- Definitions and interpretations can be found at http://www.dataprotection.com/VL_Software/VL_service_agreement_definitions.html. This agreement uses the definitions and interpretations dated 11/10/2009.
2. MICROWIZE TECHNOLOGY, INC. SHALL HAVE NO LIABILITY SHOULD THERE BE ANY DELAY IN THE PROVISION OF THE SERVICE.
- Microwize Technology, Inc. does not make any independent representations or warranties with respect to any Customer Equipment. Any third party warranties are the exclusive remedies of Customer with respect to such Equipment.
- If, in Microwize Technology, Inc.’ sole discretion, Microwize Technology, Inc. judges that it is reasonable to do so for the purposes of repair, maintenance or improvement of the Equipment, Software and/or Service or any part thereof, Microwize Technology, Inc. reserves the right to suspend provision of the Service. Microwize Technology, Inc. reserves the right to limit Customer bandwidth utilization.
- Microwize Technology, Inc. reserves the right to suspend provision of the Service or any part thereof for the purpose of carrying out or implementing such repair, maintenance or improvement, provided that in the event of such suspension Microwize Technology, Inc. will use its reasonable endeavors to ensure that reasonable notice is given to Customer and minimum disruption to the Service is caused.
2.4 Microwize Technology, Inc. may also suspend the Service or any part thereof or terminate the Agreement without liability on its part if the provision of the Service or the relevant part of the Service is prohibited by law, statute, legislation, order, regulation or guidance issued by a court of law, governmental body or regulatory body.
3.Customer will be responsible for securely storing, managing and deploying when required any encryption key or password which are generated to protect Customer data. If Customer loses the encryption keys or passwords, Microwize Technology, Inc. is unable to assist in data restoration. A one-time fee of $50 will be charged to the Customer to re-seed data if Customer loses the encryption key.
3.1Customer must allow persons authorized by Microwize Technology, Inc. to enter Customer’s premises at reasonable times for the purposes of maintenance, improving, upgrading.
3.2Customer will not, and will not permit any third party, to (a) distribute or allow others to distribute copies of the Software or any part thereof to any third party, (b) tamper with, remove, reproduce, modify or copy the Software or any part thereof, (c) provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or (d) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software, source code or underlying proprietary information except as may be permitted by law and which rights cannot be excluded.
3.3 Customer is solely responsible for verification of the accuracy of the data that resides with Microwize Technology, Inc. under the client Software and that the service is accurately installed and the appropriate data is sent offsite. For the purposes of this Agreement Microwize Technology, Inc. will exclude .jpg, .mpg, .tif, .wav, .m4a, .wma, .mp4, .avi and .mp3 within the service software template.
- The Monthly and Installation Charges are payable within 30 days after receipt of an invoice, in U.S. currency. Monthly invoicing is based upon data utilization rounded up to the nearest gigabyte (GB).
4.1All charges for the Service and the other services are exclusive of taxes, which, if it is applicable, will be added to Customer’s invoice.
4.2 If Customer disputes charges, Customer must notify Microwize Technology, Inc. in writing of the dispute within thirty (30) days of the date on the affected bill, or else waive the dispute.
4.3 Customer will be responsible for reimbursing Microwize Technology, Inc. for all costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments.
4.4 Customer requests to delete data or accounts must be provided in writing to Microwize Technology, Inc.. No requests for cancellation or deletion will be completed without written notice subject to Section 13 of this agreement.
5. In the event that Customer or Microwize Technology, Inc. is in breach of the Agreement and such a breach is not remedied within fourteen (14) days of receipt of written notice from Microwize Technology, Inc. requiring such breach to be remedied, Microwize Technology, Inc. or Customer (as the case may be) shall, without prejudice to its other rights, have the right to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer or Microwize Technology, Inc. (as the case may be). Default in paying any sum due under the Agreement will be remedied only if the payment includes interest payable pursuant to Section 5.1.
5.1 Microwize Technology, Inc. shall be entitled, without prejudice to its other rights, to suspend services or terminate the Agreement forthwith and without liability on its part in respect of such suspension of services or termination by written notice to Customer if Customer is in breach of this agreement or Customer fails to pay any sum due under the Agreement within the period specified in the Agreement.
5.2 Upon the termination of the Agreement, without prejudice to any other rights Microwize Technology, Inc. may have, Customer shall:
5.2.1within fifteen (15) days of the date of termination, deliver up to Microwize Technology, Inc. and forthwith remove and/or destroy all components of the Service Provider Technology, any Confidential Information of Microwize Technology, Inc. and any materials bearing Microwize Technology, Inc.’s trade-marks from any storage media or hard copies remaining in Customer’s control or possession;
5.2.2provide an officer’s certificate attesting to such delivery, erasure and/or destruction as is satisfactory to Microwize Technology, Inc., acting reasonably;
5.2.3remit all fees payable for services due prior to the date of such termination;
5.2.4remit to Microwize Technology, Inc. all such costs and fees owing to Microwize Technology, Inc. including those related to the permanent or temporary winding down of any services provided by Microwize Technology, Inc.
5.3The provisions of this Terms & Conditions of Service will survive the termination of the Agreement and shall continue in full force and effect. Termination of the Agreement will not affect the rights of either party accrued prior to such termination in respect of a breach of the Agreement.
6.Customer acknowledges and agrees that all proprietary right, title and interest in and to the Service Provider Technology and the Service Provider Software, including all intellectual property rights therein, are owned by Microwize Technology, Inc. or its licensors, respectively. Customer shall have no right to sublicense or modify any Service Provider Technology.
6.1During the term of the Agreement Microwize Technology, Inc. grants Customer a non-exclusive, non-transferable limited license to use the Software solely for the purpose of using the Service and for no other purpose.
6.2 Customer acknowledges that, pursuant to this Agreement, it is given a non-exclusive, nontransferable, royalty-free right to use, during the term of the End-User License Agreement, any Service Provider Software or Service Provider Technology incorporated solely for the purpose of using the Service and not for providing services to any third party. At no time and under no circumstances does Customer acquire an ownership interest in the Product, Service Provider Software or Service Provider Technology.
6.3Customer further acknowledges and agrees that: (i) it is expressly prohibited from translating, adapting, modifying, decompiling, reverse engineering, creating derivative works from, disassembling, unlocking, copying or recreating any component of the Service Provider Software under the terms of this Agreement or the End-User License Agreement; (ii) Microwize Technology, Inc. shall have all right, title, interest in and to all copies, derivative works, translations, adaptations or modifications of the Service Provider Technology or the Service Provider Software howsoever made by Customer; and (iii) any proceeds derived from the activities described above, whether or not made by Customer in compliance with this Agreement or the End-User License Agreement, shall accrue to Microwize Technology, Inc..
7.The liability of Microwize Technology, Inc. to Customer or Customer’s employees, agents, subcontractors, customers or any other person under or in connection with the Agreement shall be limited by the provisions of these terms and, in particular, Section 8.
7.1Except for death or personal injury resulting from the negligence of Microwize Technology, Inc. or its employees Microwize Technology, Inc.’ total liability to the Customer under or in connection with the Agreement (including, without limitation, arising out of any delay in commencing the Service) shall be limited to the Monthly Charges for the time being payable for 12 months.
7.2Notwithstanding any other provision of the Agreement, in no circumstance shall Microwize Technology, Inc. be liable to Customer under or in connection with the Agreement or otherwise for:
7.2.1any loss or corruption of data (whether temporary or permanent);
7.2.2indirect, special, consequential or incidental damages, including, without limitation, loss of profits or revenue, loss of goodwill, business interruption, loss of anticipated savings, loss of data, cost of capital, however caused, even if such damages were foreseeable and the parties have been advised of the possibility of such damages; or
7.2.3inability to restore data due to the loss of Customer’s encryption keys.
