Terms of Use
Last modified September 7, 2021
THE FOLLOWING TERMS OF USE APPLY TO USERS OF EXCELICARE’S SOFTWARE, PRODUCTS, SOLUTIONS, AND SERVICES WHO ARE NOT COVERED UNDER AN EXISTING EXECUTED AND ACTIVE SOFTWARE AND SERVICES AGREEMENT WITH EXCELICARE. FOR USERS WHO ARE COVERED UNDER AN EXISTING SOFTWARE AND SERVICES AGREEMENT, THE TERMS OF THAT AGREEMENT TAKES PRECEDENCE AND GOVERNS THE USE OF EXCELICARE’S SOFTWARE, PRODUCTS, SOLUTIONS, AND SERVICES.
THIS TERMS OF USE AGREEMENT (“Agreement”) forms a legal binding agreement between Practive Health, Inc. dba Excelicare, a Delaware corporation, located at 12218 Bradford Green Square, Box 206, Cary, North Carolina (“EXCELICARE”), and You, the User (“You” or “Your”) each a “Party” and together the “Parties”.
EXCELICARE delivers Software, Products, Solutions, and Services designed to simplify navigation of the healthcare system and ease collaboration among patients, their support group of family and friends, and providers.
By accessing and/or using EXCELICARE’s Software, Products, Solutions or Services You acknowledge and confirm that You have read, understood, and agree to be bound by this Agreement. Your acceptance of these terms is also binding on any entity on whose behalf you registered to use EXCELICARE’s Software, Products, Solutions or Services.
NOW THEREFORE, in consideration of the mutual representations, warranties, covenants, and additional terms and conditions contained herein, the Parties agree as follows:
DEFINITIONS
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DURATION
This Agreement is effective on the date that You are first provided access to EXCELICARE’s Software, Products, Solutions and/or Services (“Effective Date”) and shall remain in effect for the Purchase Period unless earlier terminated as provided herein. This Agreement will automatically renew for a further term (“Renewal Period”) equivalent to the original Purchase Period and continue to do so until either Party provides the other with written notification of non-renewal.
Notification of non-renewal must be provided at least thirty (30) days prior to the end of the original Purchase Period or subsequent Renewal Period, whichever is in effect.
Renewal of this Agreement is subject to EXCELICARE’s consent, which will not unreasonably be withheld. You agree that EXCELICARE may adjust associated charges as a condition of providing consent for renewal. In the event of an adjustment of associated charges, EXCELICARE will provide notification by email at least sixty (60) days in advance. If You do not consent to the adjustment of charges, it is your responsibility to provide EXCELICARE with a notification of non-renewal. Should you choose not to renew this Agreement, you shall be responsible for migrating or arranging for a backup of your Data prior to expiration of the Agreement.
CONDITIONS OF USE
General Rights. Up until the expiration, cancellation, suspension, or termination of this Agreement, EXCELICARE grants You a limited, non-transferable, non-exclusive, non-assignable, non-sublicensable right to access and use the Software, Products, Solutions and/or Services provided under this Agreement solely for purposes pursuant to your internal business.
General Restrictions. You agree to not: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share or otherwise commercially exploit or make the Software, Products, Solutions and/or Services provided under this Agreement available to any third party other than as stated in this Agreement; (ii) make derivative works of, disassemble, reverse compile or reverse engineer any part of EXCELICARE’s Software, Products, Solutions or Services, or access the Software, Products, Solutions or Services in order to build a similar or competitive product or service (or contract with a third party to do so); (iii) use the Software, Products, Solutions or Services to send spam or otherwise send messages in violation of applicable laws; or (iv) use the Software, Products, Solutions or Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material; (v) use the Software, Products, Solutions or Services in any manner other than for what it has been intended and as authorized by EXCELICARE. You may not remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings within EXCELICARE’s Software, Products, Solutions or Services.
You agree that if EXCELICARE has reasonable grounds for believing You have significantly breached this Agreement, EXCELICARE may immediately suspend all or any access by You to EXCELICARE’s Software, Products, Solutions, or Services, and remove or disable access to anything or anyone that contravenes the restrictions.
Use by Affiliated Entities. Your obligations and limitations that are set forth in this Agreement are also applicable to Affiliated Entities provided access to the Software, Products, Solutions or Services. You are responsible for ensuring that your employees and Affiliated Entities (and their employees, agents and/or authorized representatives) are aware of and comply with the terms of this Agreement. Any breach of this Agreement by such entities or individuals shall be deemed to be a breach by You, and You will be liable for such breaches.
Usage Limitations. You or a designated User are authorized to use the Software, Products, Solutions and/or Services provided under this Agreement. A “User” means an individual human being and may be your employee, consultant, contractor or agent, or an Affiliated Entity. User rights are granted for a specific time period. User rights may be transferred from one individual person to another but may not be shared or used concurrently by more than one (1) person at a time. Login credentials may not be shared or concurrently used by more than one (1) individual person.
