Preamble
This Agreement upon its acceptance is made between Licensee and ServiceLogix, Inc., a Colorado Corporation whose principle offices are herein provided. ServiceLogix, Inc. is the owner of NPPESData.com.
Definitions
"Agreement" refers to this Service and License Agreement.
"Licensee" or "you" or "your" refer collectively to you, your organization, its subsidiaries, employees, contractors and affiliates, or any party subject to the terms of this Agreement by virtue of its acceptance by you.
"Company" refers collectively to ServiceLogix, Inc., a Colorado Corporation and NPPESData.com a web site and service owned and operated by it.
"CMS Data" refers to NPPES data as provided by the Centers for Medicare and Medicaid Services under the Freedom of Information Act (hereinafter, "FOIA").
"Service" and "Services" refer collectively to NPPESData.com and the services provided through it under this Agreement.
"Modified Data" refers to CMS Data that has been cleaned and reformatted by the Company and provided as part of the Service.
"Production Environment" refers to a software system or collection of software systems and the computing resources utilized in its/their provision that is/are used in the active business operations of a Licensee or Sub-Licensee by its employees, subsidiaries, affiliates or contractors.
"Multi-Tenant System" refers to a software system that is provided by Licensee in its own Production Environment for use by any party not engaged in the active business operations of the Licensee, including customers, clients or the general public.
"Software Package" refers to a software system sold under a single name by Licensee to more than one third party that is installed in any third party's Production Environment.
"Work Product" refers to the structure, format, packaging, and delivery mechanisms of the Modified Data, the Modified Data itself, and any other intellectual property provided by the Company and delivered to Licensee as part of the Service.
"Sub-Licensee" refers to any third party who is provided the Modified Data or other Work Product by virtue of a redistributable license held by the Licensee.
Recitals
This agreement is a contract between you and the Company to provide Services to you. When you engage the Company, you are paying for one or more Services that it provides, including:
- Cleaning, modifying and reformatting the CMS Data,
- Providing online access to Modified Data,
- Storing and maintaining the Modified Data on its servers,
- Providing update files to bring the Modified Data up to date,
- Maintaining your account so that you may access the Modified Data,
- Providing communications of changes in the Modified Data, and
- Providing documents, technical guides, software and other Work Product.
Ownership and Property Rights
The Company does not own and makes no claim to the CMS Data or the content of the Modified Data.
You understand that substantially the same data content is available for no charge under FOIA data dissemination from the Centers for Medicare and Medicaid Services, a division of the U.S. Department of Health and Human Services.
The Company makes claim only to its Work Product as provided by the Service. All licenses granted under this Agreement are licenses for use of Company's Work Product exclusive of the content of the CMS Data.
You agree that the Work Product is the sole property of the Company and that your use of it shall be governed exclusively by this Agreement.
Grant of License - General
You may contract with the Company to provide one or more licenses to the Work Product. The license granted by the Company to you depends on the type of Service you have purchased.
Based on the purchased Service, the company will provide access through its web site to the Modified Data and other Work Product that you are eligible to access based upon the type of Service you have purchased. At the time of sale, the company will display and require you to agree to this Agreement.
At your request and for an additional fee, the Company will also provide the Modified Data on computer-readable media such as DVD.
Regardless of the Service selected and the means of delivery, the following terms and conditions apply to each license respectively:
Grant of License - Single Download
The Company grants you license to install the Modified Data on a single server or single clustered server combination in a Production Environment. In addition, the Company grants you license to install the Modified Data on as many workstations and non-production servers as is required for purpose of software development, testing, backup and business continuity.
The Company also grants you license to use any other Work Product provided to you by the Company and make copies of it, but not to resell or redistribute it to any third party.
In no case does this license grant you the right to resell, re-distribute or provide the Modified Data or any Work Product to any third party.
Grant of License - Subscription
The Company grants you license to install the Modified Data on a single server or single clustered server combination in a Production Environment. In addition, the Company grants you license to install the Modified Data on as many workstations and non-production servers as is required for purpose of software development, testing, backup and business continuity.
