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HomeMy WebLinkAboutSH22-014 - SOFTWARE LICENSE AGREEMENT - SIGNED BY SHERIFFCOUNTY SOFTWARE LICENSE AGREEMENT THIS SOFTWARE LICENSE IS GRANTED BY COREMR, L.C., A UTAH LIMITED LIABILITY COMPANY AND IS SOLELY IN FAVOR OF KITTITAS COUNTY FOR USE EXCLUSIVELY AT THE FACILITY IDENTIFIED BELOW. BY EXECUTING THIS SOFTWARE LICENSE AGREEMENT (THE "LICENSE AGREEMENT") AND USING THE SOFTWARE (DEFINED BELOW), THE COUNTY AGREES TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. THIS LICENSE AGREEMENT IS ENTERED INTO AND IS EFFECTIVE AS OF THE _ DAY OF , 2022. Definitions: Agreement. "Agreement" means that certain Agreement accompanying this License Agreement entered into between CorEMR, L.C. ("CorEMR") and KITTITAS COUNTY pertaining to the provision of electronic medical records software under this License Agreement and the provision of computer hardware, if requested. COUNTY. "County" means Kittitas County, State of Washington. Facility. "Facility" exclusively means the correctional facility operated by the COUNTY located at 205 W 5t" AVE. STE 1 Ellensburg, WA 98926. Software. "Software" and/or "Medical Records Software" means the computer programs provided by CorEMR under this License Agreement for electronic medical records in connection with the accompanying Agreement. You. "You" means the County and the Facility and their respective officers, administrators, employees, agents, independent contractors, and medical staff exclusively at the Facility and the information technology staff exclusively at the Facility. 2. License Grant. Provided you comply with all of the terms and conditions of this License Agreement and the accompanying Agreement including timely payment of the Initial Set Up Fee and the Monthly Service Fee as provided in the Agreement, CorEMR grants you a non-exclusive, non -transferable, limited license to use the Software for electronic medical records under the Agreement on one server exclusively at the Facility for so long as the Agreement is in effect and not terminated or expired. Immediately upon the expiration or termination of the accompanying Agreement, this Software License Agreement shall also automatically and without notice terminate and expire and you shall no longer be entitled to use the Software, or any component thereof, except your protocol forms, if any, which you may have caused to be installed thereon. In the event of the termination or expiration of this License Agreement and/or the license granted hereby, you must immediately uninstall and return the Software to CorEMR, including all documentation together with all upgrades, enhancements, modifications and updates and shall not thereafter use the same. 3. Backup Copy; Transferability. You may make one backup copy of the Software for archival purposes to backup the Software, provided your backup copy is not installed or used on any computer. You may network this Software internally at the Facility for the sole and exclusive purpose of using the Software through commands, data or enhancements and/or upgrades, etc. are covered by the terms and conditions of CorEMR's then current License Agreement, and CorEMR may condition issuance thereof to you on your written acceptance of the then current license agreement. Updates to which you may be entitled under this Agreement shall not include any custom modifications or versions of the Software not released by CorEMR for general distribution to its clients. 8. Limited Warranty. CorEMR warrants that the Software will enable the properly trained users hereof to create, maintain, access, and make additions to electronic medical records and medical data, and will enable your properly trained personnel to backup the electronic medical records created thereby on site and/or at a remote location if proper equipment and backup software is used, for a period of ninety (90) days from the date of installation on the Server at the applicable Facility. Non -substantial variations of performance do not establish a warranty right. To make a warranty claim, you must notify CorEMR in writing of the specific defect or failure claimed within such ninety (90) day period. If the Software does not perform substantially in accordance with this Limited Warranty, the entire liability of CorEMR and your exclusive remedy shall be limited to either, at CorEMR's option, the replacement of the Software or the refund of the Initial Set Up Fee and Monthly Service Fees actually paid to date; and in any such event, you shall be obligated to return to CorEMR the Software. THIS LIMITED WARRANTY SHALL NOT APPLY TO ANY SOFTWARE UPDATES, UPGRADES, MODIFICATIONS, ENHANCEMENTS, PATCHES, PRE -RELEASES (BETA), TRYOUTS, EVALUATIONS OR PRODUCT SAMPLERS, ALL OF WHICH ARE LICENSED "AS IS," WITHOUT WARRANTY OF ANY KIND. THIS LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS, WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. 