This Agreement (the “Agreement”) is entered into on the Effective Date (as defined in the Order Form), by and between Navina and the Customer (each, a “Party” and collectively, the “Parties”).
1. License. Subject to the terms and conditions of this Agreement, Navina hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, subscription based and revocable license to remotely access (i.e. on a SaaS basis) the Navina software (the “Program”) for Permitted Users indicated in the Proposal, and use it for internal purposes (the “Services”). Unless otherwise indicated, the term “Program” also includes any relevant documentation (“Documentation”). Customer may only use the Program in accordance with the Documentation, subject to the use limitations indicated in Customer’s Order Form, the Navina Business Associate Agreement and applicable laws.
2. Electronic Medical Records ("EMR") The Customer acknowledges and agrees that access to Electronic Medical Records ("EMR") is required, which might require permission from the EMR vendor.
3. Payment. The provision of the Services are conditioned on Customer's payment in full of the applicable fees on the payment terms set forth in the Proposal. All fees and other amounts paid hereunder are non-refundable. Any amount not paid when due shall accrue interest at the rate of one and a half percent (1.5%) per month, or such lower maximum amount permitted by law. All amounts payable are exclusive of sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies or duties.
4. Customer Account. The Program may only be used through a Customer account (the “Account”). Such Account may be accessed solely by Customer's employees or service providers who are explicitly authorized by Customer to use the Program in accordance with the Proposal (each, a “Permitted User”).
Customer will ensure that the Permitted Users keep the Account login details secure at all times and comply with the terms of this Agreement; and Customer will be fully liable and responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Account or the Program must be immediately reported to Navina.
5. Prohibited Uses. Except as specifically permitted herein, without the prior written consent of Navina, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Program (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer's rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require Navina to disclose the source code of the Program to any third party; (iv) disclose the results of any testing, use or benchmarking of the Program to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Program’s source code or underlying algorithms; (vi) use the Program in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Program; (viii) circumvent, disable or otherwise interfere with security-related features of the Program or features that enforce use limitations; (ix) export, make available or use the Program in any manner prohibited by applicable laws (including without limitation export control laws); (x) use the Program in a manner that violates any applicable law, including the Health Insurance Portability and Accountability Act ("HIPAA"), and/or (xi) transmit any malicious code (e.g., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with Navina’s product or Services.
6. Customer Data and Analytics Information. As Navina operates the Services, Navina may monitor and process data that Customer will upload to the Program and/or that may be collected as a result of Customer's use of the program, regarding the Customer and/or its patients (the “Customer Data”). As the exclusive owner of the Customer Data, Customer represents that to the extent the Customer Data includes any personally identifiable information or Protected Health Information, as defined in HIPAA ("PHI"), Customer has received the required consents or permits and has acted in compliance with applicable privacy laws (including but not limited to HIPAA), as to allow Navina to use the Customer Data solely in order to perform the Services. Customer shall defend, hold harmless and indemnify Navina (including, without limitation, its affiliates, employees, officers, directors, contractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees, as a result of Customer's breach or failure to meet its above representation. Customer acknowledges Navina may be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, hold and/or manage the Customer Data through Navina's authorized third party service providers as reasonable for business purposes. Notwithstanding the foregoing, any anonymous information which is derived from the use of the Program (i.e., metadata, aggregated and/or analytics information which is not personally identifiable information (“Analytics Information”)) may be used by Navina for any purpose, including for providing the Service, for development, and/or for statistical purposes. For the removal of doubt Navina will be the exclusive owner of the Analytics Information. Navina may store Customer Data for the period Navina views such data as required.
7. Data Sources. The Program contains information licensed to Navina by third parties (including software and databases), some of which are subject to various use restrictions and require certain notices to be provided to users. Please be sure to read and review the applicable documentation as provided in this Section 7.
8. Warranties. Each Party represents and warrants that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate any applicable law, including without limitation, HIPAA. Customer acknowledges and agrees that during the Term, access to EMRs is required, which might require permission from the EMR holder. To that end, Customer represents and warrants that is has obtained (and shall be responsible to obtain) any and all necessary consents and approvals to access such EMR.
9. Intellectual Property Rights. Navina Technologies Ltd. is and shall remain the sole owner of (i) all right, title, and interest, including any intellectual property rights related to the Program and any and all improvements and derivative works, and (ii) any know-how, including methods, logic, techniques, processes, or technologies embodied in or relating to the Program, including any that was created and/or developed during or prior to the provision of the Services, as well as any improvements or derivatives thereof. This Agreement does not convey to Customer any interest in or to the Program other than a limited right to use the Program in accordance with Section 1. Nothing herein constitutes a waiver of Navina Technologies Ltd.’s intellectual property rights under any law.
If prior or during the Term, Navina receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Navina Technologies Ltd. and such shall be considered Navina's Confidential Information; Customer hereby irrevocably and unconditionally assigns to Navina Technologies Ltd. any intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto.
