EVINCE DIAGNOSTICS, LLC
SOFTWARE LICENSE TERMS & CONDITIONS
These Terms and Conditions, if agreed to by Customer, constitute a binding legal agreement (the “Agreement”) with Evince Diagnostics, LLC (“Evince”) regarding the licensing of access to and use of Evince Software (the “Software”) and Evince Diagnostic Interviews (the “Diagnostic Interviews”) contained in the attached Purchase Order issued by Evince (the “P.O.”). Please read them carefully. If you accept this document below on behalf of Customer, you are indicating that you have the authority to so bind Customer. If you do not accept this document, you will have no right to access the Software or Diagnostic Interviews. Any provisions of a purchase order or other document or internet file provided by Customer that conflicts with these terms & conditions shall be of no force or effect.
A. “Diagnostic Interviews” means those structured interviews offered to Client through the Software for systematically collecting information relevant to documenting positive diagnostic criteria for various disorders based on the diagnostic criteria formulated at the time by the American Psychiatric Association, or other organizations. Diagnostic Interviews include, but are not limited to, the CAAPE-5 for covering substance use disorders and common co-occurring mental health conditions; the PADDI-5 for similar coverage designed for adolescents; the TAAD-5, for initial evaluation of DUI/DWI offenders or to determine if an individual should present for a treatment intake evaluation; and the SUDDS-5 for substance use disorders.
B. “Software” means the following: (i) system in which diagnostic interviews have been programmed for administration via the Internet as either computer prompted and/or computer administered interviews; (ii) tools programmed for documenting clinician data and information; (iii) system for automating assessment services into electronic medical records.
2. SCOPE OF LICENSE.
Evince grants to Customer a non-exclusive, non-transferable, fully paid, limited license, without right to sublicense, to access and use the Software, and to use the Diagnostic Interviews provided by Evince for that Software as specified in the P.O. The terms “Evince” or “Licensor” may be used interchangeably in this Agreement. The term “Customer” or “Licensee” may also be used interchangeably in this Agreement. Customer is authorized to use the Software based on a number of assessment administrations defined in the P.O. Customer is authorized to use the Software only in Customer's normal course of activities for Customer's own use, including use of the Diagnostic Interviews with Customer’s patients. The Software may be used concurrently by no more than the number of permitted concurrent users of Customer specified. Except as expressly permitted, Customer may not make, or have made any copies of the Software or Diagnostic Interviews, other than the pdf file generated as output from the interviews. Nothing herein entitles Customer to the receipt of, use of, or access to source code or any native files. Customer shall not reverse assemble, reverse compile or otherwise reverse engineer the Software, in whole or in part, or otherwise attempt to obtain the source code, or the function and structure, of the Software. Customer will not reproduce or otherwise copy or distribute the Diagnostic Interviews, nor modify or prepare derivative works of the Software or Diagnostic Interviews.
3. APPLICABLE SOFTWARE LICENSE TERMS.
The applicable software license terms and conditions are deemed to be those terms and conditions in effect as of the time of the issuance of the license. To first utilize the Software and Diagnostic Interviews, the Customer shall purchase a specified number of administrations. This number of administrations may be augmented via future purchases at then current license rates and based on then current license term and conditions.
All ownership rights, title and interest in the Software, Diagnostic Interviews, Documentation, and related Confidential Information (as defined below), and all copies derivatives and abstracts thereof, including without limitation all copyrights, patent rights, trademark rights, trade secret rights, inventions, mask work rights and other proprietary rights therein and thereto, are and shall remain exclusively in Evince or its licensor(s).
5. PAYMENT & DELIVERY TERMS.
Customer agrees to prepay the license fees for the licensed products as specified on the P.O. and subsequent invoice. The license fees do not include taxes, shipping, or handling charges (if applicable), all of which shall be paid by Customer, except for taxes based on Evince's net income. The scheduled delivery date shall be that date set or acknowledged by Evince in accordance with the P.O. All delivery dates are estimated. Customer shall pay for the licensed products prior to delivery unless expressly agreed in writing by Evince. Any and all payments made under the provisions of the Agreement shall be payable in the currency as listed on the accompanying invoice. Evince reserves the right to request such payments be made by wire transfer according to instructions for such transfer as specified by Evince from time to time. The Software is subject to disconnection if payment is not received as agreed by the Parties. Evince may, at its option, make delivery in installments and invoice and receive payments for each installment. Non-fulfillment of payments will be considered breach.
