THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “THE LICENSEE”) AND POINTCLICKCARE TECHNOLOGIES USA CORP. (“LICENSOR”) FOR THE QUICKMAR BRAND PRODUCTS AND SERVICES, WHICH INCLUDE COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED ONLINE OR ELECTRONIC DOCUMENTATION, PRINTED MATERIALS, AND WEB-BASED SERVICES (“SOFTWARE”). BY CLICKING ON THE “I ACCEPT” BUTTON, YOU AGREE TO THE TERMS SET FORTH IN THIS AGREEMENT. IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE CLICKING ON “I ACCEPT.” IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CLICK ON “I ACCEPT” AND DO NOT DOWNLOAD OR USE THE SOFTWARE. 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 RECORDS.
- The Licensor licenses the QuickMAR software (“QuickMAR”) together with any technical specifications, documentation, web-based platform, database, and related services that enables long term care facilities and other care providers (“Facility”) to manage the medications and the care of their residents (“Facility Software”).
- The Licensor licenses the QuickMAR Rx software (“QuickRx”) together with any technical specifications, documentation, web-based platform, database, and related services to PointClickCare pharmacy partners (“Pharmacy”) that enables Pharmacy to configure and manage the interaction of QuickMAR accounts (“Pharmacy Software”) used by their Facility customers (“Integrated Facility”).
- The Pharmacy Software uses a configurable interface (“Interface”) to connect the Pharmacy’s dispensing system and medication records to the Facility Software and establish a bi-directional exchange of data (“Records”) between both systems. (The “Pharmacy Software”, “Facility Software”, “Interface” and the “Records” are collectively referred to as the “Services”).
- As a prerequisite for Licensee to utilize the license granted by this Agreement and get access to the Services, Licensee must have an active account (“Active Account”) established in the Services database.
SECTION 1. LICENSE
1.1. License Grant. Licensor grants to Licensee and Licensee accepts from Licensor for the duration of this Agreement a non-exclusive, revocable, non-sublicensable and non-transferable license (the “License”) to download, install and use the Facility Software (if Licensee is a Facility) or Pharmacy Software (if Licensee is a Pharmacy) to access the Services subject to the terms and conditions of this Agreement, provided Licensee has an Active Account in the Services and the applicable fees for the use of the Services have been paid as described below.
1.2. Title. Subject only to the License, Licensor shall retain all right, title and interest, including all patent rights, copyrights, trademarks, and intellectual property rights, 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. License 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 quality 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.
SECTION 2. NO WARRANTY
THIS SOFTWARE IS PROVIDED BY LICENSOR “AS-IS” AND WITH ALL FAULTS ACCEPTED, WITH NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, OF ANY KIND. NO DISTRIBUTOR, DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS SECTION OR OTHERWISE INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. LICENSOR MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED, OR OTHERWISE (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE OR OTHER MATERIALS PROVIDED BY LICENSOR. LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR 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 THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERMISSIBLE DURATION. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE.
SECTION 3. SUPPORT AND MAINTENANCE
3.1. Support. During the period beginning on the date of installation of QuickMAR or QuickRX and ending with the termination of this Agreement, and provided Licensee has paid the applicable fees, Licensor shall provide reasonable 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.
3.2. Beta Site. Licensee has the option, if requested by Licensor, to participate in beta testing of subsequent releases of the Software and to provide feedback on functionality, interoperability, security, and other performance metrics as Licensee may reasonably request.
SECTION 4. FEES & PAYMENT TERMS.
4.1 Payor. The party responsible for payment of the Fees (as described below) for the Services is considered a payor (“Payor”). A Pharmacy is considered a payor if it is responsible for payment for the License granted to it and to an Integrated Facility per the terms of its Pharmacy Partner Agreement with Licensor. A facility is considered a payor if such facility is: (i) not integrated with a Pharmacy; (ii) was previously an Integrated Facility with a Pharmacy (the “Previous Pharmacy”) but has exited its relationship with the Previous Pharmacy and is continuing to use the Facility Software independent of the Previous Pharmacy; or (iii) has separately contracted with Licensor to be invoiced directly for all or a portion of the Fees.
4.2 Services Fees. The monthly fee (“Fee”) for use of the Services by a Payor shall be calculated by multiplying the number of residents listed in the Services database for Facility’s Active Account, times the monthly fee per resident as set forth in the rate schedule published on the QuickMAR/PointClickCare website or as otherwise specified in a Quote/Order Form to the applicable Payor. If no fee is specified, the default rate of $9.00 (USD) per resident shall apply. PointClickCare may increase Fees no more frequently than once annually upon sixty (60) days’ notice delivered via e-mail to the applicable Payor.
4.3 Taxes. The Fees exclude federal and state or provincial sales, excise, use, goods and services, and value-added or similar taxes (“Taxes”). Payor acknowledges that it shall be responsible for the payment of any such Taxes as may be applicable and as invoiced.
4.4 Payment Terms. PointClickCare shall submit a detailed invoice to the applicable Payor, for all Fees and related charges (if any) within ten (10) days after the end of each month. Payor, as applicable, shall remit payment within thirty (30) days of the invoice date.
SECTION 5. TERM AND TERMINATION.
5.1. Term. This Agreement shall commence on the latter of (i) the date the Active Account is established it being understood that without the Active Account, the Licensee cannot benefit from and/or utilize the License; or (ii) the first date in which this EULA was first accepted by Facility and/or Pharmacy and shall continue until terminated as provided herein.