7.3Except as expressly provided in this agreement, does Microwize Technology, Inc. make any express or implied representations, warranties or conditions of any kind, including but not limited to implied or statutory warranties or conditions of merchantability or fitness for a particular purpose.
8.Customer shall indemnify Microwize Technology, Inc. as required, on demand against any and all reasonable costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands and judgments which Microwize Technology, Inc. incurs or suffers as a result of a breach of this Terms & Conditions of Service.
8.1Under no circumstances will Microwize Technology, Inc. be liable for data that was never sent to the data vault by Customer. Customer is advised to review backup sets to ensure that the desired files have been transmitted.
9.0.Microwize Technology, Inc. does not make any independent representations or warranties with products provided by third parties. Any third party warranties are the exclusive remedies of Customer with respect to such products.
10.Each party agrees to, 1. keep confidential all the other party’s Confidential Information (whether written or oral) which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance or during the term of, the Agreement; 2. not to disclose the other party’s Confidential Information in whole or in part to any third party without the disclosing party’s written consent, save to those of its employees, agents and contractors involved in the implementation of this Agreement and who have a need to know the same and are bound to keep if confidential;
11.The failure by either party to exercise any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.
12.Additionally, Customer acknowledges that Microwize Technology, Inc. shall be permitted to assign the Agreement to any successor in title or other entity into, by or with which the business or assets of Microwize Technology, Inc. to which the Agreement relates may be merged, acquired, consolidated or reorganized, or any entity which may purchase all or substantially all of such business or assets. The Agreement shall be binding upon and shall endure to the benefit of the parties hereto and their respective successors and permitted assigns.
13.Customer shall send Microwize Technology, Inc. written notice or other document required by or in connection with the Agreement to the Microwize Technology, Inc. address listed on the Microwize Technology, Inc. invoice.
14.Microwize Technology, Inc. shall not be liable for any breach of the Agreement caused by matters beyond Microwize Technology, Inc.’ reasonable control, including, without limitation, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving Microwize Technology, Inc.’ employees), weather of exceptional severity or acts of local or central Government or other authorities or regulatory bodies.
15.State law issues concerning the construction, interpretation and performance of these terms and conditions shall be governed by the substantive laws of the State of New Jersey, excluding its choice of law rules. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
The services you are requesting will be performed under the following terms and conditions. This is the complete agreement between the Client (“client”, “you”) and Microwize Technology, Inc. (“Microwize”).
Hardware – All computers, servers, printers, scanners, modems, network equipment and other computer peripherals.
Software – All computer applications and utilities running on a computer locally or remotely.
Media – Computer hard disks, CDs, tapes, flash drives, and other computer storage methods.
Server – A computer that holds any application data.
Electronic Services – Any service relating to electronic medical claims submission, eligibility verification, claims management, claims status, etc.
All Sales Are Final: Due to the nature of products and services offered by Microwize, no returns, exchanges or refunds are available. Microwize makes no guarantees or warranties as to the feasibility of any product for a specific application. Please evaluate the software before your purchase by reading product details and downloading our trial and self-running demos at www.microwize.com
Client Information: Client shall maintain records of all hardware and software manuals, disks, certificates, serial numbers, passwords and any other materials provided by the manufacturer in order to use, register or upgrade a given hardware or software product.
System Requirements: It is the client’s responsibility to make sure the servers, workstations, printers and other hardware are compliant with the software versions being purchased. Newer versions of software may require hardware upgrades or replacement. The system requirements may be obtained from a Microwize representative or at our website at:
Medisoft System Requirements: https://microwize.com/medisoft/system-requirements/
Lytec System Requirements: https://microwize.com/lytec/system-requirements/
Backup and Data Protection: Due to the volatility of computers, disks, electrical power and other natural events, data corruption, damage or loss may occur. Therefore, the client agrees that they will maintain a current backup of all programs and data. Microwize recommends a daily backup of all critical data. Client will ensure that the backup method provides a reliable backup and will periodically test these backups and the media. Microwize cannot be responsible for data damage or data loss. As per HIPAA regulations, client shall maintain offsite backups.
Power Protection: Power fluctuations cause data damage or loss. Client shall purchase and maintain reliable Uninterruptible Power Supply for all its data servers.
Antivirus & Malicious software: Client agrees to protect all hardware, whether connected to the internet or not, with Antivirus and Anti-spyware software in order to protect all software and data from attacks. Because software is continually developed and modified, Client shall also maintain said software with all the latest updates as per manufacturer instructions.
Client acknowledges having a choice of methods to process electronic services with insurance carriers, including but not limited to third party claims clearinghouses and direct claims submissions. Upon the client’s request, Microwize may make recommendations or assist in setting up such claims services. Under no circumstances shall this be construed as an approval or endorsement of said services. Client is responsible for researching available electronic claims solutions and agrees to maintain a separate agreement with these claims services and shall not hold Microwize liable for any claims, losses or disputes arising from that relationship.
Some software and services purchased from Microwize Technology, Inc. may include limited free support. Most free support is available through our website/email, unless otherwise specified. If you require more advanced technical support or require telephone assistance, additional consulting services or a support plan may be required. We reserve the right to change our support policy at any time without prior notice.
INSTALLATION TERMS & CONDITIONS
PLEASE READ: IF YOU CHOOSE TO HAVE MICROWIZE PERFORM ANY INSTALLATION OR SERVICES, YOU ACCEPT THE TERMS AND CONDITIONS STATED BELOW.
You must make every attempt to safeguard your data during installation or upgrades. Microwize Technology, Inc. does not assume responsibility for loss of data. All data should be backed up on a regular basis and should always be backed up before you perform installations or upgrades. We are not responsible for any loss of data.
Information contained in your data/media (“Client Information”) will be used by Microwize only for the purpose of fulfilling this Engagement, and will otherwise be held in confidence by Microwize.
Service Does Not Include:
- Un-installation or re-installation of product(s) or software application(s), other than that which is specifically stated in the Service Description.
- Warranty service or support for third party systems.
- Troubleshooting applications or application compatibility issues.
- Customization of end user’s MS-Windows desktop, including desktop Icons, folders or the configuration on non-business applications.
- Software application installation, configuration, or data transfer, other than that which is specifically stated in this Service Description.
- Network cabling (excluding cable from system to network jack) or any other environmental or power related activities.
- Any activity not expressly stated in the Service Description.
Data Transfer from Old PC to New PC:
- For Data Transfer, Client data must reside under a single directory on the hard disk of the old PC (i.e., My Documents).
- Service Provider will copy the contents of the directory (up to 5GB) to the new PC. Service Provider will supply tools needed to facilitate data transfer. Data will be placed in the same file structure as the original machine.
- Client will not have any security or domain restrictions preventing data transfer.
Client warrants and represents to Microwize that they are in lawful possession of all data, media and/or equipment made available to Microwize, and that client has a lawful purpose to engage Microwize for the Engagement. Microwize is not permitted by law to copy pirated or copyrighted materials. Client acknowledges that Client owns the copyright or has a license to make copies to all of the files on the affected system(s) and that Client does not have any files on affected system(s) which would cause Microwize to be liable for copyright infringement if those files were copied as part of these Services, including but not limited to, music files, motion picture files or photographic files that are subject to copyright restrictions. Client accepts responsibility for, and agrees to indemnify and hold Microwize harmless from, any and all liability, damages, claims or proceedings arising out of Client’s failure to remove any such files from the affected system(s) prior to providing it to Microwize for these Services.
Due to the high demand of our technicians and trainers, we request that cancellations are made at least 48 hours before an appointment. If a cancellation is made within 48 hours or you are not available at the scheduled time, a rescheduling fee may apply.