OWNERSHIP
EXCELICARE Ownership. EXCELICARE retains all right, title and interest, including all IPR in and to (i) the Products, the Software, the Documentation, and all modifications, derivatives, and/or enhancements to the Software as developed and/or owned by EXCELICARE, and all inventions or discoveries embodied within the Software, (ii) proprietary education or training content, (iii) pre-existing materials related to EXCELICARE’s professional services processes and methodologies, and (iv) all Deliverables and derivatives later used by EXCELICARE. EXCELICARE shall have all right, title, and interest to all new product created in the course of performing Services under this Agreement.
Your Ownership. All Proprietary Materials for which the IPR are owned, developed, or licensed by you or on your behalf, independent of and separate from this Agreement.
Ownership of Data. Your Data remains your sole property. Your Data shall be considered Confidential Information, subject to the terms of the Agreement. EXCELICARE Personnel shall not have the right to copy Data except to the limited extent necessary to populate databases used in conjunction with the performance of Services for which You have engaged. Your Data shall not be used by EXCELICARE for any purpose other than that of providing the Services, nor shall your Data be disclosed, sold, assigned, leased, or otherwise disposed of to third parties by EXCELICARE or commercially exploited by or on behalf of EXCELICARE and EXCELICARE Personnel.
PRIVACY
This agreement is governed by EXCELICARE’s Privacy Policy.
EXCELICARE may change our Privacy Policy from time to time. Such changes will not materially reduce the level of protection that we provide for You, your data, and your confidential information during the term of this Agreement.
EXCELICARE provides Software, Products, Solutions, and Services for use globally and takes efforts to ensure that all data is retained in-country and in compliance with local requirements. Access to protected information is restricted as per EXCELICARE’s Privacy Policy.
You agree to provide any information, and to obtain any consents, required for your use of EXCELICARE’s Software, Products, Solutions and Services including those in relation to the collection, use, disclosure, and storage of protected information.
To the extent that You provide personal and/or health information of third parties and/or minors You represent and warrant that You have the lawful authority to provide this information and are in compliance with all applicable laws, rules, and regulations.
GOVERNING LAW AND DISPUTE RESOLUTION
These Terms and all documents incorporated by reference shall be interpreted, governed by, construed, and enforced in accordance with the laws of the State of Delaware, USA, (and any US Federal laws applicable therein).
In the event of a dispute, the Parties shall first attempt to resolve through direct negotiation by authorized employees from each Party.
For any dispute that the Parties fail to resolve by negotiation, the Parties agree to next attempt to resolve such dispute through non-binding mediation. The mediation shall last at least eight (8) hours (unless otherwise agreed to by the Parties). The Parties shall equally share the cost of the mediator. In the event that the Parties cannot agree to a mediator, then EXCELICARE shall propose five (5) experienced, neutral mediators, from which one (1) shall be selected.
As party to these Terms, You hereby agree to irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Delaware, USA (including the Federal courts as applicable therein) to settle any disputes arising out of or in any way related to these Terms, all documents incorporated by reference and your relationship with EXCELICARE.
TERMINATION
EXCELICARE may, by written notice, immediately terminate the Agreement, or suspend performance of our obligations under this Agreement for a specified period, if any of the following events occur:
- You are in material breach of any term, condition, or provision of the Agreement, which breach, if capable of being cured, is not cured (or, if the breach is not capable of being cured, discontinued with appropriate changes to ensure that it is not repeated) within seven (7) days after written notice of such breach; or
- You (i) terminate or suspend your business, or (ii) become insolvent, admit in writing your inability to pay debts as they mature, make an assignment for the benefit of creditors, or become subject to direct control of a trustee, receiver, or similar authority, or (iii) become subject to any bankruptcy or insolvency proceeding under federal or state statutes.
Upon termination, suspension, or expiry of this Agreement, you shall cease all use of EXCELICARE’s Software, System and Services. The following provisions will survive termination, suspension, or expiry of this Agreement: (a) Ownership, (b) Confidentiality, (c) Limitation of Liability, (d) Indemnification, and any other provision of this Agreement that must survive to fulfill its essential purpose and to assure compliance with the preservation of confidentiality as further described hereto.
Upon termination, suspension, or expiry of this Agreement, you shall be responsible for migrating or arranging for a backup of your Data. You agree and acknowledge that EXCELICARE shall have no obligation to retain any information relating to you (including User Data and Patient Data) and that all such information may be irretrievably deleted by EXCELICARE after one (1) month from the date of any suspension, termination, or expiry of this Agreement.
