Terms and Conditions
BestConsent SOFTWARE-AS-A-SERVICE AGREEMENT
This BestConsent Software-as-a-Service Agreement (the “Agreement”) is made and effective as of the date the authorized representative of the subscriber (the “Subscriber”) identified in the order information above (the “Order Information”) accepts this Agreement by and between Blueware, Inc., a Florida corporation (“Blueware”), whose address is 2290 West Eau Gallie Blvd. Melbourne Fl 32935, and the Subscriber whose address set forth in the Order Information.
1.1 Admissions Window means each location within the Healthcare Facility or at home where a patient can check-in as having arrived.
1.2 BestConsent Service means the services provided from time to time by Blueware through its BestConsent Software-as-a-Service offering.
1.3 Confidential Information means all confidential or proprietary information of, about, or relating to: (A) Blueware or its business, customers other than Subscriber, technologies or properties, including, but not limited to know how, trade secrets; source code; object code; documentation concerning the BestConsent Service; customer lists; methods of operation and development; information relating to the cost or charges for products or services; and employee and contractor compensation; and (B) Subscriber and its business and Patients, including, but not limited to, PHI of Patients; provided that, “Confidential Information” shall not, in any event, include any information that becomes generally known or publicly available upon reasonable inspection other than information that became generally known or publicly available as a result of a breach of an obligation of confidentiality to any of Blueware or Subscriber.
1.4 Content means any information uploaded or provided to the BestConsent Service by any of Subscriber or its Patients.
1.5 Disclosing Party means: (A) Blueware where the Confidential Information is owned or assertable by Blueware or any of its customers other than Subscriber; or (B) Subscriber where the Confidential is owned or assertable by Subscriber or a Patient.
1.6 EMR means electronic medical record provider(s) identified in the Order Information, if any.
1.7 Healthcare Facility means the healthcare facility identified in the Order Information.
1.8 HIPAA means Health Insurance Portability and Accountability Act of 1996, as amended and supplemented, and the regulations promulgated in accordance therewith.
1.9 Patient means each patient of Subscriber.
1.10 Prevailing Party means, generally, the party in any litigation, mediation, arbitration or other controversy (each being a “Dispute”) that prevails on substantially the majority of the issues in the Dispute; provided that, if one party provides an offer of judgment or settlement in any Dispute and the outcome of the Dispute is not material different that such offer, the party making the offer shall be the Prevailing Party in such Dispute. For purposes of this definition, materially different shall include, in the case of money damages, the outcome of the Dispute provides for damages in excess of 115% of such offer.
1.11 PHI means protected health information as that term is defined by HIPAA.
1.12 Project Manager means each natural person that is: (A) a Subscriber Related Party; and (B) designated by the Subscriber from time to time in writing to Blueware as having the capabilities and authority to assist with the implementation and operation of the BestConsent Service at the Healthcare Facility and to make decisions for Subscriber concerning this Agreement and the BestConsent Service.
1.13 Receiving Party means: (A) Blueware where the applicable Confidential Information is owned or assertable by Subscriber or any Patient; or (B) Subscriber in the case of where the applicable Confidential Information is owned or assertable by Blueware or any of its customers other than Subscriber.
1.14 Subscriber Related Party means an employee, officer, manager, partner or principal of Subscriber.
1.15 Security Emergency means a violation of this Agreement by any of Subscriber, a Subscriber Related Party or a Patient that (A) could disrupt any of: (1) Blueware’ provision of the BestConsent Service; (2) the business of other subscribers to the BestConsent Service; or (3) the network or servers used to provide the BestConsent Service; or (B) provides unauthorized third party access to any of the BestConsent Service, Confidential Information, or confidential information of any other Blueware customer or patient of any other Blueware customer.
2. BestConsent Software as a Service. Blueware grants Subscriber by and through its Project Manager, Subscriber Related Parties and Patients a non-exclusive, non-transferable, limited right to access and use during the Term: (A) the BestConsent Service during the Term of the Agreement solely for Subscriber’s internal business purposes and for the operation and management of the Healthcare Facility; and (B) training videos for Subscriber Related Parties and Patients.