DISCLAIMER OF WARRANTIES
To the extent allowed by local law, this software is provided to you “as is” without warranties or conditions of any kind, whether oral or written, expressed or implied. Microwize and any third party who makes its software disclaim any responsibility for any harm resulting from your use (or use by your employees, agents or contractors) of any hardware or software product purchased from Microwize. Microwize specifically disclaims any implied warranties or conditions of merchantability, satisfactory quality, non-infringement and fitness for a particular purpose. Any issues regarding recovered or lost data (either data corruption or incomplete migrations or recoveries) must be addressed within 10 business days of the completed recovery. After 10 business days your recovered data will be qualified as acceptable, and it will be removed from our servers. Any additional recovery attempts will be subject to additional recovery charges.
LIMITATION OF LIABILITY
Except to the extent prohibited by local law, in no event will Microwize Technology, Inc., or its employees or officers be liable for direct, special, incidental, consequential, punitive or other damages (including but in no way limited to lost profit, lost data, or downtime costs), arising out of the use, inability to use, or the results of use of the software, whether based in warranty, contract, tort or other legal theory, and whether or not advised of the possibility of such damages. Your use of the software is entirely at your own risk. Should the software prove defective, you assume the entire cost of all service, repair or correction.
Release and Consent
Client hereby grants Microwize a non-exclusive permission and without compensation to use its name, logo, graphic images, comments, and testimonials for promotional purposes such as, but not limited to, internet website, brochures, advertisements, training materials, reference letters, broadcasts and other public displays. Such permission shall have no expiration date unless otherwise rescinded in writing.
These Terms and Conditions will be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to the conflict of laws or provisions of New Jersey or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms and Conditions to be unenforceable, the remainder of these Terms and Conditions will continue in full force and effect. These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Terms and Conditions will be effective only if in writing and signed by Microwize and/or a third party who make its software.
Any dispute arising out of this agreement shall be subject to binding arbitration under the rules of the American Arbitration Association (AAA) in a location close to Microwize headquarters. The substantially prevailing party shall be reimbursed for all fees associated with arbitration by the non-prevailing party.
Incentives and Regulations
As the healthcare industry constantly changes, we highly recommend providers to attend and participate in Continuing Medical Education and non-Continuing Medical Education courses to be up to date on the latest regulations, incentives and potential penalties or take-backs. Microwize makes no warranty or guarantee that the client will achieve any incentives and denies any responsibility regarding a client’s compliance with such incentives, regulations or attestation.
File Repair Authorization Form
To ensure proper communication and quick resolution of problems, please complete the entire form. Make a copy of the completed form and send the original form with the data backup to the Microwize File Repair Department. Upon receipt and testing of the data, a file repair technician will contact you. The expected turnaround time is three to five business days. Microwize guarantees the condition of the repaired data at the time it is shipped from our office and will make every effort to ensure its timely return to customer.
***WARNING*** Any additional data input after the backup is made will be lost upon restoring the repaired data. DO NOT continue to input data once the backup has been sent in for repair.
File Repair Services
|***For Customers with a Valid Microwize Support Contract***|
|Internet Level 1 Repair Services:||$595|
|Internet Level 2 Repair:||$995|
|**Discounts Apply with a valid Microwize Support Contract**|
I understand that payment must be made in full prior to technician performing file repair. I also understand that I am responsible for all shipping charges incurred. By signing this form I authorize the Microwize File Repair Department to charge my credit card for the services described above.
By reading this.
Client acknowledges that media/data/equipment you are making available to Microwize is already damaged, that data services efforts can result in further damage, and that Microwize is not responsible for this or any other type of damage, including damage to or failures by equipment or media furnished by Microwize. Client is aware of the inherent risks of injury and property damage involved in data repair services, including without limitation, risks due to destruction or damage to the media or data and inability to recover data, or inaccurate or incomplete data recovery, including those that may result from the negligence of Microwize, and assumes any and all known risks of injury and property damage that may result. Client shall not use the data or a copy of the data submitted for repair to do any further data entry. The repaired data by Microwize WILL completely overwrite the previous data and client WILL LOSE ALL DATA ENTERED IN THE INTERIM.
Hardware – All computers, servers, printers, scanners, modems, network equipment and other computer peripherals.
Software – All computer applications and utilities running on a computer locally or remotely.
Media – Computer hard disks, CDs, tapes, flash drives, and other computer storage methods.
Server – A computer that holds any application data.
Security Monitoring – Monitors security events and information through firewall devices. Can identify anomalous behavior and security threats.
System and Windows Event Log Monitoring – A centralized log service located in the Windows server operating system that reports events that have taken place, such as a failure to start a component or complete an action. The system defines three log sources: System, Application and Security.
Patch– A patch is a piece of software designed to fix problems with, or update a computer program or its supporting data. This includes fixing security vulnerabilities and other bugs, and improving the usability or performance. Though meant to fix problems, poorly designed patches can sometimes introduce new problems.
Patch Management – Patch management is the process of using a strategy and plan of what patches should be applied to which systems at a specified time.
Anti-virus Software Management/Updating – Ensuring that the latest anti-virus software is installed and updated.
Content Filtering – Controls what Web content is permitted to a network user.
On-site Configuration Management – When Managed Services-related services are performed on-site.
Remote Configuration Management – When Managed Services-related services are performed remotely.
Firewall – A device designed to permit or deny network transmissions based upon a set of rules and is frequently used to protect networks from unauthorized access while permitting legitimate communications to pass.
Sophisticated Firewall Device – The Microwize recommended device that enables Microwize to perform the Managed Services optimally.
Firewall Rental – A Microwize-owned firewall device that is placed in the customer’s facility or facilities.
Internal Backup Software – On-site backup software that is installed on the Managed server.
Internal Backup Software Rental – Microwize-owned backup software that is installed on the Managed server.
Internal Backup Hardware – An on-site device that backs up to an external hard-drive placed at the Managed Services facility or facilities.
Internal Backup Hardware Rental – A Microwize-owned backup device that is placed in the Managed Services customer’s facility or facilities. This device will be returned to Microwize upon termination of contract. In the event it is not returned within 30 days, or Microwize is not given access to remove the device, then a fair-market-value fee will be charged.
Internal Backup Monitoring – Routine monitoring involving a dashboard that reports the status of a scheduled backup.
Online Backup Software – An off-site backup software.
Online Backup Software Rental – This service is discontinued upon termination of contract.
Online Backup Space – An off-site backup storage.
Online Backup Monitoring – Routine monitoring involving a dashboard that reports the status of a scheduled backup.
Optimization – Optimizing the performance of a computer system via hardware tuning and/or adjusting some operating system-related settings either directly or using a piece of computer system optimization software. e.g., using disk defragmentation software utility.
Firmware Updates – Updating of the latest version of the fixed, usually rather small, programs and/or data structures that internally control various electronic devices.
Portal – A technological doorway that connects the customer with the Microwize support database.
End-user Support Portal – An online Microwize support portal that allows customers to report computer-related issues or to get the status of a reported issue.
Priority Response – Microwize will make every effort to acknowledge the issue within two business hours, and resolve the issue as soon as possible. Resolution times will vary depending on the nature and extent of the problem.
Driving Distance – 100 miles from Microwize headquarters, located at 1 Kalisa Way, Paramus, NJ.
On-site Support – Service that is provided on-site within driving distance from Microwize technician locations.
OEM – The original equipment manufacturer that originally manufactured the product.
System Recovery – Restoring the computer to the OEM state on a functioning computer. Installing all applications and restoring data.
