Last Updated: September 19, 2017
This Clinical Dashboard Agreement (this “Agreement”) governs your and your Authorized Users’ (as defined below) use of the Clinical Dashboard (as defined below), which is made available to you (“Provider,” “you,” or “your”) by Physera, Inc. (“Physera,” “we,” “our,” or “us”) via the Site (as defined below). If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity. We and you are each referred to herein as a “Party,” and together are referred to herein as the “Parties.” BY CLICKING “I AGREE” AND COMPLETING THE REGISTRATION PROCESS, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE DASHBOARD OR THE SERVICES DESCRIBED HEREIN.
During the Term (as defined below), we will provide you access to, and usage of, our proprietary, web-based application (the “Clinical Dashboard”) through the website https://physera.com (the “Site”) for your internal business purposes only, subject to the terms and conditions of this Agreement (the “Services”).
During the Term, we may modify the Site, the Clinical Dashboard, the Content (as defined below) and/or the Services from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Clinical Dashboard or the Services
We accept support questions twenty-four (24) hours per day, seven (7) days per week via the Clinical Dashboard. Responses to support questions submitted through the Clinical Dashboard are provided during our normal business hours only. We attempt to respond to support questions within one (1) business day, although we do not promise or guarantee any specific response time.
As noted, the Services are offered to you at no cost to you; provided, however, that Physera reserves the right to charge fees for the Services at any time in the future, upon written notice to you.
The term of this Agreement commences on the Effective Date (as defined below) and continues in full force and effect until terminated pursuant to Section 3.2 (the “Term”). As used herein, “Effective Date” means the date you accept this Agreement.
In addition, Physera may terminate this Agreement or the Services portion thereof with immediate effect at any time if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
Upon termination of this Agreement, we will stop providing the Services to you, and you will discontinue all access to, and usage of, the Clinical Dashboard. Subject to our rights set forth in Section 4, upon written request, each Party shall either return to the other Party (or, at such other Party’s instruction, destroy and provide such other Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such other Party’s Confidential Information (as defined below) that are in its possession or control.
The following provisions will survive expiration or termination of the applicable Agreement: Section 3.3 (“Effect of Termination”); this Section 3.4 (“Survival”); Section 5 (“Intellectual Property”); Section 7 (“Confidentiality”); Section 8.2 (“Disclaimer”); Section 9 (“Limitation of Liability”); Section 10 (“Indemnification”); and Section 11 (“General Provisions”).
You will use any data and information about your patient that you submit through the Clinical Dashboard or that is otherwise made available to you through the Clinical Dashboard (the “Patient Data”) only for your internal business purposes, and only as permitted by this Agreement. Each Party shall comply with any applicable state patient privacy laws and with the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and the regulations promulgated thereunder, including those at 45 C.F.R. Parts 160 and 164 (collectively, “HIPAA”). If required by Applicable Law, the parties shall enter into a Business Associate Agreement.
Each Party shall employ commercially reasonable physical, administrative, and technical safeguards to secure Patient Data obtained and processed through the Clinical Dashboard from unauthorized use of disclosure.
We may monitor the performance and use of the Clinical Dashboard by all of our customers, combine this data (the “Aggregated Data”) with other data (including your data), and use such combined data in an aggregate and anonymous manner. You hereby agree that we may collect, use, and publish such aggregate data for the purpose of creating aggregated and anonymized statistics regarding our customer base. Examples of our use of such aggregate data include, but are not limited to, statistics aggregated across all of our clients on metrics such as size of data sets, the number of users of the Clinical Dashboard, revenue, number of transactions, and growth rates.
All right, title, and interest in and to the Site, the Services, the Clinical Dashboard, the Aggregated Data, and the Content, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain our sole and exclusive property. Subject to Section 4 and this Section 5, all right, title, and interest in and to Patient Data and all proprietary rights therein, shall be and remain your sole and exclusive property.
You shall not (and will not authorize, permit, or encourage any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Clinical Dashboard; (ii) modify, adapt, or translate the Clinical Dashboard; (iii) make any copies of the Clinical Dashboard; (iv) resell, distribute, or sublicense the Clinical Dashboard without our prior written permission in each instance, which we may withhold in our sole and absolute discretion; (v) remove or modify any proprietary marking or restrictive legends placed on the Clinical Dashboard; or (vi) use the Clinical Dashboard in violation of any applicable law or regulation, in order to build a competitive product or service, or for any purpose not specifically permitted in the Agreement.