10. Third Party Components. The Program may use or include third party software, files, libraries or components that are subject to third party open source license terms. A list of such components will be provided on demand and may be updated from time to time. Requests of open source code of applicable third party components may be forwarded to: firstname.lastname@example.org
11. Publicity. Customer permits Navina to use its name and logo to state factually that it is a customer on its website, and in any marketing material or publicity.
12. Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, , including without limitation trade secrets and other information related to the products, software, technology, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Navina's Confidential Information shall include the terms of this Agreement, and its attachments (including the Proposal). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
13. LIMITED WARRANTIES. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PROGRAM, DOCUMENTATION, SERVICES AND ANY REPORTS GENERATED AS A RESULT OF THE SERVICES ("REPORTS") ARE PROVIDED ON AN “AS IS” AND "AS AVAILABLE" BASIS. NAVINA DOES NOT WARRANT THAT THE PROGRAM, SERVICES AND/OR THE REPORTS WILL MEET CUSTOMER'S REQUIREMENTS AND DOES NOT WARRANT THAT THE PROGRAM, SERVICES AND/OR THE REPORTS WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. NAVINA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NAVINA DOES NOT VERIFY ANY CUSTOMER DATA WHICH IS PROVIDED TO IT AND NAVINA EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE CUSTOMER DATA IS ACCURATE, CURRENT OR COMPLETE. CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING ALL CUSTOMER DATA AND IS FULLY RESPONSIBLE FOR ANY DAMAGE OR CLAIM IN CONNECTION WITH CUSTOMER DATA OR THE ACCURACY THEREOF.
14. LIMITATION OF LIABILITY. NAVINA SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LOSS OF REVENUE, REPUTATION, OR PROFITS, DATA LOSS, OR DATA USE.
NAVINA’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO NAVINA IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT WILL BE CONSTRUED AS LIMITING NAVINA’S LIABILITY TO THE EXTENT ARISING FROM A NAVINA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
15. Indemnification. Navina agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Program, when used as permitted under this Agreement, infringes intellectual property rights of a third party (“IP Infringement Claim”); and Navina will pay any damages agreed in a settlement or awarded in a final judgment against the Customer that are attributable to any such claim, provided that (i) the Customer promptly notifies Navina in writing of such claim; and (ii) the Customer grants Navina the authority to solely handle the defense and/or settlement of any such claim and (iii) provides Navina with all reasonable information and assistance, at Navina’s expense. Navina will not be bound by any settlement that the Customer enters into without Navina's prior written consent. Navina will not, without Customer’s written consent which shall not to be unreasonably withheld, conditioned, or delayed, agree to any settlement which makes any admission on behalf of Customer.
If the Program becomes, or in Navina's opinion is likely to become, the subject of an IP Infringement Claim, then Navina may, at its sole discretion: (a) procure for the Customer the right to continue using the Program; (b) replace or modify the Program to avoid the IP Infringement Claim; or (c) if options (a) and (b) are not, in Navina's view, commercially reasonable, then Navina may terminate this Agreement and in such event accept return of the affected Program and provide a pro-rata refund for any amount pre-paid by Customer for such returned Program for the remaining unused period of the license. Notwithstanding the foregoing, Navina shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Program made by a party other than Navina or its designee; (ii) the Customer's failure to implement software updates provided by Navina specifically to avoid infringement; or (iii) a combination or use of the Program with equipment, devices or software not supplied or authorized by Navina or not in accordance with the Documentation. This Section states Navina's entire liability, and Customer's exclusive remedy, for claims of alleged or actual infringement.
16. Term and Termination. This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the term stated in the Proposal, and after which this Agreement shall automatically renew for additional one-year terms (the “Term”). Either Party may terminate the Agreement: (i) at the end of the Term by providing at least 90 days prior written notice to the other Party before the auto-renewal of the Term, of its intention not to renew the Term; or (ii) with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured thirty (30) days after having received written notice detailing the nature of the material breach. Upon termination or expiration of this Agreement: (i) the Program license granted to Customer under this Agreement shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete and dispose of all copies of the Documentation; and (iii) any sums paid by Customer until the date of termination are non-refundable, and Customer shall not be relieved of its duty to pay in full all due sums owed by Customer to Navina under this Agreement until the date of termination or expiration hereof. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive including without limitation Sections 3 (to the extent amounts are still due), 5, 6, 9, and 11 to 17. The termination of this Agreement shall not limit Navina from pursuing any other remedies available to it under applicable law.
17. Miscellaneous. This Agreement - including any BAA, Proposals, and any exhibits attached or referred hereto - represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of a breach shall not be deemed a waiver by that Party of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and shall not affect the enforceability of the other provisions of this Agreement. Any use of the Program by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, provided that Navina may assign this Agreement to the successor of all or substantially all of such Party’s assets or business (including by a merger or acquisition). This Agreement shall be governed by and construed under the laws of the State of New York, without reference to principles and laws relating to the conflict of laws. The competent courts of New York, New York shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Navina will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond its reasonable control. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same agreement.