Remote System Recovery – After the system has been restored to the OEM state by a third party warranty, system recovery can be done remotely. Internet access is required. An OEM Recovery to OEM state means restoring the Microsoft Windows-based operating systems from a separate CD-ROM, DVD, or hard drive partition, which in turn launches the recovery environment.This is the state in which most computers are shipped.
On-siteSystem Recovery– An OEM recovery and system recovery on-site within driving distance from Microwize technician locations.
Labor for Replacement of Parts and Units – The time involved to replace computer parts or devices.
ULA – User License Agreement from third party software.
Risk Mitigation Plan – At the customer’s request, Microwize will suggest the appropriate risk-reducing measures for your IT infrastructure.
Disaster Recovery – The process, policies and procedures related to preparing for recovery or continuation of technology infrastructure critical to an organization after a natural or human-induced disaster. Disaster recovery is a subset of business continuity. While business continuity involves planning for keeping all aspects of a business functioning in the midst of disruptive events, disaster recovery focuses on the IT or technology systems that support business functions.
Disaster Recovery Options – At the customer’s request, Microwize will suggest the appropriate disaster recovery plan.
Asset and Inventory Tracking – Upon request, Microwize will provide customer with a list of all software, hardware and devices.
Monthly Health Reports – Upon request Microwize will provide customer with a report that will include the speed and performance of the IT infrastructure.
Network and Infrastructure Diagram – Upon request, Microwize will provide customer with an illustration of the IT infrastructure and key components.
Proprietary Software – is computer software licensed under exclusive legal right of the copyright holder. The licensee is given the right to use the software under certain conditions, while restricted from other uses, such as modification, further distribution, or reverse engineering.
On-Boarding– Getting the computer hardware within a manageable state that as determined by the Microwize standard.
Project– Expansion, adding new computers, moving computers, relocating computers or servers, testing new software, adding new software, or any service beyond the scope of this agreement.
Time & Material Rates for moves/adds/changes.
Any out of scope work will be invoiced as a project with a two (2)-hour minimum charge plus travel fees. Charges for out of scope work will be considered as a project and a project sales quote will be provided. CUSTOMER may request project quotes from their Microwize Sales Consultant. Examples include, moving computers, installing new computers, replacing servers, installing new applications, upgrading operating systems. Time and Materials Rate: Normal Business Hours 9AM-5PM $199/hour with a two-hour minimum.Before or After Hours $250/hour with a two-hour minimum. 10% discount will be applied to all Managed Services Customers.
Outside Business Hours– Microwize business hours are Mon-Fri 9am-5pm EST. Any time before or after including major holidays will be considered “Outside Business Hours”
HIPAA– Health Insurance Portability and Accountability Act
Managed Services Type: cGold cDiamond
On-Boarding Fee: $1,950 (for up to 10 computers) waived with 12-month contract
Contract Type: c(12)Twelve month contract or cMonth to Month contract
Microwize Unsupported Programs
|Name or Type|
|Software and OS older than 10 years such as but not limited to:, Windows OS older than Win7, MS Office older than 2003, Internet Explorer older than version 7. Non-Windows operating systems (Linux, Unix) are not supported.|
|Utilities such as but not limited to: File sharing/Bit torrent, Memory Optimizing, Registry cleanup, Driver Search and Update, Multiple Antivirus, Add-on Browser Toolbars|
|Specific Applications such as but not limited to: Best Buy Software Installer, Kodak EasyShare, WinZip, WinRAR, Yahoo Messenger, MS Messenger, Real Player, Limewire, Google Earth, AOL Full application,|
- Term of Services. This Service is a Twelve (12) month contract or a month to month subscription from the date of purchase. CUSTOMER shall provide Microwize with a minimum of thirty (30) days advance written notice of its intent to terminate the Service. Customer agrees to pay the remaining balance of the Twelve (12) month contract at the time of termination. If CUSTOMER does not pay the amount due under this Agreement within 30 days, Microwize may (1) refuse to continue to service the equipment, or (2) furnish service only on a C.O.D. (per call) basis. If the customer does not pay the amount due under this Agreement, Microwize may terminate this agreement and stop all services.
- Authorization to Represent Customer. From time to time it may be necessary for Microwize to contact CUSTOMER’s hardware, utility or service providers (“Provider(s)”, e.g., computer hardware manufacturers or internet service providers) on behalf of and as a representative of CUSTOMER in connection with this Service. CUSTOMER authorizes Microwize or its designated agent to act on CUSTOMER’s behalf in this capacity. Additionally, CUSTOMER authorizes the release of any information from Providers to Microwize. CUSTOMER further agrees to indemnify and hold Microwize harmless from any and all damages, costs and expenses (including legal fees and costs of court or settlement) arising out of or in connection with any claim by Provider related to Microwize’s acts in its capacity as a representative of CUSTOMER, regardless of the form of action.
- Access to Information. CUSTOMER acknowledges and agrees that in connection with the performance of the Services (1) Microwize may access any information contained in CUSTOMER’s IT environment; (2) CUSTOMER may provide information to Microwize by telephone or otherwise; (3) CUSTOMER is authorized by law or otherwise to disclose and permit Microwize to access such information, and (4) Microwize may access CUSTOMER’s IT environment from offices throughout the United States as well as locations at agents and subcontractors’ offices.
- Authorization to Maintain & Access Entitled Devices. By purchasing the Services, CUSTOMER acknowledges that Microwize will access, connect to and manage customer’s network via remote technologies.
- Remote Services. In connection with this Service, Microwize may perform remote management activities without first contacting CUSTOMER. These activities include, but are not limited to:
- Updating or changing software drivers.
- Installing and applying software patches.
- Rebooting devices within maintenance windows.
- Deleting temporary files & clearing caches.
- Starting or restarting application services.
- Staging and executing scripts for automated maintenance routines.
- Network performance tuning.
- Transfer data associated with routine system tuning and upkeep between systems within a CUSTOMER’s network.
- Identify, collect, and report on detailed data for devices on a network.
- Notification to Microwize Prior to Environment Changes.
CUSTOMER is responsible for notifying Microwize of any changes made to network equipment covered by this service agreement. CUSTOMER agrees to notify Microwize at least 48 hours prior to changes and activities affecting network equipment, including those activities listed below. Change management activities include any enhancement, modification, update, installation or de-installation that will impact the existing production environment for one or more devices, including, but not limited to, networks, data center operations, support or facilities environment.
- Activity / Tasks that involve the loss of monitoring services and/or trigger alerts.
- Stopping/disabling monitoring Services for one or more device(s).
- Server shutdowns/reboots.
- Decommissioning/replacement of devices including activities related to the replacement, refresh, reconfiguration or decommissioning of hardware.
- Disabling switch ports as well as physical cable disconnections (i.e. moving equipment).
- Disabling network cards.
- Disconnecting network cables.
- Service account changes (credentials, naming). Changes such as renaming, deleting, privileges change and mainly password reset on accounts used in connection with devices.
- Outages/maintenance of the environment containing devices (including emergency changes).
- Installation/remove/upgrades of system software introduced into environment containing devices (servers, routers, firewalls, etc.).
If CUSTOMER elects not to follow this procedure, they may place their environment at risk and may incur additional costs for services. Notification should be sent by email to firstname.lastname@example.org
- Cooperate with Microwize Telephone Staff. CUSTOMER agrees to provide an on-site resource to cooperate with and follow instructions given by the Microwize representative during telephone support. Experience shows that because of close cooperation between the user and the support representative, most system problems and errors can be corrected over the phone.
- Device-Service Eligibility. CUSTOMER must maintain the eligibility for network devices to be covered by this Service by ensuring that replacement parts, patches, software updates or subsequent releases are installed as directed by Microwize.
