDJkAter& tpport
including all patent rights, copyrights and trademarks, in and to the Software and all
derivative works.
1.3. Backup Copies. In addition to copies made pursuant to installation under Section 1.1
above, Licensee may make a copy of the Software for backup and archival purposes.
.Licensee must reproduce and include the copyright and trademark notices and any other
notices that appear on the original Software on all copies, including backup and archival
copies, and any media. therefore.
1.4. Restrictions. Except as otherwise expressly permitted herein, Licensee and its principals,
agents and employees shall not (and shall not allow any third party) to: (i) decompile,
disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits
reverse engineering restrictions) or attempt to reconstruct or discover any source code,
underlying ideas, algorithms, file formats or programming or interoperability interfaces of
the Software by any means whatsoever, (ii) remove any product identification, copyright,
trademark or other notices, (iii) provide, lease, lend, use for timesharing, service bureau or
hosting purposes or otherwise use or allow others to use the Software to or for the benefit of
third parties, .including but not limited to entities with which the Licensee or the principals of
the Licensee are affiliated in any way, (iv) modify, or, except to the extent expressly
authorized herein, incorporate into or with other software or create a derivative work of any
part of'the Software, (v) disseminate information or analysis (including, without limitation,
benchmarks) regarding the duality or performance of the Software from any source, without
prior written authorization by Licensor, or (vi) use the output or other information generated
by the Software (including, without limitation, output describing the structure of a. software
program) for any purpose other than use by the Software in accordance with its
specifications, or (vii) share the application in a client/server or networked environment.
THIS SOFTWARE IS PROVIDED BY LICENSOR "AS -IS" AND WITH ALL FAULTS
ACCEPTED, WITH NO WARRANTIES, EXPRESS OR IMPL:I:ED, OF ANY KIND. NO
DEALER, AGENT OR EMPLOYEE Or LICENSOR IS AUTHORIZED TO MAKE ANY
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rA
ATIONSE TENS.I'ONS O�� ADDITIO(NSy( y�TOyT�`�IS�f �)S'yyy�WWWECT�IyyONp. LIC'ENyµ��`y�S3�ORl A L J+ L 11ON OR \ i AA.1.1 ANT A OF AN 1 KIND W A AM.JTHER
FACT O:R. BY OPERATION OF LAW WITI [
)T "I f R OTHER. MATERIALS PROVIDED BY :LICENSOR.
.LICENSOR EXPRESSLYDISCLAIMS ALL IMPLIED WARRANTIES OF
N II`lll ik c ME[ h rah i i ABUdjjya D 1Va-i -S FaAt&-PtNXT:[%*jA $
PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR -
FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR
UNINTERRUPTED. LICENSEE MAY :HAVE OTHER STATUTORY RIGHTS.
HOWEVER, TO TIIE FULL EXTENT PERMITTED BYLAW, THE DURATION OF
STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE
SHORTEST :PERMISSIBLE DURATION. MOREOVER, IN NO EVENT WILL
WARRANTIES PROVIDED BYLAW, IF ANY, APPLY UNLESS THEY ARE
REQUIRED TO APPLY BY STATUTE.
3.1. Support. During the period beginning on the date of installation and ending with the
termination of this license agreement (the "Support Period"), and provided Licensee and/or
Pharmacy has paid the applicable fees (if any), Licensor shall provide support in accordance
with Licensor's then -current policies. Any patches, updates, etc. provided as part of Software
maintenance shall be included within the definition of Software for the purposes of this
Agreement to the extent made available by Licensor. Licensor will not charge for this
support, however Licensor reserves the right to charge if the demand for support becomes
unreasonable.
3.2. Renewals. Licensor's obligation to provide the above-described support and
maintenance and Licensee's and/or Pharmacy's obligation to pay the then -current applicable
subscription fee shall renew automatically at the end of the Support Period, unless either
Licensee or Licensor has given the other party prior written notice of cancellation at least
thirty (30) days prior to the expiration of the Support Period. If :Licensee elects not to renew
support and maintenance for successive terms,.Licensee may reenroll only upon payment of
the applicable fee.
3.3. Training. Upon Licensee's request, .Licensor will provide training to Licensee in
accordance with Licensor's then current training offerings and at Licensor's then current
prices at mutually agreed upon times and locations. In the event training services are
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T3.4.,
locations other than. at Licensor"s premises, Licensee shall be responsible for all
l h.a ei ,expenses related to providing such training services.
ite. ce �s 1011% U
ytle)optor►, if requested by Licensor, to partici ate in beta testing
g
of subsequent releases of the Software and to provide feedback on :functionality,
inEk,l]�St ilioAsseciRit< Tand:yntEartperforn-gnml=Sries ffi=saGwPr6Eonab, ip pibst.
SECTION 4. FEES; PAYMENT TERMS.
4.1 License and Services Fees. The monthly fee for the License granted by the EU.LA and
the Services (the "Fees") shall be calculated per Active Resident living in an Electing
Facility during such month for which QuickMAR has been utilized to manage their care,
including but not limited to medication administration as detailed in pricing table below.