3. Subscriber Obligations. Subscriber shall provide, prompt and timely assistance and cooperation to Blueware to enable Blueware to setup and provide the BestConsent Service, including, but not limited to: (A) making Subscriber Related Parties and the Healthcare Facility available to Blueware during normal business hours concerning matters relating to implementation and testing, and operation, of the BestConsent Service, and Customer’s operations and requirements pertaining thereto; (B) promptly making decisions about various matters relating to the Services; (C) promptly providing Subscriber with information, responses to inquiries and requests, and information about and access to EMR service providers; (D) determination of, and compliance with, laws, statutes and regulations applicable to Subscriber’s utilization of the BestConsent Service; (E) except as expressly set forth in the Order Information, providing all hardware and software necessary or advisable for accessing, implementing and utilizing the BestConsent Service; and (F) appointing and, at all times during the Term, maintaining: (1) a Project Manager; and (2) an executive sponsor (who shall be a Subscriber Related Party with executive level status) to assist with support of the implementation, communications with Subscriber Related Parties relating to, and ongoing utilization of the BestConsent Service. Subscriber shall be entitled to rely on decisions made by, and responses from, the Project Manager.
4. Content. Blueware makes no claim to any Content and, to the extent the Content is the property of Subscriber at the time it is uploaded to the BestConsent Service, it remains and shall at all time remain the property of Subscriber. Blueware does not screen or otherwise analyze or review Content at or prior to the time it is uploaded to the BestConsent Services. Blueware’ sole obligation concerning the Content shall be as expressly set forth in this Agreement. Subscriber provides Blueware with a fully paid perpetual and non-terminable license to: (A) utilize the Content to: provide the BestConsent Services; undertake Blueware’ other obligations under this Agreement; and to generate, publish and otherwise utilize aggregate anonymized information about the BestConsent Service (e.g., numbers of users, etc.); and (B) make copies of the Content for the foregoing.
5. Changes to and Suspension of BestConsent Service. Blueware shall have the right at any time, and from time to time, to:
(A) modify or discontinue, temporarily or permanently, any feature associated with the BestConsent Service, with or without notice, except that Blueware shall provide Subscriber with not less than ninety (90) days advance written notice of any modification that materially reduces the functionality of the BestConsent Service; and
(B) temporarily suspend access to the BestConsent Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor provide not less than two (2) business days’ notice prior to any non-emergency suspension.
Blueware shall endeavor to confine planned operational suspensions to minimize disruption to Subscriber.
6. Limitations on Access and Utilization of BestConsent Service. Subscriber shall not, and shall not permit any of its Subscriber Related Parties or patients to:
(A) access or use the BestConsent Service via any automated means, including, without limitation, using any scripted, robotic or software means, except for such scripts or processes as may be provided by Blueware from time to time;
(B) reproduce, duplicate, copy, sell, resell or exploit access to the BestConsent Service, use of the BestConsent Service, or any portion of the BestConsent Service, including, but not limited to, the software coding or visual design elements;
(C) modify, reverse engineer, adapt or otherwise tamper with the BestConsent Service or modify another website so as to falsely imply that it is associated with the BestConsent Service, Blueware, or any other software or service provided by Blueware;
(D) knowingly use the BestConsent Service in any manner that: (1) infringes or may infringe any third party intellectual property or moral rights; or (2) is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement, including, but not limited to, in a manner that is in violation of HIPPA; and
(E) knowingly use the BestConsent Service to upload, post, host, or transmit any unsolicited bulk e-mail (e.g., spam), viruses, destructive, malicious or self-replicating computer software.
7. Ownership of BestConsent Services and Underlying Software. Ownership of the BestConsent Service and the software utilized to provide the BestConsent Service, as well as all intellectual property and moral rights therein and pertaining thereto shall be and remain the property solely of Blueware and, except for Subscriber’s right to utilize the BestConsent Service on the terms set forth herein, none of Subscriber, any Subscriber Related Party or any patient shall have or receive any rights or interests in any of the foregoing.
