PersonalResponse™ End User Licensing and Service Agreement

This End User License and Services Agreement (“Agreement”), is made between a provider (“Client”) that begins using PersonalResponse™ and Smart-ER, LLC, a technology company located in La Grange, Illinois (“Licensor”). The date use begins becomes the “Effective Date.”

WHEREAS, Licensor has developed and is the owner of rights in and title to PersonalResponse™, software that is utilized to assist licensed providers working in ambulatory care centers in following up with their patients (“Software”);

WHEREAS, Licensor wishes to commercially license its Software; and

WHEREAS, Client is willing to be licensee of the Software.

NOW THEREFORE, for and in consideration of the mutual covenants contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.                  Access and Support. 

1.1              Subject to the terms of this Agreement, Licensor hereby grants Client a non-exclusive license to access and use the functionality of the Software, as hosted by or on behalf of Licensor.

1.2              Licensor shall use reasonable efforts to make the Software available for use by Client at least 95% of the time.

1.3              Licensor shall provide reasonable support to Client, including new versions and technical services.

2.                  Term.  The initial term of this Agreement shall begin on the Effective Date.  This Agreement shall automatically renew for successive one (1) month periods unless and until the Client gives Licensor notice of service termination and halts all use of the Software.

3.                  Ownership.

3.1              As between Client and Licensor, Licensor retains all ownership of, and all intellectual property rights in, the Software and all modifications, customizations, enhancements, updates or derivative works related to the Software.  Client shall acquire no rights in the Software other than as set forth in this Agreement.  Client shall not delete, remove, modify, obscure, fail to reproduce or in any way interfere with any proprietary, trade secret or copyright notices appearing on or incorporated in the Software. 

3.2              As between Client and Licensor, Client shall remain the owner of all data entered into the Software, including all information related to Client’s patients (the “Patient Data”) and any other data Client enters into or generates through use of the Software (collectively with the Patient Data, the “Client Data”).  Licensor understands that aggregated, de-identified data may be used for benchmarking and marketing purposes.

4.                  Confidential Information and HIPAA.

4.1              Each party acknowledges that it will be exposed to the Confidential Information (as defined herein) of the other party throughout the course of this Agreement.  Licensor and Client agree to exercise reasonable care to protect the Confidential Information of the other party from unauthorized disclosure, and such reasonable care shall be no less than what each party uses to protect its own trade secrets and Confidential Information.  Licensor and Client may disclose the Confidential Information of the other party to the receiving party’s employees and/or agents, without the express written consent of the other party, but only when the disclosure is deemed necessary to perform its obligations under this Agreement.  In addition, the disclosing party shall inform said employees and agents, by way of policy and agreement, that they are bound by the obligations of confidentiality listed herein.  Licensor’s Confidential Information consists of: (a) all information, including the source code, regarding the Software and related technology; and (b) any other information Licensor desires to protect against unrestricted disclosure, for which Licensor will notify Client in writing.  Client’s Confidential Information consists of: (i) all Client Data; and (ii) any information related to Client’s business learned though Licensor’s performance of the obligations set forth in this Agreement.

4.2              Confidential Information shall not include any information that (a) is already in the possession of the receiving party; (b) is independently developed by the receiving party; (c) is or becomes publicly available without any breach of this Agreement; (d) is rightfully received by the receiving party from a third party without any obligation of confidence; or (e) is released for public disclosure by the disclosing party.  The foregoing exceptions shall not apply to Patient Data.

4.3              Licensor acknowledges that it may be exposed to Patient Data.  To the extent that Licensor is exposed to Patient Data, Licensor agrees to comply with the provisions of the Health Information Portability and Accountability Act of 1996, as amended from time to time (“HIPAA”).

5.                  Warranties.  

5.1              Licensor warrants that the Software will perform in accordance with the documentation and specifications.

5.2              Licensor warrants that the Software does not and shall not infringe the patent or any other proprietary right of any third party.

5.3         Any data construed as Personal Health Information (PHI) shall be subject to Smart-ER's HIPAA Privacy Policy.

6.                  Limitation of Liability.  Except for violation of HIPAA or any other laws, rules or regulations, or claims arising from gross negligence or willful misconduct, in no event shall Licensor be responsible for any loss or damage to Client or any third parties caused by Client’s use of Software.

7.                  Indemnification.  Licensor shall, at its own expense, defend, indemnify and hold harmless Client and Client’s officers, directors, agents and employees from and against any and all damages, costs and expenses, including reasonable attorneys’ fees, incurred by Client or Client’s officers, directors, agents and employees in connection with: (a) an actual or alleged third party claim that the Software, services or use thereof infringes any patent or other proprietary right of any other person or entity; or (b) the violation of HIPAA to the extent attributable to Licensor or its employees, directors, officers, subcontractors, agents, or other members of its workforce.  Client shall provide Licensor with prompt written notice of any claim subject to the provisions of this Section 8, permit Licensor to control the defense, settlement, adjustment or compromise or any such claim and cooperate with Licensor in the defense or settlement of any such action. 

