Data Usage Terms
1. DATA LICENSE GRANT
1.1 Subject to the restrictions set forth below and payment to CareJourney of all applicable fees and charges related to End User’s use and to End User’s compliance with the terms hereof, End User is hereby granted a personal, non-transferable, and non-exclusive right during the Subscription Term stated in the applicable End User Information Form executed by End User with CareJourney (the “EUIF“) to use the data listed in the applicable EUIF (the “Data”) solely for End User’s internal business purposes in connection with the permitted purpose expressly stated in the EUIF (“Permitted Purpose”) and for no other purpose. The Data will be provided only to the extent CareJourney has and retains access to the data from its third-party data service providers and data sources. In the event CareJourney ceases to have access to the data, CareJourney will take reasonable commercial efforts to provide suitable replacement data.
1.2 End User shall not itself nor permit others to use the Data or any portion thereof for any purpose other than for its internal business purposes, including, but not limited, to copying, selling, renting, leasing, licensing, sublicensing, or distributing the Data or any portion thereof.
1.3 Title to and full ownership of the Data and all intellectual property rights therein (including, but not limited to, all copyrights, patent rights, trade secret rights) belong to CareJourney and its licensors. This Agreement provides only a limited license to use the Data solely for the Permitted Purpose and transfers no ownership or intellectual property interest or title in or to the Data. This Agreement shall not be interpreted to grant End User any right or license in the Data or any portion thereof other than as expressly provided for in this Agreement. The Data, CareJourney’s name, and logo and all other names, logos, trademarks, and icons identifying CareJourney and its programs, Data, and services are proprietary trademarks of CareJourney and any use not expressly provided for in this Agreement is strictly prohibited.
1.4 No right is granted to End User: (i) to create its own database of the Data; (ii) to sell, transfer, export or license the Data or any modified or enhanced data derived therefrom other than as expressly set forth in the Permitted Purpose; or (iii) to publish, disclose, display, or provide the Data or any results obtained from use of the Data except to the extent expressly permitted by the Permitted Purpose.
1.5 Except for such licenses as are expressly granted in this Section 1, End User expressly agrees that CareJourney shall own all right, title, and interest in and to: (a) the Data; (b) all related promotional materials provided by CareJourney; and (c) all copyright, moral, trademark, patent, and other intellectual and proprietary rights in the materials identified in (a) and (b).
1.6 End User agrees: (i) not to use the Data for any illegal purpose, and (ii) to comply with all applicable laws and regulations when using or providing the Data as part of its products and services.
2. FEES AND PAYMENTS
2.1 Data Fees. End-User agrees to pay CareJourney the fees and charges set forth in the applicable EUIF (“Fees”). Unless otherwise stated in the EUIF, all Fees are due and payable within thirty (30) days from the date of CareJourney’s invoice. All Fees and other amounts due and payable under this Agreement (i) shall be payable in United States Dollars, (ii) are exclusive of all applicable taxes, duties, and levies. End-User shall pay or reimburse CareJourney for all, withholding, sales or use taxes, customs or import duties, or levies imposed by any government authority or government agency in connection with this Agreement. Overdue payments are subject to a late payment charge, calculated and compounded monthly, and calculated at a rate of one and one-half percent per month (1.5%). If the amount of the late payment charge exceeds the maximum permitted by law, the charge will be reduced to that maximum amount.
2.2 Actions for Failure to Remit Payments. Should End User fail to submit timely payments in accordance with the provisions of this Section 2, CareJourney may, at its sole option, (i) suspend End User access to or use of the Data; and/or (ii) seek all remedies available to it at law or in equity. End-User shall reimburse CareJourney for any costs of collection, including attorney’s fees.
3. LIMITATION OF LIABILITY
Even if advised of the possibility of loss, liability, damage or expense, neither CareJourney nor its employees, agents or consultants or any parent, subsidiary or affiliates shall be liable for any indirect damages, including any lost profits, data, business, goodwill, anticipated savings, opportunity or use or other special incidental or consequential damages, which End User may suffer as a result of or in connection with the furnishing of the Data including the use or inability to use the Data. CareJourney’s liability, if any, for claimed loss or damage under this Agreement or other with respect to the Data provided to End User shall not exceed the lesser of the aggregate amount actually paid to CareJourney with respect to the Data specified in the applicable EUIF during the twelve (12) months prior to the date(s) of the event(s) giving rise to the liability under this Agreement.