8. Obligations Concerning Confidential Information. Each Receiving Party shall:
(A) not disclose, or allow any person or entity access to, the Disclosing Party’s Confidential Information;
(B) not make any use, commercial or otherwise, of the Disclosing Party’s Confidential Information;
(C) restrict access to the Disclosing Party’s to the Receiving Party’s officers, managers, directors, employees and independent contractors who have a bona fide need to know the Confidential Information for purposes of this Agreement;
(D) exercise reasonable diligence to maintain the confidential, secret or proprietary nature of all Confidential Information and to prevent its use, utilizing such security measures as may reasonable under the circumstances, but not less than that utilized by the Receiving Party for its own Confidential Information.
Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information: (AA) in connection with the proper undertaking of its duties hereunder, it being understood that the BestConsent Service will disclose Confidential Information to Subscriber’s EMR or other third parties in its normal operation; and (BB) if and only if: (1) compelled by, and solely to the minimum extent necessary to comply with, bona fide unaffiliated third party initiated legal process (including, but not limited to, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar legal process); and (2) reasonable advance written notice is provided to the Disclosing Party (to the extent not prohibited by applicable law) including the relevant details of the legal process so as to enable the Disclosing Party to protect its rights in and to the subject Confidential Information. The foregoing restrictions shall not, in any event, be deemed to prevent Blueware from undertaking its obligations, or exercising the rights granted to it, pursuant to this Agreement.
9.1 Initial Fee and Annual Renewals. In consideration for access to the BestConsent Service, Subscriber shall pay Blueware (collectively being the “Fees”): (A) a startup fee of $500 per Healthcare Facility on the Effective Date; and (B) in advance on a monthly basis, first on the Effective Date and thereafter on or before the same day each calendar month during the Term, a fee of: (1) $189.00 per Admissions Window per Healthcare Facility; plus (2) $95.00 for each EMR to which Patient Content is being transmitted. No reduction in, or refund of, Fees shall be due in the event of a termination of this Agreement by Subscriber prior to the end of any period for which Fees have been paid.
9.2 Payment. Amounts due Blueware are to be paid by credit card, ACH or e-check. Subscriber and, if the cardholder is not the Subscriber, such cardholder agrees that Blueware may automatically charge each credit provided to Blueware from time to time for amounts due Blueware at the time an invoice is transmitted or made available to Subscriber. Any balance due Blueware on an invoice is due and payable upon receipt of the invoice. Subscriber shall be deemed to have received the invoice when it was sent via e-mail to Subscriber. Payments received by Blueware more than fifteen (15) days from when they are due shall be subject to a late fee of the greater of 5% of the amount due or $50.00, to offset Blueware’ costs incurred in connection with late payments, and all amounts due and unpaid shall bear interest from the date due until paid at the lesser of 1.5% per month or the highest rate permitted by applicable law; provided that, if Blueware holds a credit card or debit card for payment, no late fee or interest shall be due unless the amount due was refused or rejected. Subscriber and, if the cardholder is not the Subscriber, such cardholder agrees that Blueware may automatically charge each credit card or debit card provided to Blueware from time to time for Fees and any other amounts due Blueware under this Agreement at the time such amounts become due. If any check is returned or any credit card or debit card transaction is rejected or refused for any reason, Blueware may charge Subscriber a fee of $35.00 per returned, rejected or declined transaction. If Subscriber or the card holder discovers any incorrect charges to any Credit Card or debits to any bank account, it shall be reported to Blueware in writing within 60 days of the date a disputed charge first appears on the cardholder’s bill or the applicable bank statement. Blueware is not responsible for bank or other fees charged to the cardholder in connection with the billing hereunder.
10. Term and Termination. The term (the “Term”) of this Agreement shall commence on the Effective Date and continue until terminated in accordance herewith. Either party may terminate this Agreement: (A) in accordance with Section 17; or (B) on not less than thirty (30) days written notice prior to the other party and, in such event, termination shall be effective on the day prior to the date when Fees next become due and payable. Upon a termination of this Agreement for any reason whatsoever, Subscriber shall immediately cease using the BestConsent Service. No termination shall affect the rights of Blueware or Subscriber arising prior thereto.
11. WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH HEREINBELOW, BLUEWARE MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER, WHETHER EXPRESS OR IMPLIED, CONCERNING OR RELATING TO ANY OF THE BESTCONSENT SERVICE, INCLUDING, BUT NOT LIMITED TO: (A) NO WARRANTIES OF MERCHANTABILITY; (B) NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) NO WARRANTY CONCERNING INTELLECTUAL PROPERTY RIGHTS. BLUEWARE ONLY WARRANTS THAT IT CAN PROVIDE SUBSCRIBER WITH ACCESS TO THE SERVICE.
12. Hardware Terms and Conditions. If and to the extent the Order Information provides for, in addition to the provision of the BestConsent Service, the sale of hardware and related components by Blueware to Subscriber, then the provisions of this Section 12 shall be applicable thereto.
12.1 No Termination of Hardware Purchase. Subscriber may not cancel the purchase of the goods identified in the Order Information (the “Goods”) at any time as to all or any part of the Goods, whether or not such Goods have not been shipped to Subscriber.
12.2 Purchase Price. The price for the Goods set forth on the Order Information (the “Price”) excludes all taxes, unpaid duties and other charges, such as shipping and insurance charges. The Price is in addition to the Fees and shall be paid on or within fifteen (15) days of the delivery of the Goods to Subscriber. The provisions of Section 9.2 shall apply to payment of the Price. Any deposit made by Subscriber shall be deemed earned by Blueware immediately.
12.3 Shipment. Blueware shall: (A) use a common carrier selected by Blueware; and (B) ship the Goods: (1) freight collect or prepaid and bill, at Blueware’s option; and (2) F.O.B. Blueware’s (or Blueware’s vendor’s) location.
12.4 Inspection and Acceptance. Subscriber shall inspect the Goods on or within five (5) days of the date of delivery. Acceptance of the Goods by Subscriber shall be deemed to have occurred if no written notice of non-conformance (specifically detailing any non-conformance) is received by Blueware on or within ten (10) days of the date of delivery. The utilization of the Goods by Subscriber shall be deemed an acceptance of the Goods. In the event of Subscriber’s proper rejection of any Goods, Subscriber shall hold the rejected Goods at Subscriber’s risk and expense until such time as Blueware provides instructions to Subscriber concerning the disposition of the rejected Goods. If Blueware fails, within a reasonable time, to furnish Subscriber or Subscriber’s agent with instructions as to the disposition of the properly rejected Goods, Subscriber may return the rejected Goods to Blueware.
12.5 Transfer of Manufacturer’s Warranty. As set forth in Section 11, Blueware makes no warranties whatsoever concerning the Goods. Blueware shall assign and transfer to Subscriber the manufacturer’s limited warranties concerning the Goods and Subscriber shall look solely and exclusively to such manufacturers for such warranties.
13. Subscriber Representations, Warranties and Covenants. Subscriber represents and warrants to Blueware that each Project Manager and each executive sponsor shall at all times during the Term be and remain, a Subscriber Related Party and that each person who is not a Subscriber Related Party and utilizes the Services at or from the Healthcare Facility shall be a Patient or guardian of a Patient. Subscriber shall cause each Project Manager to: (A) utilize the BestConsent Service solely for and in connection with Subscriber’s internal business purposes; (B) provide (and maintain) accurate information concerning each Patient in the BestConsent Service; (C) maintain the confidentiality and security of each password utilized to access to BestConsent Service on behalf of Subscriber; (D) utilize the username or access credentials for the BestConsent Service solely for the Project Manager to whom it is assigned; and (E) immediately notify Blueware in the event any access credential or password is compromised, lost or stolen, and change the applicable access credential or password.
14. LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF INFRINGEMENT BY ONE PARTY OR ITS EMPLOYEES OF THE OTHER’S INTELLECTUAL PROPERTY, NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY. IN ADDITION, IN NO EVENT SHALL THE DAMAGES PAYABLE BY BLUEWARE TO SUBSCRIBER EXCEED THE FEES PAID BY SUBSCRIBER TO BLUEWARE IN THE PRIOR 12 CALENDAR MONTHS. EACH PARTY ACKNOWLEDGES THAT:
(A) THIS SECTION REFLECTS AN INFORMED, VOLUNTARY ALLOCATION OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THE ARRANGEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF THE BESTCONSENT SERVICE AND STORAGE AND DISSEMINATION OF THE CONTENT; AND
(B) SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES; AND
(C) THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
15. Indemnification. Blueware shall hold Subscriber and its officers, directors, managers, employees, contractors and agents, collectively and individually, harmless from any claims, obligations, losses, damages, liabilities, fines, costs and expenses (including, without limitation, reasonable attorney’s fees pretrial, trial and appellate) (collectively “Claims”) arising out of or incurred as a result of or in connection with Blueware’ breach of this Agreement. Subscriber shall hold Blueware and its officers, directors, managers, employees, contractors and agents, collectively and individually, harmless from any Claims arising out of or incurred as a result of or in connection with any Patient’s or Subscribers breach of this Agreement.