- Printers/Scanners/Copy Machines: Due to these devices not having any field serviceable parts, Microwize will not be able to cover any hardware troubleshooting, changes or repairs. The only portion of these devices that will be covered will be the troubleshooting of software drivers or server queue clearing/restarting. Paper jams or internal hardware jams are not covered.
- Equipment Failure. Microwize may require customer to purchase new warranty or support agreements for specific devices or services. Microwize may remove a part or entire device or system from this support agreement if it is deemed to be unstable, beyond its useful life or not officially supported by the manufacturer or vendor. Delays caused by third party response are beyond the control of Microwize.
- For Gold Service Plans, remote support to assist with hardware repairs is included. On-site support for the repair of systems with or without warranty will be billed at the rates as indicated in the Time & Material Rates. For systems without a warranty Microwize will provide a quote for the replacement of the system or parts including applicable shipping, taxes and related costs. Customer agrees to pay for all associated time that Microwize is onsite to provide service.
- For Diamond Service Plans, remote and on-site support to assist with hardware repairs is included. On-site support for the repair of systems under warranty is included and all parts are replaced by the vendor providing the warranty. For systems without a warranty Microwize will provide a quote for replacement of the system or parts including applicable shipping, taxes and related costs.
- Both parties agree that CUSTOMER staff will not install applications listed on the Microwize Unsupported Programs list including games, entertainment, hacking, unlicensed software, or legacy applications that are not tested in advance. Microwize may require a project fee for testing new applications and equipment before adding them to the entitled devices. Please see Appendix E.
- Third Party Specialized Equipment.CUSTOMER agrees to purchase and keep active contracts and support agreements with third party software and hardware vendors and that Microwize Managed Services will have access to support agreements to contact respective vendors for technical support. Example: Customer has a third party phone system, copier, EMR, Practice Management, Xray, PACS or specialized computer hardware with an active support/warranty agreement to receive technical support and repairs. Remote and on-site support for these systems will be billed as a project and is not included in the monthly service agreement.
- Microwize Software and Rental Equipment. Microwize may provide firewalls, backup software, and other equipment and options on a monthly basis for use at the customer’s network AKA “Rental” This device will be returned to Microwize upon termination of contract. In the event it is not returned within 30 days, or Microwize is not given access to remove the device, CUSTOMER agrees to pay a fair-market-value fee. This equipment remains the property of Microwize and must be returned in reasonably clean, working condition. Customer agrees not to remove the property from the location without written approval from Microwize. Customer may return the equipment in appropriate packaging with an insured shipment such as FedEx, UPS or USPS with a tracking number. Customer agrees that they will provide access to Microwize representatives to enter the office and remove the equipment during normal business hours.
- Firewall Replacement Warranty – Microwize will replace the firewall device in the event that it fails or is defective. This warranty does not cover loss of device due to theft, fire, human tampering and water damage. CUSTOMER agrees to provide insurance or reimburse Microwize the fair market value in case of theft, fire, or water damage.
- Internal Backup Software – This software will be un-installed or deactivated upon termination of contract. In the event that Microwize is not given access to un-install or deactivate the software within 30 days, CUSTOMER agrees to pay a fair-market-value fee for the software.
- Online Backup Space Rental – Upon termination of contract the customer will be given three options: 1) to continue the storage service at a fee of 99¢ per gigabyte per month; 2) Microwize will give customer access to transfer the content of the storage to another source of their choice; 3) content will be moved to an external media at an additional fee. The client must inform Microwize of their choice in writing within 30 days or the content will be deleted.
- Microwize normal working hours are 9:00 AM to 5:00 PM, Monday through Friday, except holidays. However, extended hours and 24×7 support is available.
- Changes, moves or additions to the devices listed in “Appendix A” will be billed to CUSTOMER as a project or as a new monthly managed services price. Microwize will notify CUSTOMERwith any changes. All changes will be done in writing by a Change Order. CUSTOMER and Microwize Technology prior to any work being performed must sign the Change Order.
- The content of this agreement shall not be distributed outside Microwize Technology and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than to evaluate this agreement. Any other use is prohibited unless authorized in writing by Microwize.
- The customer agrees to pay all charges due under this Agreement. Microwize will render initial monthly billing in advance upon receipt of signed and accepted copy of the Agreement. Payments will be made within thirty (30) days after receipt of due invoice.
- The term of this agreement shall be one year from the commencement date specified on the attached signature page. Either party may cancel this agreement with written notice of termination not less than 90 days prior to the expiration date of the initial term or, in the case of any renewal term, not less than 90 days prior to the commencement of such renewal term.
- Microwize and its agents, subcontractors, or assignee shall not be liable for incidental or consequential damages. Microwize shall not be responsible for failure to render service due to strikes, fire, flood and causes beyond its control. This Agreement and Microwize Terms and Conditions and Master Service Agreement constitute the entire contract between Microwize and CUSTOMERwith respect to service of the equipment covered by this Agreement and no representation or statement not expressed herein shall be binding on Microwize. The terms and conditions herein shall prevail notwithstanding any variance with the terms and conditions of any order submitted by CUSTOMER with respect to maintenance service.
- Miscellaneous Provisions. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to the conflict of laws provisions of New Jersey or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms and Conditions to be unenforceable, the remainder of these Terms and Conditions will continue in full force and effect. This agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of these Terms and Conditions will be effective only if in writing and signed by Microwize and/or a third party who make its software.
- Any dispute arising out of this agreement shall be subject to binding arbitration under the rules of the American Arbitration Association (AAA) in a location closest to Paramus NJ. The substantially prevailing party shall be reimbursed for all fees associated with arbitration by the non-prevailing party.
- Both parties agree that neither it nor its affiliated companies shall employ nor make an offer of employment to any of the other party’s respective professional personnel or any agent, subcontractor or assignee of either party for a period of two (2) year from their termination of employment, or the termination of this Agreement, whichever occurs later.
- Backup and Data Protection
Due to the volatility of computers, disks, electrical power and other natural events, data corruption or loss may occur. Therefore, the CUSTOMER may choose to maintain an additional backup other than the backup that Microwize maintains. Microwize recommends a daily backup of all critical data. Client will insure that the backup method includes all the drives and folders needed in writing to Microwize. Client will help in testing and auditing the integrity of the data. Microwize will not be responsible in any downtime related to data loss or other reasons.
- As per HIPAA regulations, client shall maintain offsite backups. Microwize recommends a secure, online backup solution that transfers data to a remote server. Microwize will use third party vendors to store offsite backups.
- Power Protection Power fluctuations wreak havoc on hardware and software and can cause data damage or loss. Client shall purchase and maintain a reliable UPS (Uninterruptible Power Supply) solutions for all data servers.
- Antivirus & Malicious software Client agrees to never turn off any Antivirus software installed by Microwize without written consent. All hardware, whether connected to the Internet or not, must have an appropriate Antivirus, Anti-spyware software in order to protect all software and data from attack. Malicious software is continually developed and modified, CUSTOMER agrees to avoid using computers for unsafe activities such as downloading software, music or other data from unknown sources.
- INSTALLATION TERMS & CONDITIONS PLEASE READ: IF YOU CHOOSE TO HAVE MICROWIZE TECHNOLOGY, INC PERFORM ANY INSTALLATION OR SERVICES, YOU ACCEPT THE TERMS AND CONDITIONS STATED BELOW IN A LEGALLY BINDING MANNER. Client agrees to allow Microwize Technology, Inc. to accept EULA for all software Microwize installs on your behalf.
- DISCLAIMER OF WARRANTIES: To the extent allowed by local law, this service don’t guarantee the stability of any software,hardware or services, all these areprovided to you “as is” without warranties or conditions of any kind, whether oral or written, express or implied. Microwize and any third party disclaim any responsibility for any harm resulting from your use (or use by your employees, agents or contractors) of any hardware, software or service purchased from Microwize. Microwize specifically disclaims any implied warranties or conditions of merchantability, satisfactory quality, non-infringement and fitness for a particular purpose.