Confidential Information” means: (i) with respect to Physera, the Clinical Dashboard, the Site, the Content, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; and (ii) with respect to you, your Patient Data, and any other non-public information or material regarding your legal or business affairs, financing, customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
At all times, the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into the Agreement; (ii) the execution, delivery, and performance of the Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) that it (and with respect to you, your Authorized Users) shall comply with all applicable statutes, laws, rules, and regulations (collectively, “Applicable Laws”) in performing its obligations hereunder, including, without limitation, the Health Insurance Portability and Accountability Act (“HIPAA”).
YOU ACKNOWLEDGE THAT ALTHOUGH THE SITE, THE DASHBOARD, THE SERVICES, AND THE CONTENT CAN BE USED AS AIDS TO YOU TO MAKE INFORMED BUSINESS DECISIONS, THEY ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL OR BUSINESS ADVICE OR YOUR EXERCISE OF YOUR OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT YOUR SOLE DISCRETION AND ELECTION. IF THE SITE, THE DASHBOARD, THE SERVICES, OR THE CONTENT INCLUDES ESTIMATES OR PREDICTIONS OF FUTURE EVENTS OR BEHAVIORS, PHYSERA MAKES NO GUARANTEES AS TO THE OCCURRENCE OF SUCH FUTURE EVENTS OR BEHAVIORS, OR THE ACCURACY OF SUCH PREDICTIONS. THE SITE, THE DASHBOARD, THE SERVICES, AND THE CONTENT, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PHYSERA NOR PHYSERA’S SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND PHYSERA HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT PHYSERA AND PHYSERA’S SUPPLIERS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
IN NO EVENT WILL PHYSERA BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
You will indemnify, defend, and hold Physera, its Affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, “Physera Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Physera Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your or your Authorized Users’ user of the Site, the Clinical Dashboard, the Services, or the Content in violation of this Agreement; (ii) your breach of any of your representations and warranties hereunder; (iii) your Patient Data; or (iv) your gross negligence or willful misconduct; provided, however, that the foregoing obligations shall be subject to our: (x) promptly notifying you of the Claim; (y) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (z) providing you with sole control over the defense and negotiations for a settlement or compromise.
Physera will indemnify, defend, and hold you, your Affiliates, and your respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, the “Provider Indemnitees”) harmless from and against any and all Losses incurred by any Provider Indemnitee in connection with a third-party Claim arising from any allegation that the use of the Site, the Clinical Dashboard, the Services, and/or the Content in accordance with the Agreement infringes or misappropriates any third-party patents, copyrights, trademarks, or trade secrets; provided, however, that the foregoing obligations shall be subject to your: (i) promptly notifying us of the Claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the Claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold any Provider Indemnitees harmless hereunder to the extent the Claim arises from or is based upon (a) your or your Authorized Users’ use of the Site, the Clinical Dashboard, the Services, or the Content not in accordance with this Agreement; (b) any unauthorized modifications, alterations, or implementations of the Site, the Clinical Dashboard, the Services, or the Content made by you or at your request (other than by us); (c) use of the Site, the Clinical Dashboard, the Services, or the Content in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (d) your Patient Data.
In the event that we reasonably determine that the Site, the Clinical Dashboard, the Services, or the Content are likely to be the subject of a Claim of infringement or misappropriation of third-party rights, we shall have the right (but not the obligation), at our own expense and option, to: (i) procure for you the right to continue to use the Site, the Clinical Dashboard, the Services, or the Content as set forth hereunder; (ii) replace the infringing components of the Site, the Clinical Dashboard, the Services, or the Content with other components with the equivalent functionality; or (iii) suitably modify the Site, the Clinical Dashboard, the Services, or the Content so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate the Agreement without further liability to you. This Section 10.3, together with the indemnity provided under Section 10.2, states your sole and exclusive remedy, and our sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
Neither Party may assign or otherwise transfer any of its rights or obligations under an Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer an Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of the Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, each Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
No failure or delay by either Party in exercising any right or remedy under an Agreement shall operate or be deemed as a waiver of any such right or remedy.
This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of law provisions thereof. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the state of California.
Any modification to this Agreement must be in a writing signed by Physera; provided, however, that we may modify the Incorporated Terms at any time by posting such modifications on the Site, and any such modification shall automatically go into effect immediately. It is your responsibility to check the Site periodically for such updates.
The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
If any provision of an Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of the Agreement shall remain in full force and effect. Any provision of an Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
You will not export or re-export, either directly or indirectly, the Site, the Clinical Dashboard, the Services, the Content, or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, you will not permit Authorized Users or any third parties to access or use the Services in violation of any United States export embargo, prohibition, or restriction.
This Agreement, including the BAA, and any Incorporated Terms, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.