CONFIDENTIALITY
General. Each Party acknowledges and agrees that any information disclosed by one Party (a “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder and in connection with the purpose of this Agreement shall be deemed as Confidential Information. Confidential Information shall also include such information that is identified as confidential or should be recognized as confidential under the circumstances, including, but not limited to, information relating to a Party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities, which is the exclusive property of the Disclosing Party. The Receiving Party shall retain all of the Disclosing Party’s Confidential Information in strict confidence and not disclose it to any third party or use it in any way except as permitted by the Agreement without the Disclosing Party’s prior written consent. The Receiving Party shall exercise at least the same amount of diligence in preserving the secrecy of the Confidential Information as provided by the Disclosing Party as it uses in preserving the secrecy of its own Confidential Information of a similar nature, but in no event less than reasonable diligence. The Receiving Party may use Confidential Information only as reasonably necessary to perform its obligation or exercise its rights under the Agreement. Confidential Information shall exclude information to the extent that: (a) it was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (b) it was known to the Receiving Party, without restriction, at the time of disclosure as proven by the files of the Receiving Party in existence at the time of disclosure; (c) it becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of the Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (d) it is independently developed by the Receiving Party without reliance on access to the Confidential Information of the Disclosing Party. In the event that the Receiving Party becomes compelled by law, court order or any governmental or regulatory authority to disclose any Confidential Information of the Disclosing Party, it shall: (i) promptly provide the Disclosing Party with notice thereof prior to any disclosure, if possible; (ii) use reasonable efforts to minimize the disclosure of any of the Disclosing Party’s Confidential Information; and (iii) cooperate with the Disclosing Party to seek to obtain a protective order or other appropriate remedy. If a protective order or similar order is not obtained by the date by which the Receiving Party must comply with the request, the Receiving Party may furnish that portion of the Confidential Information that it determines is legally required to furnish.
Ownership of Confidential Information. Each Party shall maintain sole and exclusive ownership of all right, title, and interest in and to its own Confidential Information, including ownership of all copyrights, patents and trade secrets pertaining thereto. Nothing contained in this Agreement will be construed as granting to any other party any rights, by license or otherwise, in the Confidential Information, except as expressly set forth herein.
Protected Health Information. The Parties acknowledge that certain services may involve the use and disclosure of certain Protected Health Information (“PHI”) that is subject to country-specific privacy and security regulations. The Parties agree to comply with these laws and regulations. The Parties shall also comply with all other applicable health care confidentiality and security laws and regulations.
Permitted Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information only to its employees, officers, agents, consultants or sub-contractors (collectively, “Representatives“) who need to know such information for the purposes of enforcing such Party’s rights and carrying out such Party’s obligations under the Agreement and who have executed a Confidentiality Agreement that provides for no less of a degree of protection of the Disclosing Party’s Confidential Information than is provided for under the Agreement. Each Party agrees that it shall be responsible for the compliance of its Representatives with the terms and conditions contained in the Agreement. Any and all disclosure of Confidential Information not contained in this Section shall require previous written notification from a Disclosing Party.
Notice. Each Receiving Party shall notify the other Party as soon as possible in the event of any disclosure or use of, or unauthorized access to, the Disclosing Party’s Confidential Information in violation of this Section and shall promptly and fully cooperate with the Disclosing Party regarding any such disclosure use or access, and shall promptly take any actions that are necessary or appropriate, or reasonably requested by the Disclosing Party, to avoid or mitigate any adverse effects or further disclosure or use thereof or access thereto.
Return or Destruction of Confidential Information. Except as set forth in the Agreement, upon either termination, suspension or expiry of the Agreement, the Receiving Party shall promptly cease use and return or, at the Disclosing Party’s option, destroy, all of the Disclosing Party’s Confidential Information and all copies thereof certifying in writing that such return and destruction is complete. In addition, each party may retain an archival copy if required by Applicable Law and disclosed in the written certification of return and destruction. All such copies shall remain subject to the terms and conditions of the Agreement. For avoidance of doubt, obligations set forth in this Section shall survive the expiry, suspension, or earlier termination of the Agreement. Any Confidential Information that cannot be (or is not for any reason) returned or destroyed (such as oral Confidential Information) shall remain confidential, in accordance with the terms of this Agreement.
LIMITATION OF LIABILITY
EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACH OF OBLIGATIONS ASSOCIATED WITH TERMINATION, OR FOR LOSSES OR DAMAGES INCURRED DUE TO WILLFUL ACTS OR OMISSIONS OR DUE TO GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT, EXCELICARE SHALL HAVE NO RESPONSIBILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR ANY LOSS OF REVENUE, PROFITS, DATA OR DATA USE ARISING OUT OF THIS AGREEMENT UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND IN NO EVENT SHALL EXCELICARE’S AGGREGATE LIABILITY FOR DIRECT DAMAGES EXCEED THE GREATER OF THE TOTAL AMOUNT PAID TO EXCELICARE FOR THE RELEVANT PERIOD BUT NO MORE THAN THREE (3) MONTHS PRECEEDING THE IMPOSITION OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT EXCELICARE AND ITS LICENSEES PLAY NO ROLE IN THE DELIVERY OF PATIENT CARE TO YOUR PATIENTS.
