Terms & Conditions
This Proprietary Software License Agreement (“Agreement”) is binding and effective as of the date agreed to ("Effective Date").
Beology Inc. ("Licensor") is granting the party agreeing to these terms and conditions ("Licensee") a license to use the Beology Software Platform (“Software”) subject to the terms and conditions contained herein:
1. License Terms. Licensee acknowledges that this is only a limited nonexclusive license. Licensee acknowledges that the licensed Software and licensed materials to which it applies may not be assigned, sub licensed, or transferred by the Licensee without prior written consent from Licensor which will not be unreasonably withheld nor delayed. No sub-license shall be required for employees of Licensee and members and patients in Licensee’s health network (“Authorized Users”) to access and use the Software. Licensee may not copy or cause or allow copies to be made or otherwise reproduce the Licensed Software, or any part thereof unless authorized by this Agreement (except such copying as is essential for system backup, testing, maintenance or recovery purposes).
2. Ownership. Licensor is and remains the owner of all titles, rights, and interests, including any intellectual property rights, in the Software.
3. License Fee. Licensor grants Licensee the license to use the Software at a price of $0.00 per month, inclusive of taxes. Licensor shall invoice Licensee on a monthly basis for transaction fees incurred during the applicable monthly period. Licensee shall pay all non-disputed invoices within 30 days of receipt.
4. Transaction Fee. Licensee agrees that Licensor will charge a transaction fee of 2.9% + $0.30 on any transactions performed through Licensor’s Software.
5. Service. Upon receipt of telephone or written notice(s) from the Licensee specifying failures or errors found in the licensed Software, and upon receipt of such additional information as Licensor may request, Licensor will act in an expeditious manner to correct defects in the Software.
6. Confidentiality. Licensee acknowledges and agrees that the Software constitutes confidential and proprietary information of Licensor and embodies trade secrets and intellectual property of Licensor. Licensee agrees to maintain the confidentiality of the Software. Licensee shall not, and shall cause its employees and agents not to, disclose or transfer the Software to any third party. Licensee agrees not to translate, decompile, reverse engineer, disassemble, modify, reproduct, rent, lease, lend, encumber, distribute, remarket, or otherwise dispose of the Software or any part thereof.
7. General Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Licensee represents and warrants that this Agreement is entered into by an employee or agent of such Licensee with all necessary authority to bind such entity to the terms and conditions of this Agreement.
a) Virus Warranty. Licensor represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to Licensee, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, Licensee’s sole and exclusive remedy, and Licensor’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.
b) Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6 (GENERAL WARRANTIES) AND 6(a) (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. Licensor will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Licensor. To the maximum extent permitted by law, neither Licensor nor any of its third party affiliates makes any representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any software or any content therein or generated therewith, or that: (a) the use of any Software will be secure, timely, uninterrupted or error-free; (b) the Software will operate in combination with any other hardware, software, system, or data; (c) the Software will meet Licensee’s requirements or expectations); (d) errors or defects will be corrected; or (e) except as expressly set forth in section 6(a) (virus warranty), the Software is free of viruses or other harmful components. No agent of Licensor is authorized to make any other warranties or to modify this limited warranty. The duration of statutorily required warranties, if any, will be limited to the shortest period permitted by law.
8. Limitation of Liability. Liability for damages to the Licensee or any third party for any cause whatsoever, and regardless of the form of action, shall be limited to the License Fees paid by the Licensee hereunder with respect to the affected software. Where permitted by law, Licensor shall not be liable to Licensee for any damages, including direct, compensatory, special, incidental, exemplary, punitive, or consequential damages, loss of data or data use,or lost profits connected with or resulting from this Agreement or Licensee's use of this software.
9. Indemnity. Licensee agrees to defend and indemnify Licensor and hold Licensor harmless from all claims, losses, damages, complaints, or expenses connected with or resulting from Licensee's business operations.
10. Term. This Agreement shall continue for a period of 1 year from the Effective Date and shall renew automatically for additional 1 year periods unless earlier terminated in accordance with the provisions of section 10 below. However, any provisions, such as outstanding payment obligations contained in sections 3 and 4, which by their intent are intended to survive the termination of this Agreement shall survive any termination of this Agreement.
11. Termination. Licensor has the right to terminate this License Agreement and Licensee's right to use this Software at any time upon any material breach of this Agreement by Licensee. Both Parties may terminate this Agreement at any time with 60 days written notice to the other party, provided that fees which are incurred or are still outstanding during the 60 days notice period must still be paid to the Licensor.
12. Ceasing Use of Software. Upon termination of this Agreement, Licensee must cease to use or access Software (provided that any patients of Licensee may continue to access their records through the patient portal using their individual logins).
13. No partnership or Joint Venture. This Agreement is neither intended to nor will it create a joint venture, partnership or other form of business association between the Parties.
14. Entire Agreement. This Agreement is the entire and exclusive agreement between Licensor and Licensee. This License Agreement replaces and supersedes all prior negotiations, dealings, and agreements between Licensor and Licensee regarding this Software.
15. Choice of Law. This License Agreement is governed by the law of California regardless of conflict of law provisions. The prevailing party in any action to enforce this Agreement shall be entitled to costs and attorneys’ fees.
16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
The parties intending to be legally bound, have caused their proper and duly authorized officers to execute and deliver this Agreement as of the day and year when submitted.