5.2. Termination. Licensor may terminate this Agreement (a) if Licensee’s Active Account is terminated; (b) for cause if Licensee fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; or (c) immediately in the case of a breach of Section 1.4 (License Restriction). Sections 1.2 (Title), 1.4 (License Restriction), 2 (No Warranty), 4 (Fees and Payment Terms), 6 (Limitation of Liability), 7 (Indemnification), and 8 (General Provisions) shall survive termination of this Agreement. Upon such termination for breach, Licensee shall immediately cease all use of the Software and return or destroy all copies of the Software and all portions thereof and so certify to Licensor. Termination is not 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 THIS AGREEMENT TO THE CONTRARY, AND TO THE EXTENT SUCH EXCLUSIONS ARE PERMITTED BY APPLICABLE LAW, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, TORT LIABILITY, NEGLIGENCE, 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 IMMEDIATELY PRIOR TO THE DATE OF ACCRUAL OF THE CAUSE OF ACTION; (ii) FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT 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 DATA; 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. INDEMNIFICATION.
7.1 Indemnification by Licensor. PointClickCare agrees to defend Customer (“Indemnified Party”) from and against any claims, suits, losses, damages, costs, and expenses (including reasonable attorneys’ fees) brought by third parties alleging that Customer’s use of the Services as permitted under this Agreement infringes or misappropriates the intellectual property rights of a third party. PointClickCare will indemnify the Indemnified Parties against the resulting direct damages and attorneys’ fees finally awarded against Indemnified Parties by a court of competent jurisdiction as a result of a court‐approved settlement of an Infringement Claim, provided that Indemnified Parties must: (a) promptly give PointClickCare written notice of the Infringement Claim; (b) give PointClickCare sole control of the defense and settlement of the Infringement Claim (provided that PointClickCare may not settle any Infringement Claim unless the settlement unconditionally releases Indemnified Parties of all liability); and (c) provide PointClickCare all reasonable assistance, at PointClickCare’s expense. In the event of an Infringement Claim, or if PointClickCare reasonably believes the Services may infringe or misappropriate the rights of any third party, PointClickCare may in its discretion and at no cost to Indemnified Parties: (i) modify the Services so that they no longer infringe or misappropriate, without breaching PointClickCare’s warranties; (ii) obtain a license for Indemnified Party’s continued use of the Services in accordance with this Agreement; or (iii) terminate this Agreement in accordance with its termination provisions.
7.2 Indemnification by Licensee. Licensee will defend, indemnify and hold harmless Licensor and its affiliates, partners, suppliers, and their respective directors, officers, employees and agents from and against any third party claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or resulting from: (a) any personal injury, tort, medical malpractice, or other acts, errors, or omissions in the accuracy of any Records, medical orders and prescriptions, data, delivery of medical care or medical information or which otherwise arise out of, or are in any way connected with, Pharmacy or Facility’s or end-users’, data, access to or use of the Services, negligent or wrongful act(s), or violation of applicable laws; (b) any breach by Licensee of its obligations, duties, or responsibilities under this Agreement (c) any actions or omissions or violation of applicable laws on the part of Pharmacy in using or distributing the Software or any written material or in relation to the Services thereto including but not limited to any agreements, understandings and/or arrangements between Pharmacy and Integrated Facility and/or end users that PointClickCare is not privy to and/or a party to such agreements and/or arrangements; (d) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Licensor relating to the Software or Services, other than as authorized by Licensor in writing or made in material endorsed by Licensor.
SECTION 8. GENERAL PROVISIONS
8.1. Cumulative Remedies. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
8.2. Governing Law. This Agreement will be governed by the laws of the State of Delaware and the federal laws of the United States of America. To resolve any legal dispute arising from this Agreement, customer agrees to the exclusive jurisdiction of the State of Delaware.
8.3. Notices. All notices, statements, and reports required or permitted by this Agreement shall be in writing and deemed to have been duly given (a) when received, if personally delivered; (b) when sent, if by facsimile or e-mail if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours (with confirmation of transmission and provided e-mail shall not be sufficient for notices of an indemnifiable claim); (c) and upon receipt, if sent by certified or registered mail or a nationally recognized courier service, with written proof of delivery. Notices shall be addressed as follows:
If to Licensee: As set forth in purchasing/application information provided to Licensor prior to download.
If to Licensor: PointClickCare Technologies USA Corp.
5570 Explorer Drive
Mississauga, Ontario L4W 0C4
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.
8.5. Assignment. Licensee shall not assign or otherwise transfer any of its rights, obligations or licenses hereunder without the prior written consent of Licensor, including any assignment by operation of law as a result of the merger or acquisition of Licensee, and only upon the original Licensee’s fully divesting itself, himself or herself of all possession of the Software and all media and copies thereof. The Licensor may assign this Agreement or any of its rights or obligations hereunder. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties.
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 provision of this Agreement is prohibited by law or judged by a court of competent jurisdiction to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
8.9. Waiver of Rights. The failure 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 and 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.
8.11. Force Majeure. Either party shall be excused from any delay or failure in performance hereunder, except the payment of moneys by Licensee, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, floods, lightning, labor disputes and strikes, other labor or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, 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 DFAR 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.
USE OF THE SOFTWARE IS SUBJECT TO THE TERMS OF THIS LICENSE AGREEMENT. YOU SHOULD NOT DOWNLOAD OR USE THE SOFTWARE UNTIL YOU HAVE READ THIS LICENSE AGREEMENT. BY CLICKING ON “I ACCEPT,” YOU SIGNIFY THAT YOU HAVE READ THIS LICENSE AGREEMENT AND ACCEPT ITS TERMS.