16. Entire Agreement, Waiver and Modification. This Agreement sets forth the entire understanding of the parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth herein. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. No alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged except as set forth in Section 17.
17. Blueware Amendment by Notice. Blueware may at any time and from time to time amend this Agreement by providing not less than thirty (30) days advance notice (the “Amendment Notice”) to Subscriber setting forth the substance of such amendment. If Subscriber determines the amendment to be unacceptable to Subscriber, Subscriber shall provide written notice to Blueware within 15 days of the Amendment Notice. If no timely objection to the Amendment Notice is provided by Subscriber, the amendment shall be effective as of the date set forth in the Amendment Notice and any Subscriber Related Party’s or Patient’s use of any of the BestConsent Service on or after such date shall confirm acceptance of such amendment. If a timely objection to the Amendment Notice is provided by Subscriber: (A) Blueware may elect by written notice to Subscriber on or within 15 days of Subscriber’s timely objection to withdraw the amendment as concerns Subscriber; or (B) if Blueware does not timely provide a notice of withdrawal of the amendment to Subscriber, then Subscriber may terminate this Agreement upon fifteen (15) days written notice to Blueware.
18. Successors and Assignment. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and, except as otherwise specifically provided in this Agreement, their respective permitted successors and assigns. Subscriber may not assign or delegate its, his or her, rights or obligations under this Agreement. Blueware may assign and delegate its rights and obligations under this Agreement without notice to Subscriber at any time and from time to time.
19. Notices. Any consent, waiver, notice, demand, request or other instrument required or permitted to be given and effective under this Agreement shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after: (1) transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (2) in the case of a notice provided by Blueware, being: (a) sent to the e-mail address for the Subscriber set forth in the records for the BestConsent Service; and (b) posted to the BestConsent Service website; (C) the next business day after transmission by facsimile (with receipt showing successful transmission) to the facsimile number for such party set forth in the records for the BestConsent Service; or (D) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth in the records for the BestConsent Service. Any party may change its address or facsimile number for notices by changing it on the records for the BestConsent Service.
20. Captions. The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement.
21. Partial Invalidity. If any term or provisions of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
22. Applicable Law and Venue and Forum. The provisions of this Section are a material part of the agreement of the parties. But for the provisions of the Section, Blueware would not enter this Agreement or provide Subscriber or any Patient with access to the BestConsent Service. THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED UNDER AND BY THE LAWS OF THE STATE OF FLORIDA FOR CONTRACTS EXECUTED AND TO BE PERFORMED IN FLORIDA. EXCLUSIVE VENUE FOR ANY LEGAL ACTION AUTHORIZED HEREUNDER OR RELATING HERETO SHALL BE IN ORANGE COUNTY, FLORIDA.
23. Third Party Beneficiaries. There are no intended, express or implied third party beneficiaries to this Agreement.
24. WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR INDIVIDUAL AND COLLECTIVE RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT AND THE BESTCONSENT SERVICE.
25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same Agreement.
26. Attorneys’ Fees. In the event any litigation, mediation, arbitration, or controversy between the parties hereto arises out of or relates to this Agreement or the BestConsent Service, the Prevailing Party in such litigation, mediation, arbitration or controversy shall be entitled to recover from the other party all reasonable attorneys’ fees, expenses and suit costs, including any associated with any appellate proceedings and any post-judgment collection proceedings.
27. Survival. Sections 9 through 26 shall survive the termination, cancellation or expiration of this Agreement by whatever means for whatever reason.
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