"Active Resident" defined to mean, any individual listed in the MMT Software database for
whom the MMT Software has been utilized for medication administrationand/or
management. If no medications are managed at the facility using MMT Software then a
secondary definition of Active Resident will apply, based on which software modules are put
into use. If modules other than the eMAR module are activated in the MMT Software then
any resident that is designated Active, as defined in the software, on the last day of the
billing period in the MMT Software will be considered an Active Resident. Fees shall be
based on the current pricing table and/or agreement between MMT and Pharmacy and/or
Licensee. For a copy of the current pricing table contact sa.les@quickmar.com.
4.2 General. The Fees shall not .include taxes or duties of any land levied by tederal, state,
municipal. or other governmental authority which either MMT or Pharmacy is required to
pay with respect to the License and Support.
4.3 Payment Terms. MMT shall submit a detailed invoice to Licensee and/or Pharmacy for
all Fees, Installation and Training Charges and/or Transfer Charges within 10 days after the
end of each month. Pharmacy and/or Licensee shall remit payment within 30 days of the
invoice date. M.MT shall apply payments froin Pharmacy and/or Licensee to the invoices
specified by Pharmacy.
5.1. Term. This Agreement shall commence on the Effective Date, and shall continue until
terminated as provided herein.
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5. T=unati.on. Licensor may terminate this Agreement (a) for cause if Licensee and/or
11 yarmfi s t , , r a I `tach of this Agreement within thirty (30) days atter
rc of s hre c, t r ( srnmedi.ately in the case ofa breach of Section 1.4.
all all. survive termination. Upon such ternainati.on for
breach, Licensee shall immediately cease all use of the Software andreturn or destroy all
an exclusive remedy, and all other remedies will be available whether or not this Agreement
is terminated.
SECTION 6. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING IN THI'S AGREEMENT TO THE CONTRARY,
LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH. RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, N:EGL:IGENCE,
STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (i) FOR
ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO
LICENSOR BY LICENSEE WITH RESPECT TO THE COPIES OF SOFTWARE THAT
ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE MONTH PERIOD
PRIOR TO ACCRUAL OF THE CAUSE OF ACTION; (ii) FOR ANY
SPECIAL,PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, FOR ANY LOST PROFITS, COST OF PROCUREMENT OF
SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS); (iii) FOR
INTERRUPTION OF USE OR LOSS OR CORRUPTION OF :D.ATA; OR (iv) FOR ANY
MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY
TO LICENSEE.
SECTION 7. RICHT TO AUDIT
O.n Licensor's written. request Licensee shall. furnish Licensor with a signed certification
certifying that the Software is being used pursuant to the terms of this Agreement including
any copy and User limitations. With prior reasonable notice, Licensor may audit the copies of
the Software in use by Licensee provided such audit is during regular business hours. In the
event the audit reveals a material discrepancy on the part of Licensee, Licensee shall pay
Licensor then current License fee for the number of licenses reflected in the discrepancy and
maintenance for any unauthorized use of the Software.
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SaCAD N87. GENERAL PROVISIONS
1.iv,
�' txtlir� taEies under this Agreement shalt be cumulative and not
a].. t � l 'medy for a breach shall not preclude pursuit of other
relayl s ta.s expressly provided in this Agreement.
l� Y l�
8.2. Governing Law. This Agreement shall. be governed in all respects by the substantive
la I f l' t i i of 1 1 1 nll Xr sol Y (exc lei V conq%'1tM`t1Ws rufM,
applied to agreements entered into and to be performed entirely within the State of Idaho
between Idaho residents, without regard to the U.N. Convention on Contracts for the
International Sale of Goods. Any dispute regarding this Agreement shall be subject to the
exclusive jurisdiction of and venue within the state or federal courts located in the state of
Idaho, and the parties agree to submit to the personal and exclusive jurisdiction and venue of
these courts.
8.3. Notices. All notices, statements, and reports required or permitted by this Agreement
shall be in writing and deemed to have been effectively given and received: (i) five (5)
business days after the date of mailing .if sent by registered or certified U.S. mail, postage
prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a
confirmation of transmission is produced by the sending machine and a copy of such
facsimile is promptly sent by another means specified in this Section 7.3; or (iii) when
deliveredif delivered personally or sent by express courier service. Notices shall be
addressed as follows:
If to Licensee: As set forth in purchasing information provided to Licensor prior to
download.
If to :Licensor: Med Management 'T'echnology, :LLC
1017 S. Arbor Island Way
Eagle, TD 83616
8.4. Export Restrictions. Licensee understands and acknowledges that certain technology
licensed hereunder may be subject to regulation by agencies of the U.S. government,
including the U.S. Department of Commerce, which prohibit export or diversion of certain
products and technology to certain countries. Licensee warrants that it will comply in all
respects with the export restrictions applicable to any materials or technology provided
hereunder and will otherwise comply with the Export Administration Regulations or other
United States laws and regulations in effect from time to time.