The Company also grants you license to run and install any update files provided by the Company as part of the Service.
The Company also grants you license to use any other Work Product provided to you by the Company and make copies of it, but not to resell or redistribute it to any third party.
In no case does this license grant you the right to resell, re-distribute or provide the Modified Data or any Work Product to any third party.
Grant of License - Multi-Tenant
The Company grants you license to install the Modified Data on a single server or single clustered server combination as part of a single Multi-Tenant System. In addition, the Company grants you license to install the Modified Data on as many workstations and non-production servers as is required for purpose of software development, testing, backup and business continuity.
The Company also grants you license to run and install any update files provided by the Company as part of the Service.
The Company also grants you license to use any other Work Product provided to you by the Company and make copies of it, but not to resell or redistribute to any third party.
In no case does this license grant you the right to resell, re-distribute or provide the Modified Data or any Work Product to any third party. However, you may provide the data as accessed by query, in part, to users of the licensed Multi-Tenant System.
Grant of License - Redistributable
The Company grants you license to install the Modified Data on any number of servers or clustered server combinations as part of a Software Package that is sold by you to any Sub-Licensee.
In addition, the Company grants you license to install the Modified Data on as many workstations and non-production servers as is required for purpose of software development, testing, backup and business continuity, including those owned by any Sub-Licensee.
The Company also grants you license to run and install any update files provided by the Company as part of the Service on your own or that of any Sub-Licensee.
The Company also grants you license to use any other Work Product provided to you by the Company and make copies of it, but not to resell or redistribute to any third party except to a Sub-Licensee as required for installation of the Modified Data.
You agree to inform each Sub-Licensee of your obligations under this Agreement, to disclose the source of the Modified Data to any Sub-Licensee at their request, and to inform each Sub-Licensee of the restrictions of this license, including those of resale or redistribution.
In no case does this license grant you the right to resell the Modified Data or Work Product as a separate product or service. You may, however, provide the Modified Data as an individual feature of a Software Package for which you charge a reasonable markup over and above the amortized cost of this license.
Licensee Obligations
When you register for the Service, you agree to provide true and accurate information about yourself, your organization and your use or intended use of the Modified Data or Work Product and you agree that your failure to do so shall release the Company of any further obligation under this Agreement.
Data Archival
For subscription services, you understand that the Company will keep a maximum of three months of the Modified Data available for download by you during the term of this agreement. The Company adheres to a data archival policy that dictates that data over three months old shall be archived. You can request access to downloads older than three months for an additional fee.
Technical Support
You agree that the Company is under no obligation to provide support or assistance to you as relates to the implementation of the Modified Data, but that any support provided to you shall be governed by the Company's then current Support Policy which may change from time to time.
License Enforcement
You agree that you will furnish the Company at its request information about the nature of use, method of deployment, availability, location, end users, and other requested information pertaining to the use of the Modified Data and/or Work Product by you or any Sub-Licensee.
You agree that any intentional violation of the terms of the license granted herein shall constitute a breach of this Agreement by you. You agree that in the case of such breach, your minimum liability to the Company for damages shall be the cumulative difference in price (as calculated from the date of first breach) between all licenses and renewals you have purchased and the license that covers or would have covered your actual use multiplied by ten.
Disclaimer of Warranty
The company makes no warranty as to the accuracy, reliability, or suitability of the Service, Modified Data or Work Product.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICE, WORK PRODUCT AND MODIFIED DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY.
The Company shall not be responsible for failures of networks or servers used to deliver the Service except that the Company shall make a reasonable attempt to ensure reliable access to your account and to downloads available via the Service.
The Company shall, when notified of a defect in the Service, Modified Data or Work Product, make every reasonable attempt to mitigate such defect in a timely manner.
Waiver of Liability
Licensee shall indemnify and hold the Company, its subsidiaries and affiliates, and their respective directors, officers, shareholders, employees and agents harmless against any and all claims, damages or liability, whatsoever, suffered or incurred by the Licensee in connection with any claim of infringement of intellectual property rights or other claim by any third party against Licensee with respect to materials provided by the Service.