8.                  Termination.

8.1              Either party may terminate this Agreement at any time by providing thirty (30) days’ prior notice to the other party.

8.2              Upon termination of this Agreement, Client agrees to cease use of the Software within thirty (30) days.  Licensor shall promptly return to Client all Client Data in an electronic format.

9.                  Publicity.  Licensor shall not make any public or private announcements, media releases, advertising or similar publicity in any form relating to Client’s name, image, or logo without the consent of Client.

10.              General Interpretation. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement shall be deemed the language chosen by the parties to express their mutual intent. This Agreement shall be construed without regard to any presumption or rule requiring interpretation against the party causing such agreement or any portion thereof to be drafted, in favor of the party receiving a particular benefit under the Agreement. No rule of strict construction shall be applied against any person.

11.              Informal Dispute Resolution. Licensor and Client each agree that any dispute, controversy, or claim arising out of or related to this Agreement (the “dispute”) shall go through the following informal dispute resolution process prior to submission to arbitration. First, the dispute shall be submitted in writing to the Account Managers relating to this Agreement for both Licensor and Client. If the Account Managers cannot resolve the dispute within 7 days of receipt of the dispute, the dispute shall be submitted in writing to a Vice President of Licensor and a Vice President of Client. If a Vice President of Licensor and a Vice President of Client cannot resolve the dispute within 7 days of receipt of the dispute, the dispute may be submitted to arbitration.

12.              Arbitration. Any dispute, controversy, or claim arising out of or related to this Agreement which has not been mutually resolved by the parties in accordance with the informal dispute resolution process set forth above shall be determined and settled according to the Commercial Arbitration Rules of the American Arbitration Association except as expressly set forth herein.  Either party may demand arbitration by giving written notice to the other party stating the nature of the controversy. A single arbitrator shall be selected by both the parties and the arbitration shall be held in Cook County, Illinois or such other place as chosen by the parties. The arbitrator shall be a licensed attorney with a minimum of 10 years experience in complex commercial litigation matters. The arbitrator shall allow such discovery as is appropriate for the purposes of the arbitration in accomplishing fair, speedy, and cost-effective resolution of disputes. The arbitrator shall consider the parties’ respective discovery costs in connection with any such arbitration. Any award rendered by the arbitrator shall be final, conclusive, and binding upon the parties and a judgment may be enforced in any court having jurisdiction. Client agrees that it shall treat the arbitration itself and the outcome of the arbitration as confidential.

13.              Remedies. Notwithstanding Sections Informal Dispute Resolution and Arbitration above, the parties agree that either party’s failure or neglect to perform, keep, or observe any term, provision, condition, covenant, warranty, or representation contained in this Agreement, the confidentiality agreement, or any other agreement between them will cause the other party immediate and irreparable harm and that the aggrieved party is, in addition to all other remedies available to it, entitled to immediate injunctive and equitable relief from a court having jurisdiction to prevent any breach and to secure the enforcement of its rights hereunder

14.              Miscellaneous.  This Agreement shall be deemed to have been executed and delivered in the State of Illinois, and shall be governed and construed in accordance with the laws of the State of Illinois without regard to its conflict of laws principals.  All actions or proceedings relating to this Agreement will be brought exclusively in the state and federal courts of Cook County, Illinois.  Each party consents to the personal jurisdiction of these courts.   The relationship of the parties is that of independent contractors and neither party has any authority to bind the other party in any transaction or make any representation on behalf of the other party.  No change or modification to this Agreement shall be valid unless in writing and signed by both parties.  The waiver by either party of a breach or violation of any provision of this Agreement shall not operate as, or be construed as, a waiver of any subsequent breach of the same or any other provision hereof.  Neither party may assign this Agreement without the written consent of the other party.  This Agreement shall apply to and bind the successors and permitted assigns of the parties.  In the event any provision of this Agreement is held to be unenforceable, the remainder of this Agreement shall remain in full force and effect.  This Agreement supersedes all previous negotiations, understandings and agreements between the parties with respect to its subject matter, and constitutes the entire Agreement.  This Agreement is a collaborative drafting effort and the provisions of the Agreement shall not be construed against either party as the purported drafter.  Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications.  This Agreement may be executed in one or more counterparts, with signatures delivered by fax or emailed PDF documents with subsequent delivery of original signatures, all of which counterparts when taken together shall comprise one instrument.