- LIMITATION OF LIABILITY: Except to the extent prohibited by local law, in no event will Microwize Technology, Inc., or its employees or officers be liable for direct, special, incidental, consequential, punitive or other damages (including lost profit, lost data, or downtime costs), arising out of the use, inability to use, or the results of use of hardware, software or service, whether based in warranty, contract, tort or other legal theory, and whether or not advised of the possibility of such damages. Your use of the hardware, software or service is entirely at your own risk. Should the hardware or software prove defective, you assume the entire cost of all service, repair or correction.
- Pirated Software: Customer is responsible for providing receipts or authentic licensing documents for all applications on the network.Microwize does not support illegally downloaded/obtains software.
- HIPAA Privacy Rule: which protects the privacy of individually identifiable health information; the HIPAA Security Rule, which sets national standards for the security of electronic protected health information; and the confidentiality provisions of the Patient Safety Rule, which protect identifiable information being used to analyze patient safety events and improve patient safety. Microwize will do their best effort to protect the CUSTOMER and their patients.
This agreement (“Agreement” or “Service Description”) is made between CUSTOMER (“you” or “Customer”) and Microwize Technology (“MICROWIZE”). By purchasing these Services as defined herein) from Microwize, CUSTOMER agrees to be bound by all terms and conditions set forth in this document. Microwize is pleased to provide these Terms and Conditions, which is incorporated in its entirety herein by reference. Microwize and CUSTOMER agree as follows:
Microwize will provide computer and network support services to CUSTOMER on a monthly basis with the Microwize Managed Services solution.
The Microwize proposed solution package for CUSTOMERincludes the services outlined in Appendix A section of this agreement.
END USER LICENSE AGREEMENT
NOTICE: BEFORE PROCEEDING, PLEASE READ THE FOLLOWING LEGAL AGREEMENT WHICH CONTAINS RIGHTS AND RESTRICTIONS ASSOCIATED WITH YOUR USE OF THE MCKESSON SOFTWARE AND ANY DOCUMENTATION PROVIDED TO YOU BY MCKESSON TECHNOLOGIES INC. OR ITS AFFILIATES.
This End-User License Agreement (“EULA”) is a legal agreement between you, either an individual or a single entity (“End User” or “You”) and McKesson Technologies Inc., on behalf of itself and the McKesson Affiliates (“McKesson”) for the Software and Clinical Content, as those terms are defined in Section 1.1.1 below, that McKesson provides to End User. By installing, copying, or otherwise using the Software or Clinical Content, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, You may not install or use the Software.
AS FURTHER DESCRIBED BELOW, USE OF THE SOFTWARE ALSO OPERATES AS YOUR CONSENT TO THE TRANSMISSION, FROM TIME TO TIME, OF CERTAIN COMPUTER AND SOFTWARE USAGE INFORMATION TO MCKESSON.
If You have previously entered into a written license agreement directly with McKesson or any of its predecessors, including but not limited to Physicians Micro Systems, Inc., or McKesson Information Solutions LLC for license of the Software, then where the terms of this EULA directly conflict with that written license agreement, the conflicting terms of this EULA do not apply to You.
If You did not obtain the Software either directly from McKesson or from an authorized McKesson reseller, or if You have not paid either McKesson or an authorized McKesson reseller in full for this license, then this EULA offer is rescinded and You are not authorized to install or use this Software. The term of this EULA (“Term”) commences on the date the End User first installs the Software and continues until terminated pursuant to Section 2.5.1.
SECTION 1: SOFTWARE
1.1 Software and Clinical Content.
(a) “Clinical Content” means medical or clinical information such as terminology, vocabularies, decision support rules, alerts, drug interaction knowledge, care pathway knowledge, standard ranges of normal or expected result values, and any other clinical content or rules provided to End User for use with the Software, together with any related Documentation. Clinical Content may be either (a) owned by McKesson or (b) owned by a third party and sublicensed to End User under this EULA.
(b) “Concurrent User” means a Permitted User identified by a unique user ID issued by End User that is one user out of a maximum number of users permitted to access the Software simultaneously.
(c) “Confidential Information” means any information or material, other than Trade Secrets, that is of value to McKesson and is not generally known to third parties, or that McKesson obtains from any third party that McKesson treats as confidential whether or not owned by McKesson. Confidential Information shall not include information that You can show is: (1) known by You at the time of receipt from McKesson and not subject to any other nondisclosure agreement between the parties; (2) now, or which hereafter becomes, generally known to the public through no fault of You; (3) otherwise lawfully and independently developed by You without reference to Confidential Information; or (4) lawfully acquired by You from a third party without any obligation of confidentiality.
(d) “Data Center” means one data center located in the United States only and operated by End User.
(e) “Documentation” means user guides or operating manuals containing the functional specifications for the McKesson owned software and Clinical Content, as may be reasonably modified from time to time, provided to End User.
(f) “Facility” means one discrete location, in the United States only, where healthcare services are administered by a Provider or Providers or operated by End User as applicable.
(g) “McKesson Affiliates” means any U.S. entities that are now or in the future controlling, controlled by, or in common control with, McKesson Technologies Inc.
(h) “Permitted User” means any individual (a) End User employee, (b) consultant or independent contractor who has need to use the Software based upon a contractual relationship with End User, so long as (i) such consultant or independent contractor is not a McKesson competitor, (ii) End User remains responsible for use of the Software by such consultant or independent contractor, and (iii) such consultant or independent contractor is subject to confidentiality and use restrictions at least as strict as those contained in this EULA, (c) physician with admitting privileges at a Facility, (d) employee of such physician, and (e) medical professional authorized to perform services at a Facility.
(i) “Provider” means specially trained and licensed personnel (e.g., medical doctor, doctor of osteopathy, physician assistant, physical therapist, dietician, and advanced registered nurse practitioner) directly billing for patient care services either (i) under his or her name, (ii) the name of the practice, or (iii) under the name of a supervisory Provider. “Full-time Providers” are Providers working 20 hours a week or greater. “Part-time Providers” are Providers working less than 20 hours a week or a doctor in residency training.
(j) “Software” means (i) software in object code form only that accompanies this EULA, and (ii) related Documentation (collectively, “Software”).
(k) “Term” has the meaning set forth in the fifth paragraph of the Introductory Section.
(l) “Trade Secret” means any information of McKesson or that McKesson has acquired from a third party which is not commonly known by or available to the public, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade Secret shall include, but not be limited to, Software, Documentation, Clinical Content and the terms and conditions of this EULA.
1.1.2 License Grant.
(a) Perpetual License. Subject to the terms of this EULA, McKesson grants to End User, and End User accepts, a limited, nonexclusive, nontransferable, non-sublicensable, perpetual license to use the Software and Clinical Content for End User’s internal purposes. Depending on the intended usage, Clinical Content may be provided in either paper or electronic formats.
(b) The license grant in this Section is expressly subject to the following conditions: (i) the Software may be installed only on equipment at Facilities and Data Centers as specified in Section 1.1.3(c) below, (ii) the Software and Clinical Content may be accessed or used only by Permitted Users in the U.S., (iii) use of the Software and Clinical Content is limited by the usage-based variable(s) as specified in Section 1.1.3(c) below, and (iv) the Software and Clinical Content may be used to provide service bureau or other similar services, or hosted by a third party (e.g. outsourcing or facility management service provider), only if expressly permitted in a separate writing by McKesson.