INDEMNIFICATION
You agree to defend, indemnify, and hold harmless EXCELICARE, and its Affiliates, directors, officers, and employees from and against any demands, damages, or liabilities (including reasonable attorneys’ fees) arising from a third-party claim of negligent, reckless, or willful misconduct of you or any individual or entity acting on your behalf, or breach of this Agreement by you.
EXCELICARE will have the exclusive right to defend any indemnified claim (including the right to select and control the work of counsel) and make settlements thereof at its own discretion. You may not settle or compromise any indemnified claim, action, or allegation, except with prior written consent of EXCELICARE.
REPRESENTATIONS AND WARRANTIES
You represent and warrant that you have full right, power, and authority to enter into this Agreement and to perform your obligations and duties under this Agreement, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreements. You further represent and warrant that you will comply with all applicable state and federal laws, regulations, and ordinances regarding your performance under this Agreement.
EXCELICARE represents and warrants that the Software and Services will perform as stated in the Agreement except for de minimis nonconformities. You understand that defects or issues may be due to defective, corrupted, or bad quality Customer Data and the above warranty is so conditioned.
EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT OR TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, EXCELICARE DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCELICARE DOES NOT GUARANTEE OR WARRANT THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED.
GENERAL
Waiver. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will not be construed to be a waiver of such provisions, or in any way prejudice, restrict, or affect the right of either Party to enforce such provision thereafter.
Entire Agreement. The Agreement encompasses the entire agreement between the Parties with respect to the subject matter hereof. This Agreement may not be altered, amended, or modified except by written instrument signed by a duly authorized representative of EXCELICARE.
Representations. You acknowledge and agree that in entering into this Agreement you do not rely on any statement, representation (whether innocent or negligent) assurance or warranty (whether or not in writing) of EXCELICARE, a EXCELICARE Affiliate or any other person (whether or not party to this Agreement) other than as expressly set out in the Agreement.
Severability. If any provision, or portion thereof, of this Agreement is or becomes invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect.
Language. The Agreement is written in the English language which shall be the official language governing any interpretation of the Agreement. Headings to Sections of the Agreement are for convenience of reference only and shall not affect the interpretation of the Agreement. The terms “herein“, “hereof“, “hereunder” and similar expressions refer to the Agreement and not to any particular Section or other portion hereof. Unless otherwise specified, “days” means calendar days. Any use of the terms “including” or “include” or the phrase “e.g.” in the Agreement shall mean “including, without limitation.” Wherever used in the Agreement, “will” and “shall” are used in an imperative sense while “may” is used in a permissive sense. Unless otherwise specified, all references to notice shall require written notice.
Assignment. You may not transfer or assign this Agreement, whether in whole or in part, the benefit of this agreement or any of the rights or obligations contained in it, including by merger or operation of law, without EXCELICARE’s prior written consent, except to a successor in interest following a merger or other change of control.
Survival. The provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, including, without limitation, the provisions regarding confidentiality, disclaimer of warranties, indemnification, and limitation of liability.
Force Majeure. EXCELICARE shall not be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, flood, wind, storm, lightening, or similar act of God, or by embargo, acts of sabotage, terrorism, riot or civil unrest, epidemic or pandemic, internet outages, or mandatory compliance with any governmental act, regulation or request (“Force Majeure Events”). If a Force Majeure Event occurs and disrupts the services to be provided under this Agreement, the Agreement shall be deemed extended by the length of the Force Majeure Event.
Notices. Any notices provided for under the Agreement must be in writing unless expressly specified otherwise. Such written communication shall expressly include email. Any notices shall be sent to the respective addresses as set forth at the beginning of this Agreement or to such different address as either Party may designate from time to time pursuant to this Section and shall be deemed given: (a) upon delivery if delivered in person; (b) three (3) Business Days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) one (1) Business Day after deposit with a national overnight courier; (d) upon confirmed transmission if sent via e-mail or fax, with a confirmation copy sent via overnight mail.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
COMPLIANCE WITH APPLICABLE LAWS FOR PHI
You may handle electronic PHI and be subject to country-specific regulatory requirements including, but not limited to, HIPAA, PHIPA, GDPR, or the NHS Code of Connection. If you are subject to country-specific regulatory requirements, prior to using the Software, Products, Solutions and/or Services provided under this Agreement, to store or transmit PHI, you must notify EXCELICARE to ensure that any additional required agreement is enacted. You are solely responsible for determining whether you are subject to any country-specific regulatory requirements.