Customer shall keep the Software, Diagnostic Interviews, Documentation and related information disclosed by Evince on a confidential or proprietary basis (collectively "Confidential Information") confidential and shall not, without the prior written consent of Evince, directly or indirectly provide, disclose or otherwise make available any item of Confidential Information in any form to any person other than to those of Customer's employees whose job performance requires access to the Confidential Information and are obligated to the confidentiality and restricted use provisions herein. Customer agrees to use the Confidential Information only as expressly authorized. Customer shall take all reasonable actions to protect the security of the Confidential Information and control its employees' use, copying and disclosure. Customer will immediately inform Evince of any violation and use Customer's best efforts to remedy any such breach. Customer's non- disclosure obligations and use restrictions continue with respect to any item of Confidential Information until Customer can show that it: (a) was rightfully known to Customer prior to disclosure by Evince; (b) is or becomes publicly available through a source other than Customer and through no wrongful act or failure to act by Customer; or (c) has been rightfully disclosed to Customer by an unrelated third party, without an obligation to keep it confidential.
7. LIMITED WARRANTY.
Evince warrants it has the right to license the Software and Diagnostic Interviews. Evince warrants, the Software and Diagnostic Interviews will be free from material errors and that the Software, if not modified and if properly used in accordance with the manual therefor, will conform substantially to Evince's current documentation and will be free from manufacturing defects or Software configuration errors. Evince's total liability will not exceed the actual amount paid to Evince by Customer for the failing Software. Evince will not be liable for the costs of substitute software or services. EVINCE EXCLUDES AND DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE STATUTORY WARRANTY OF NONINFRINGEMENT. CUSTOMER EXPRESSLY WAIVES ANY AND ALL SUCH WARRANTIES.
8. LIMITATION OF LIABILITY.
LIMITATION OF LIABILITY. EVINCE NOR ITS WILL BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF EVINCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EVINCE'S ENTIRE LIABILITY UNDER OR RELATED TO THIS AGREEMENT IS LIMITED TO THE REMEDIES SPECIFIED BY THIS AGREEMENT. EVINCE'S LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE FEES PAID FOR THE APPLICABLE SERVICES OR FOR THE LICENSE OF THE LICENSED PRODUCT THAT GAVE RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY ALSO APPLIES TO MAINTENANCE AND SUPPORT SERVICES. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY TO FULFILL ITS ESSENTIAL PURPOSE.
If promptly notified in writing by Licensee of such action, Licensor agrees to defend or settle at its option, and hold Licensee harmless from, any action at law or in equity finally adjudicated against Licensee arising from a claim that Licensee's use of the Licensed Products or documentation under this Agreement infringes any United States patent, copyright, or proprietary right; provided that Licensee shall give Licensor the right to control and direct the investigation, preparation, defense, and settlement of each such claim and Licensee shall fully cooperate with Licensor or its designee in connection with the foregoing; further provided, Licensor may, immediately upon notice of such an infringement claim, replace all or part of the Licensed Products to make it non infringing or Licensor may obtain the right for Licensee to use the allegedly infringing Licensed Products. The foregoing is Licensee's sole and exclusive remedy for any claim of infringement of intellectual property rights against Licensee's use of the Licensed Products.
Software piracy is illegal and Evince and its affiliates reserve the right to take all legal steps to stop piracy of their products and pursue those who take part in these activities. As part of these anti-piracy efforts, the Software or Diagnostic Interviews may contain security mechanisms intended to detect the installation or use of illegal uses of the Software or Diagnostic Interviews, and collect and transmit data relating to those illegal copies, and installation or use thereof, to Evince and/or its affiliates, and/or their agents, contractors, suppliers, successors and assigns. By using the Software or Diagnostic Interviews, Customer agrees to such detection, collection and transmission, as well as to the use of such data, for the purposes of identifying illegal usage and protecting and enforcing intellectual property rights.