(c) Third Party Software. Any software that is owned by a third party and provided to End User with the Software is subject to that license and terms and conditions accompanying such Third Party Software and any such terms are incorporated herein. McKesson may substitute different software for any Third Party Software, if McKesson reasonably demonstrates the need to do so. End User agrees to the applicable Third Party terms and conditions, if any, as set forth at http://customerportal.mckesson.com, which Customer may access using the following confidential login information:
User ID: email@example.com
Password (case sensitive): Portal!Access
1.1.3 Software License Restrictions.
(a) Copying and Modification. End User shall not duplicate the Software, except as required for its use in accordance with this Agreement, provided that End User may make one (1) back-up copy of the Software solely for archival purposes. Such back-up copy shall include McKesson’s and any third party’s copyright and other proprietary notices, and shall be subject to all the terms and conditions of this EULA. End User will not alter any trademark, copyright notice, or other proprietary notice on the Software or Documentation, and will duplicate each such trademark or notice on each copy of the Software and Documentation.
(b) Facility Limitation. The Software will be installed only at Facilities and Data Centers as set forth in Section 1.1.3(c) below, except that the Software may be installed on a temporary basis at an alternate location in the U.S. if End User is unable to use the Software at such Facility or Data Center due to equipment malfunction or force majeure event. End User will promptly notify McKesson of the alternate location if such temporary use continues for longer than 30 days.
(c) The following additional restrictions apply to the Software as set forth below:
i. Lytec SU (single user): Single machine; unlimited named users; no Concurrent Users; No remote access.
ii. Lytec MU (multiple user): Up to 3 Concurrent Users; Installation on a networked system (i.e., no limits on number of machines) present at one or more Facilities or Data Centers, all directly controlled by End User.
iii. Lytec Professional: Up to five Concurrent Users; Installation on a networked system (i.e., no limits on number of machines) present at one or more Facilities or Data Centers, all directly controlled by End User.
iv. Lytec Client Server: Available to the number of Concurrent Users purchased from McKesson or the McKesson reseller; Installation on a networked system (i.e., no limits on number of machines) present at one or more Facilities or Data Centers, all directly controlled by End User.
v. Lytec MD: Available to the number of Providers and Concurrent Users purchased from McKesson or the McKesson reseller; One Provider license includes 5 concurrent users; additional Providers or Concurrent Users must be licensed.
vi. Medisoft Basic or Medisoft Original: Single machine; unlimited named users; no concurrent users; No remote access.
vii. Medisoft Advanced: Single machine; unlimited named users; no concurrent users; No remote access.
viii. Medisoft Network Professional: Available to the number of Concurrent Users purchased from McKesson or the McKesson reseller; Installation on a networked system (i.e., no limits on number of machines) present at one or more Facilities or Data Centers, all directly controlled by End User.
ix. Medisoft Clinical: Available to the number of Providers and Concurrent Users purchased from McKesson or the McKesson reseller; One Provider license includes 5 concurrent users; additional Providers or Concurrent Users must be licensed
x. Practice Partner: Available to the number of Providers purchased from McKesson or the McKesson reseller; add-on licenses for some End Users may be licensed on Concurrent User basis if original license was Concurrent User based- please check with Your McKesson reseller; Installation on a networked system (i.e., no limits on number of machines) present at one or more Facilities or Data Centers, all directly controlled by End User.
(d) Current Procedural Terminology (CPT). The Software may include the Current Procedural Terminology (CPT) code set, maintained by the American Medical Association through the CPT Editorial Panel, describing medical, surgical, and diagnostic services and designed to communicate uniform information about medical services and procedures among physicians, coders, patients, accreditation organizations, and payers for administrative, financial, and analytical purposes (the “CPT”). End User may only use the CPT code set consistent with these terms and conditions.
1.2 Export Law Assurances. End User may not use or otherwise export or re-export the Software or Documentation except as authorized by United States law and the laws of the jurisdiction in which the Software or Documentation was obtained. In particular, the Software or Documentation may not be exported, transshipped or re-exported (1) into (or to a national or resident of) those countries subject to a comprehensive economic sanctions program administered by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”) (Countries subject to OFAC embargo or sanctions can change at any time and can be reviewed by consulting materials available at http://www.treas.gov/ofac/index.html and http://www.bis.doc.gov); or (2) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List, each as they may be amended from time to time and which may be found at http://www.treas.gov/ofac/index.html and http://www.bis.doc.gov.
1.3 Warranty. McKesson warrants to End User that the computer media on which the original Software is recorded will be free of defects in material and workmanship for a period of 30 days from the date of purchase under normal conditions of use and service. If the media becomes defective within 30 days from the date of purchase, if proof of original purchase can be verified, as End User’s sole remedy and McKesson’s sole obligation McKesson will replace the Software or at its option, McKesson may refund to End User the original McKesson purchase price, less any previously applied credits or refunds.
1.4 Disclaimer. EXCEPT AS STATED IN THE WARRANTY OF SECTION 1.3, THE MCKESSON SOFTWARE AND CLINICAL CONTENT IS PROVIDED “AS IS WITH ALL FAULTS” AND IN ITS PRESENT STATE AND CONDITION. NO WARRANTY, REPRESENTATION, GUARANTEE, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, ACCURACY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, QUIET ENJOYMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE MCKESSON SOFTWARE OR CLINICAL CONTENT IS GIVEN OR ASSUMED BY MCKESSON AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, AS ARE ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE. MCKESSON DOES NOT WARRANT THAT DEFECTS IN THE MCKESSON SOFTWARE OR CLINICAL CONTENT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MCKESSON OR ANY MCKESSON REPRESENTATIVE OR RESELLER SHALL CREATE A WARRANTY. MCKESSON DOES NOT WARRANT THAT THE SOFTWARE OR CLINICAL CONTENT WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULT. TO THE EXTENT THAT UPDATED VERSIONS OF THE SOFTWARE OR CLINICAL CONTENT ARE DEVELOPED AND RELEASED BY MCKESSON, END USER ASSUMES ALL RISKS ASSOCIATED WITH USING OLDER VERSIONS OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE RISK OF USING OUTDATED CLINICAL CONTENT.
1.5 Audit. Upon reasonable advance notice and no more than twice per calendar year, McKesson may conduct an audit to ensure that End User is in compliance with this EULA. This audit may be in person or by remote access to End User’s copy of the Software, which You will permit and not attempt to impede or block. Such audit will be conducted during regular business hours, and End User will provide McKesson with reasonable access to all relevant equipment and records. If an audit reveals that End User’s use of any Software or Clinical Content during the period being audited exceeds the usage-based variable(s) licensed by End User, then McKesson may invoice End User for all such excess use based on McKesson’s prevailing rate(s) in effect at the time the audit is completed, and End User will pay any such invoice. If such excess use exceeds five percent of the licensed use, then End User will also pay McKesson’s reasonable costs of conducting the audit.
SECTION 2: GENERAL TERMS
2.1.1 Confidential Information, Trade Secrets. You shall not use (except as permitted in connection with Your performance hereunder), disclose or permit any person access to any Trade Secrets (including, without limitation, the Software, Clinical Content and Documentation) while such information retains its status as a Trade Secret. During the Term and for a period of five (5) years thereafter, except as otherwise mandated by law, You shall not use, disclose, or permit any person access to any Confidential Information, except as permitted in connection with Your performance hereunder. You acknowledge that if You breach this Section 2.1.1, McKesson may have no adequate remedy at law available to it, may suffer irreparable harm, and will be entitled to seek equitable relief. You agree to protect such Confidential Information and Trade Secrets with no less diligence than You protect Your own confidential or proprietary information. If disclosure of Confidential Information is required under provisions of any law or court order, You will notify McKesson sufficiently in advance so McKesson will have a reasonable opportunity to object.