Licensee agrees that should the Service become unavailable because of the injunction or other order of any court or if for reasons beyond its control it becomes imppossible for the Company to perform the Services covered under this Agreement, Licensee shall forfeit all rights granted under this agreement without refund or further compensation.
Licensee agrees that should the Service become unavailable because of insolvency or dissolution of the Company or termination of the Service, Licensee's sole remedy shall be to obtain for a reasonable fee a copy of the software used to provide the Modified Data so that it may itself perform the Services covered under this Agreement, and that upon delivery of such software, the obligations of the Company shall have been deemed to have been met and Licensee shall have no further claim against the Company.
In no event shall the Company be liable for the payment of any incidental, consequential, punitive, exemplary, or tort damages resulting from any default in the performance of its obligations under this Agreement.
The entire and aggregate liability for all other claims against the Company under this Agreement shall not exceed the total amount paid by Licensee to the Company under this Agreement
Term of Agreement
For subscription services, the term of this Agreement ("Term") shall commence on the date of sale and shall end on the subscription end date specified on the bill of sale, invoice or in the account management facilities of the Service.
For all other services, the term of this Agreement shall commence on the date of sale and shall end upon the delivery of Work Product to the Licensee.
Assignment
Either Party may assign in whole or in part their rights and/or obligations under this Agreement without prior notice. This Agreement shall inure to the benefit of and be binding upon the heirs, successors, and assigns of the respective parties.
Relationship of the Parties
This Agreement shall neither constitute either party as an agent, employee, contractor, or partner of the other party for any purpose whatsoever, nor shall either party hold himself out as an agent, employee, contractor, or partner of the other party. It is understood between the parties that each party is an independent business and in no way authorized to make a contract, agreement, warranty or representation on behalf of the other party or create any obligation express or implied on behalf of the other party.
Notice
Notices shall be in writing and shall be deemed delivered in person when delivered by courier, commercial express delivery service or certified mail to ServiceLogix, Inc., 5839 S Galena St, Greenwood Village, CO 80111, for Company, and for Licensee to the physical or e-mail address provided by Licensee as part of the registration process of the Service. Notices shall be deemed given on the date of receipt by written or electronic delivery confirmation.
Governing Law; Consent to Jurisdiction
This Agreement shall be governed by the laws of the State of Colorado, without regard to any rules of conflict or choice of laws. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in or having jurisdiction over the County of Arapahoe, State of Colorado.
Entire Agreement
This Agreement, including the exhibits hereto, contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties concerning the subject matter of this Agreement.
Modifications
The Company may from time to time make changes to the terms of this Agreement. The Company shall provide timely notice of any changes to this Agreement and such changes shall be deemed to be automatically accepted by and be binding upon Licensee by virtue of the continued use of the Service by Licensee after such notification occurs.
Dispute Resolution
The parties agree to cooperate in good faith to attempt to resolve any disputes that may arise under this Agreement by first attempting to resolve the dispute through the efforts of the principal contacts, and then making reasonable efforts to use mediation or other alternative dispute resolution methods to resolve the matter, before seeking other legal remedies.
Miscellaneous
The failure of a party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect. Neither party shall be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the control of such party, which such circumstances shall include (without limitation) natural disaster, terrorism, war, declaration of governments, labor disputes, transportation delays, any acts or omissions of any government or governmental authority, declarations of governments, injunctions, restraining orders or other court actions, and any other events reasonably beyond the control of such party. All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The section titles and paragraph headings in this Agreement are for convenience only and have no legal or contractual effect. Each party’s respective obligations, representations and warranties under this Agreement which are not, by the expressed terms of this Agreement, fully to be performed during the term of this Agreement shall survive the termination or cancellation, as the case may be, of this Agreement. Both parties shall, during and after termination of this Agreement, upon reasonable notice, furnish such information and proper assistance as may reasonably be required by either party in connection with this Agreement.