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8. ment. Licensee shall not assign or otherwise transfer any of its rights, obligations
r lice h ret.. t t t r written consent of Licensor, including any
a t b%jo �ition a aJesult of the merger or acquisition of Licensee, and only
upo e orc � 'u y ive ting itself, himself or herself of all possession of the
Software and all media and copies thereof. Subject to the foregoing, the provisions of this
A JI l�ir� aPp i � dyb[ ilti ssuc �Y � i
pcM1Jgttg4 ass t5t€ t,'t par&tp.port
8.6. Independent Contractor. The relationship created by this Agreement is one of
independent contractors, and not partners, franchisees or joint ventures. No employees,
consultants, contractors or agents of one party are employees, consultants, contractors or
agents of the other party, .nor do they have any authority to bind the other party by contract
or otherwise to any obligation, except as expressly set forth herein. Neither party will
represent to the contrary, either expressly, implicitly or otherwise.
8.7. Headings. The descriptive headings of this Agreement are intended for reference only
and shall not affect the construction or .interpretation of this Agreement.
8.8. Severability. If any covenant set forth in this Agreement is determined by any court to
be unenforceable by reason of its extending for too great a period of time or by reason of its
being too extensive in any other respect, such covenant shall be interpreted to extend only
for the longest period of time and to otherwise have the broadest application as shall be
enforceable. The .invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, which shall. continue in full force and effect.
8.9. Waiver of Rights. Thefailure of either party to .insist, in any one or more instances, upon
the performance of any of the terms, covenants, or conditions of this Agreement or to
exercise any right hereunder, shall not be construed as a waiver or relinquishment of the
future performance of any rights, and the obligations of the party with respect to such future
performance shall continue in full force and effect.
8.10. Entire Agreement; Conflict. This Agreement, together with all Exhibits hereto, and
Schedules hereto (if any), constitutes the complete, final and exclusive statement of the
terms of'the Agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions of the parties.
No modification or rescission of this Agreement shall be binding unless executed in writing
by the party to be bound thereby. In the event of any conflict between the terms and
conditions of this Agreement and an Exhibit or Schedule, the terms and conditions of the
Exhibit or Schedule shall prevail.
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o wC,CW'-,Fit ar ` sh�lbbe excused from. any delay or failure in performance
el X41 e s b Licensee, caused b reason of an occurrence
Y Y Y Y
or .gen e t lj' ' . le control, including but riot limited to, acts of God,
Bart quake, floods, lightning, labor disputes and strikes, other labor or industrial
dit 7 Xrces, riots, r , acts of6he ublic eaetny; .insure tions, eml�r oes,�loc4
rI olutions a rmacy art ers om ��ny Nwrs o tact s phort
regulations or orders of any government, agencor subdivision thereo�, shortages o.
anaterials, rationing, utility or communication failures, casualty, novelty of product
manufacture or other unanticipated product development problems, and governmental
requirements. The obligations and rights of the party so excused shall be extended on a day-
to-day basis for the period of time equal to that of the underlying cause of the delay;
provided that such party shall give notice of such force majeure event to the other party as
soon as reasonably possible.
8.12. Presumptions/Review. In construing the terms of this Agreement, no presumption shall
operate in either party's favor as a. result of that party's counsel's role in drafting the terms or
provisions hereof. Further, it is agreed that Licensee has had a full and fair opportunity to
review the terms herein and to consult with legal counsel before clicking on "I Accept."
Accordingly, because Licensee has had ample review opportunities and because Licensee is
and was free to elect not to accept these terms, Licensee acknowledges that this is not a.
contract of adhesion.
8.13. Authority. Each party represents that all corporate action necessary for the
authorization., acceptance and delivery of this Agreement by such. party and the performance
of its obligations hereunder has been taken.
8.14. Legal Expenses. The prevailing party in any legal action brought by one party against
the other and arising out of this Agreement will be entitled, in addition to any other rights
and remedies it .may have, to reimbursement for its expenses, including court costs and
reasonable attorneys' fees.
8.15. Government End -Users. The Software and accompanying Documentation are deemed
to be "commercial computer software" and "commercial computer software documentation,"
respectively, pursuant to DEAR Section 227.7202 and FAR Section 2.212, as applicable.
Any use, modification, reproduction, release, performing, displaying or disclosing of the
Software by the U.S. Government shall be governed solely by the terms of this Agreement
and shall be prohibited except to the extent expressly permitted by the terms of this
Agreement.
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OF THE SOFTWARE IS SUBJECT TO THE TERMS OF THIS LICENSE
C E T l Uff DOWNLOAD OR USE THE
T SOFTWARE� UNTIL
T J I w S AGREEMENT. BY CLICKING O " ACCEPT,"
T,"
YO C *lI TA A READ THIS LICENSE AGREEMENT AND
ACCEPT ITS TERMS.
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