11. TERMS & TERMINATIONS.
Either party may terminate the license for the Software or Diagnostic Interviews upon written notice to the other party, if the other party violates any provision of these terms & conditions, or if the other party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under federal or state statues, becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or has wound up or liquidated its business. Upon termination, all amounts owing to Evince accelerate and become immediately due and payable in full. The payment, ownership, confidentiality and compliance with laws provisions survive termination.
12. COMPLIANCE WITH LAWS.
The Parties agree to comply with all applicable laws and regulations. The parties agree that, to the extent required by Legal Requirements, the services provided under this Agreement will comply in all material respects with all federal and state-mandated regulations, rules, or orders applicable to the services provided herein, including but not limited to regulations promulgated under Title II, Subtitle F of the Health Insurance Portability and Accountability Act (Public Law 104-91) (“HIPAA”), as amended. Each of the Customer and Evince is and has been in compliance in all material respects with HIPAA. Additionally, each of the Customer and Evince is and has been in compliance in all material respects with any state laws governing the privacy of medical information and all material Contracts that involve the use or disclosure of protected health information as defined by HIPAA. Customer shall indemnify Evince for any liability or claim, which may arise from Customer's direct or indirect export of any Diagnostic Interviews or Customer’s violation of any HIPAA regulations or any other state laws governing the privacy of medical information.
13. USE OF LICENSEE'S NAME.
Licensee agrees that, unless notified by Customer in writing within seven days of the acceptance of this license, Evince may freely use Licensee's name without charge and may disclose that Licensee is a licensee of Evince products or services in Evince advertising, press, promotion and similar public disclosures with respect to the Software, Diagnostic Interviews, and professional services; provided, however, that such advertising, promotion, or similar public disclosures shall not indicate that Licensee in any way endorses any Evince products, without prior written permission from Licensee. Licensee also agrees that Evince may issue from time to time press releases regarding the relationship; provided, that the parties mutually agree to the content and timing of such release which approval shall not be unreasonably withheld or delayed.
14. SUCCESSORS AND ASSIGNS.
The Agreement shall be binding on and inure to the benefit of the parties, permitted assigns and legal representatives. Licensee may not assign this Agreement without Evince's prior written consent.
15. GOVERNING LAW.
These terms & conditions shall be governed and interpreted in accordance with the laws of the State of Alabama, USA, without application of its conflicts of law principles and without application of the United Nations Convention on the International Sale of Goods.
16. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and understanding of the parties with respect to their subject matter and may be modified or amended, or any provision thereof waived, only in a writing signed on behalf of the party against which such modification, amendment or waiver is asserted.
17. DISPUTE RESOLUTION.
Any dispute arising under or related to these terms & conditions will be referred to senior management of the parties for resolution and if not so resolved within thirty (30) days from written notice of the dispute given by one party to the other (or such longer period as may be mutually agreed in writing), the dispute will be resolved by binding arbitration administered by the American Arbitration Association conducted in the English language in Mobile, Alabama USA. Judgment on the arbitration award may be entered in any court having jurisdiction. Notwithstanding, either party may at any time apply for injunctive relief in any court having jurisdiction.
18. PURCHASE ORDERS.
All payments or purchase orders are subject to acceptance by Evince, in its sole discretion. Nothing contained in any purchase order, purchase order acknowledgment, or invoice shall in any way modify such terms or add any additional terms or conditions.
19. ACCEPTANCE AND COUNTERPARTS.
This Agreement may be executed in two counterparts, each of which shall be deemed an original and together which shall constitute one and the same instrument. A validly executed counterpart that is delivered by one party to the other via electronic transmission (a “Counterpart Image”) shall be valid and binding to the same extent as one delivered physically, provided that the valid signature is clearly visible in the Counterpart Image. The Parties hereby expressly agree this document may be accepted by Customer/Licensee being presented the terms of this Agreement via a user interface and Customer pressing an “Accept,” or similar button indicating Customer’s ability to read and accept the terms of this Agreement.