4. DISCLAIMER OF WARRANTIES.
THE DATA IS PROVIDED “AS IS” AND CAREJOURNEY MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND AND ASSUMES NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO (I) THE USE, SUFFICIENCY, OR ACCURACY OF THE DATA, OR (II) ANY SERVICES FURNISHED WITH RESPECT TO THEM. CAREJOURNEY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF CAREJOURNEY HAS BEEN MADE AWARE OF SUCH PURPOSE, WARRANTIES ALLEGED TO ARISE AS A RESULT OF CUSTOM AND USAGE, AND THE WARRANTY AGAINST INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
5. TERM AND TERMINATION
This Agreement shall remain in effect for the Subscription Term specified on the applicable EUIF, provided that CareJourney may terminate this Agreement for breach by End User by giving thirty (30) calendar days advance written notice specifying the breach complained of unless said breach is corrected within the said thirty (30) day notice period, CareJourney may terminate the Agreement in whole or in part immediately upon written notice to End User. Upon termination of this Agreement, End User shall immediately cease further use of Data provided prior to the termination or expiration and delete all such Data from End User’s systems. End-User shall certify such deletion to CareJourney in writing within five (5) business days of termination or expiration this Agreement.
6.1 Prohibition of Assignment. End-User may not assign, transfer or convey this Agreement or any rights or obligations granted hereunder, in whole or in part, to any other person or entity, without the prior written consent of CareJourney.
6.2 Waiver. A waiver of any default, breach, or non-compliance under this Agreement is not effective unless in writing and signed by the party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a party in respect of any default, breach or non-observance or by anything done or omitted to be done by the other party. The waiver by a party of any default, breach, or non-compliance under this Agreement shall not operate as a waiver of that Party’s rights under this Agreement in respect of any continuing or subsequent default, breach or non-observance (whether of the same or any other nature).
6.3 Severability. If any provision or portion of a provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall not be affected, and the remaining terms shall continue in effect and be binding on the Parties, provided that such holding of invalidity or unenforceability does not significantly affect the essence of the Agreement.
6.4 Audit. During the subscription term and for a period of three (3) years thereafter, End User agrees to maintain clear and accurate books and records relating to use of the Data. Such books and records shall be available at their place of keeping for inspection by CareJourney or its representative for the purpose of verifying amounts paid or owing to CareJourney and for determining whether End User has complied with the terms of this Agreement. CareJourney shall provide at least five (5) business days’ advance notice of intent to perform such audit, to which End User may provide ranges of dates and times for such audit, whereafter the parties will mutually agree upon an audit schedule that will occur within not less than thirty (30) days from the date of CareJourney’s notice. Alternatively, the Parties may mutually agree that End User may provide an accounting of the use of Data within a reasonable time after a request from CareJourney for the same. In the event any audit conducted by CareJourney uncovers that End User has failed to comply with the terms hereof or otherwise has underpaid amounts due hereunder by more than five percent (5%) for the period audited, then End User shall (i) pay the amount underpaid to CareJourney within ten days, and (ii) reimburse CareJourney for actual and reasonable costs incurred in connection with the audit including, without limitation, any third-party audit fees and expenses.
6.5 Notice. Any notice or other written communication required or permitted to be given by a Party under this Agreement must be in writing and addressed to the attention of the other Party’s contact identified on the Order Form. Notice shall be delivered by and deemed received either: (i) five (5) business days after the notice has been mailed by certified mail or (ii) the next business day after receipted delivery to a recognized overnight courier or (iii) upon confirmation of receipt (electronic or otherwise) if provided via electronic mail. Notice must be provided also to the email address of a Party. The Parties may amend their respective notices’ contact information upon written notice to the other Party.
6.6 Choice of Law. This Agreement must be construed and enforced according to the substantive laws of the Commonwealth of Virginia in the United States of America. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded in its entirety. The Parties agree to the exclusive jurisdiction of the State and Federal Courts of the Eastern District of Virginia.
6.7 Survival. The Parties’ obligations under this Agreement, which by their nature are intended to continue beyond or to be performed after the termination or expiration of this Agreement shall survive the termination or expiration of the Agreement and continue in effect. The obligations that shall survive termination or expiration include, without limitation, the terms and conditions of this Agreement regarding confidentiality, payment, representations, warranties and liability.
6.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no warranties, representations or other agreements between the parties in connection with its subject matter except as specifically set forth in this Agreement. No supplement, modification, amendment or waiver of this Agreement shall be binding unless executed in writing by CareJourney and End User.
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