9. Additional Warranty Limitations. The limited warranty set forth in Section 8 above does not apply to: (a) use on any hardware not meeting CorEMR's specifications; or (b) bugs, defects, problems or failures caused by defects, problems or failures of hardware or software not provided by CorEMR or the negligence of the COUNTY or any person other than a CorEMR representative. The limited warranty set forth in Section 8 above does not include any warranty that (i) the Software will meet the COUNTY'S requirements; (ii) will operate in conjunction with other hardware and software utilized by the COUNTY; (iii) will be error free in all circumstances; and (iv) that non -material bugs will be corrected. 10. No Other Warranties. EXCEPT AS EXPRESSLY WARRANTED ABOVE IN SECTION 8, THE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR ARISING FROM COMMON LAW, CUSTOM, USAGE OR OTHERWISE, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON - INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, OR PERTAINING TO TITLE, INTEGRATION, ACCURACY, SECURITY OR AVAILABILITY. ANY EXPRESS WARRANTY MADE OUTSIDE OF THIS LICENSE AGREEMENT IS EXCLUDED AND SUPERSEDED BY THE TERMS OF THIS LICENSE AGREEMENT. COREMR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS, THAT IT IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. COREMR DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you. 11. Exclusion of Certain Damages. UNDER THIS LICENSE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, COREMR SHALL NOT IN ANY CASE BE LIABLE FOR ANY LOSS OF USE, LOST OR DAMAGED DATA, ANY INABILITY TO ACCESS OR RETRIEVE DATA, OTHER COMMERCIAL, MEDICAL OR ECONOMIC LOSS, OR FOR ANY DIRECT, INDIRECT, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, OR BUSINESS COSTS OF COVERAGE, OR EQUIPMENT DOWNTIME ARISING FROM OR RELATING TO THIS LICENSE AGREEMENT OR FROM THE USE OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION AND EVEN IF COREMR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS IN ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow certain exclusions or limitations of liability, so some of these may not apply to you. 12. Limitation of Liability. THE AGGREGATE LIABILITY OF COREMR ARISING FROM OR RELATING TO THIS LICENSE AGREEMENT AND/OR THE ACCOMPANYING AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE (REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER CONTRACT, WARRANTY, TORT, EQUITABLE AND/OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF ALL LICENSE FEES PAID BY YOU FOR THE SOFTWARE LICENSE GRANTED HEREUNDER AND THE INITIAL SET UP FEE AND MONTHLY SERVICE FEES PAID TO THE DATE OF CLAIM. COREMR SHALL NOT IN ANY CASE, BE LIABLE FOR ANY SPECIAL INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF COREMR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COREMR IS NOT RESPONSIBLE FOR LOST PROFITS OR REVENUE, LOSS OF USE OF SOFTWARE OR DATA, COSTS OF RE-CREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM, OR CLAIMS BY ANY PERSON OR LEGAL ENTITY OTHER THAN YOU. 13. Sole Remedy and Allocation of Risk. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS LICENSE AGREEMENT AND COREMR'S SOLE AND EXCLUSIVE LIABILITY UNDER THIS LICENSE AGREEMENT IS SET FORTH IN THIS LICENSE AGREEMENT. This License Agreement defines a mutually agreed-upon allocation of risk. Each of the parties acknowledge that the provisions of this License Agreement and accompanying Agreement were negotiated to reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the use of the Software. The warranty disclaimers and limitations in this License Agreement are intended to limit the circumstances of liability and are separately intended to limit the forms of relief available to the parties. 14. Taxes. In the event that any withholding, sales or use taxes or other taxes or government fees, assessments or charges are payable because of this License Agreement, or any license of the Software, or because of any payment by you, then you shall pay such taxes, fees, assessments and charges in addition to all other payments. DIFFERENT FROM, OR INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND THE ACCOMPANYING AGREEMENT ARE NOT BINDING ON COREMR AND ARE INEFFECTIVE. ONLY AUTHORIZED OFFICERS (NOT SALES PERSONS) OF COREMR HAVE AUTHORITY, ON BEHALF OF COREMR, TO MODIFY THIS LICENSE AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT. IN WITNESS WHEREOF the Parties have executed this License Agreement effective as of the day and year first above written. KITTITAS COUNTY COREMR, L.C. 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