2.1.2 Software Usage Information. During registration or activation of software, and then on a regular basis, the Software will send information about the Software and Your use of the Software, to McKesson (“Usage Information”). This Usage Information helps prevent the unlicensed or prohibited use of the Software and also assists McKesson in offering End User other features and services. Usage Information sent by the Software may include the following: Customer # / serial number; software name; software version; date data was collected; total number of appointments in database; total number of visits in database; total number of transactions in database; for each item in the doctor list: number of appointments in last n days, number of visits in last n days, number of charges in last n days; for each clearinghouse in the system: number of claims submitted in last n days, number of eligibility queries submitted in last n days. Usage Information transmitted shall not include any individually identifiable information or any protected health information. End User may opt out of the collection of Usage information by sending notice to McKesson in accordance with Section 2.7 to the attention of the General Manager, Physician Practice Solutions. The notice must include the Software serial number.
2.1.3 Retained Rights. End User’s rights in the Software will be limited to those expressly granted in this EULA. McKesson and its suppliers reserve all intellectual property rights not expressly granted to End User. All changes, modifications, improvements or new modules made or developed with regard to the Software, whether or not (a) made or developed at End User’s request, (b) made or developed in cooperation with End User, or (c) made or developed by End User, will be solely owned by McKesson or its suppliers. End User acknowledges that the Software contains trade secrets of McKesson, and End User agrees not to take any step to derive a source code equivalent of the Software (e.g., disassemble, decompile, or reverse engineer the Software) or to permit any third party to do so. McKesson retains title to all material, originated or prepared for the End User under this EULA. End User is granted a license to use such materials in accordance with this EULA.
2.1.4 Maintenance Fees. Subject to payment of applicable fees, McKesson provides software maintenance services for Medisoft Clinical Software, Practice Partner Software, and Lytec MD Software through an authorized McKesson reseller, or from McKesson, if You obtained the Software directly from McKesson. The scope and fees for such software maintenance services are set forth in a separate written agreement between You, and either the McKesson reseller or McKesson, as applicable.
2.2 Limitation of Liability.
2.2.1 Total Damages. MCKESSON’S TOTAL CUMULATIVE LIABILITY UNDER, IN CONNECTION WITH, OR RELATED TO THIS EULA WILL BE LIMITED TO (A) THE TOTAL FEES PAID (LESS ANY REFUNDS OR CREDITS) BY END USER FOR THE SOFTWARE GIVING RISE TO THE CLAIM, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE.
2.2.2 Exclusion of Damages. IN NO EVENT WILL MCKESSON BE LIABLE TO END USER UNDER, IN CONNECTION WITH, OR RELATED TO THIS EULA FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF GOODWILL, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT MCKESSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
2.2.3 Material Consideration. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ARE A MATERIAL CONDITION FOR THEIR ENTRY INTO THIS EULA.
2.3 Professional Responsibility and Clinical Content Disclaimer. END USER ACKNOWLEDGES AND AGREES THAT ANY CLINICAL CONTENT FURNISHED BY MCKESSON HEREUNDER (WHETHER SEPARATELY OR INCLUDED WITHIN THE SOFTWARE) IS AN INFORMATION MANAGEMENT AND DIAGNOSTIC TOOL ONLY AND THAT ITS USE CONTEMPLATES AND REQUIRES THE INVOLVEMENT OF TRAINED INDIVIDUALS. END USER FURTHER ACKNOWLEDGES AND AGREES THAT MCKESSON HAS NOT REPRESENTED ITS SOFTWARE AS HAVING THE ABILITY TO DIAGNOSE DISEASE, PRESCRIBE TREATMENT, OR PERFORM ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE.
2.4 Internet Disclaimer. CERTAIN SOFTWARE PROVIDED BY MCKESSON UTILIZES THE INTERNET. MCKESSON DOES NOT WARRANT THAT SUCH SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. MCKESSON DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM MCKESSON’S OR END USER’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT END USER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ACCORDINGLY, MCKESSON DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
2.5.1 Termination. McKesson may terminate the EULA immediately upon notice to End User if End User: (a) materially breaches the EULA and fails to remedy such breach within 60 days after receiving notice of the breach from McKesson, (b) materially breaches any other contract End User has entered into with McKesson, (c) infringes McKesson’s intellectual property rights and fails to remedy such breach within ten (10) days after receiving notice of the breach from McKesson, (d) materially breaches the EULA in a manner that cannot be remedied, or (e) commences dissolution proceedings or ceases to operate in the ordinary course of business.
2.5.2 Obligations upon Termination or Expiration. Upon the termination or expiration of this EULA, End User will promptly (a) cease using all Software and Clinical Content, (b) purge all Software and Clinical Content from all computer systems (including servers and personal computers), (c) return to McKesson or destroy all copies (including partial copies) of the Software and Clinical Content, and (d) upon McKesson’s request promptly deliver to McKesson written certification of an officer of End User that End User has complied with its obligations in this Section.
2.6 Discount Reporting. An order form or quote may contain a discount that End User is required to report in its cost reports or another appropriate manner under applicable federal and state anti-kickback laws, including 42 U.S.C. Sec. 1320a-7b(b)(3)(A) and the regulations found at 42 C.F.R. Sec. 1001.952(h). End User will be responsible for reporting, disclosing and maintaining appropriate records with respect to the discount and making those records available under Medicare, Medicaid or other applicable government health care programs.
2.7 General. This EULA is governed by and will be construed in accordance with the laws of the State of Georgia, exclusive of its rules governing choice of law and conflict of laws and any version of the Uniform Commercial Code; each party agrees that exclusive venue for all actions, relating in any manner to this EULA will be in a federal or state court of competent jurisdiction located in Fulton County, Georgia. End User will not assign this EULA without the written consent of McKesson; McKesson may, upon notice to End User, assign this EULA to any McKesson Affiliate or to any entity resulting from reorganization, merger, or sale, and may subcontract its obligations. Failure to exercise or enforce any right under this EULA is not a waiver of such right. Neither party is liable for failing to fulfill its obligations due to acts of God or other causes beyond its reasonable control, except for End User’s obligation to make payment. All notices relating to the parties’ legal rights and remedies under this EULA must be provided in writing and delivered by: (a) postage prepaid registered or certified U.S. Post mail; or (b) commercial courier. All notices to McKesson will be sent to the following address with a copy to McKesson’s General Counsel: 5995 Windward Parkway, Alpharetta, GA 30005. This EULA is the complete and exclusive agreement between the parties with respect to the subject matter hereof and may be may be modified, or any rights under it waived, only in a mutually-signed written agreement.
2.8 Government Customer Rights. If this Software is provided under a federal government contract, then McKesson intends that any Software provided under this EULA constitute “commercial item(s)” as defined in Federal Acquisition Regulation (“FAR”) 2.101, including any Software, Clinical Content, Documentation or technical data. Additionally, all Software, Clinical Content, Documentation, or technical data provided by McKesson under this EULA will be considered related to such “commercial item(s)”. If End User seeks rights in Software, Clinical Content, Documentation, or technical data provided by McKesson under this EULA, then McKesson grants only those rights established under any FAR or FAR Supplement clauses which are flowed down to McKesson under this EULA consistent with the delivery of “commercial item(s).” If End User contends that any Software, Clinical Content, Documentation, or technical data provided under this EULA does not constitute “commercial item(s)” as defined in FAR 2.101, then End User promptly will notify McKesson of the same, and identify what rights End User contends exist in such Software, Clinical Content, Documentation, or technical data. No rights in any such Software, Clinical Content, Documentation, or technical data will attach other than rights related to “commercial item(s)” unless End User provides such notice to McKesson, and McKesson expressly agrees in writing that such rights are granted under this EULA.