For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
“Authorized Users” means employees of Customer who access and use MIRADOR software at the Facilities.
“MIRADOR” means the Hand Sanitization hardware, software, tracking, and data management solution provided by MIRADOR HEALTH, CORP.
“Confidential Information” means information, content and knowledge concerning the business of the other party and its affiliates, whether or not reduced to writing, including, without limitation, information, content and knowledge pertaining to developments, techniques, data, know-how, methodology, formulations, research, processes, technology, designs, materials, ideas, plans, trade secrets, customers, proprietary information, accounting data, and other information relating to the business of the other party.
“Customer Software” shall mean the client-side portion of MIRADOR application that is accessible via website and client login.
“Documentation” means the user manuals or help guides describing MIRADOR in electronic form and generally made available or provided by MIRADOR to its customers.
“Facility(ies)” means any of Customer’s hospitals or places where medical care is provided under the name of the customer set forth on the initial Order Form or that executes an Order Form for the Services after the Effective Date.
“Order Form” means the document, substantially in the form of the cover page of this Agreement or as otherwise executed by MIRADOR and Customer (or any Customer Facility), on which Customer orders the service and any additional software, product, or service(s) from MIRADOR. Each Order Form shall reference the Effective Date of this Agreement and forms a part of this Agreement. No Order Form shall be binding on MIRADOR until accepted in writing by an authorized officer of MIRADOR.
“Services” means MIRADOR, Customer Software and any other implementation, support, training, and other services with respect thereto set forth on an Order Form.
“Subscription Fees” means the fees payable by Customer for access to and use of MIRADOR, as more specifically set forth on the applicable Order Form.
2. Services; License.
2.1 Provision of Services. MIRADOR will use commercially reasonable efforts to make MIRADOR available to the Customer at the Facilities pursuant to this Agreement during the Term (as defined below).
2.2 Grant of License. If Customer is provided Customer Software by MIRADOR for implementation at a Facility, and subject to the terms and conditions of this Agreement, MIRADOR hereby grants to Customer a limited, non-exclusive, non-transferable, revocable license to use the Customer Software solely for Customer’s internal use in the performance of Hand Sanitization management, tracking, and sanitization data management at the Facility in the normal course of Customer’s business.
2.3 Use Guidelines. Subject to the terms and restrictions herein, during the Term, Customer and Customer’s Authorized Users may access and use MIRADOR solely for Customer’s internal use in the performance of hand sanitization management, tracking, and sanitization data management at the Facility in the normal course of Customer’s business. As between Customer and MIRADOR, Customer is solely responsible for its Authorized Users and for all activities that occur under its account. Customer shall: (i) have sole responsibility for the accuracy and quality of all Customer data input into MIRADOR (ii) prevent unauthorized access to, or use of, MIRADOR and notify MIRADOR promptly of any such unauthorized access or use; and (iii) comply with all applicable federal, state, and local laws, rules and regulations in using MIRADOR. Customer shall not: (A) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make MIRADOR available to any third party; (B) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (C) interfere with or disrupt the integrity or performance of MIRADOR; (D) attempt to gain unauthorized access to MIRADOR or its related systems or networks; or (E) use MIRADOR for unlawful purposes or for any purpose not expressly permitted by this Agreement. If MIRADOR has reasonable grounds to believe that Customer is in violation of this Section 2.3, MIRADOR may suspend or terminate Customer’s access to MIRADOR software immediately upon notice to Customer.
3. Customer Responsibilities.
MIRADOR is accessible with standard computer devices and commonly available via Internet viewer software, provided that such devices must be Microsoft Windows capable. Customer agrees that it shall provide and maintain, at its sole cost and expense, all hardware, software, Internet access and other materials necessary to permit Customer’s and its Authorized Users’ access to and use of MIRADOR as specified by MIRADOR from time to time. Connectivity to the Internet from the Facility must be the equivalent of DSL or T1 or higher. The customer is also responsible for ensuring that dispensers are properly serviced to add sanitizing liquid and battery replacement as needed.
4. Payment Terms.
4.1 Fees and Expenses. Customer shall pay MIRADOR the Subscription Fees and other fees for hardware and Services set forth on the applicable Order Form (collectively, the “Fees”). Customer shall reimburse MIRADOR for all pre-approved travel and living expenses incurred by MIRADOR personnel in performing additional services and/or training services not included on the Order Form in accordance with Customer’s travel policy provided to MIRADOR in advance. All expense charges shall be based on actual out-of-pocket expenses, and no service charge shall be applied.
4.2 Additional Charges. Any additional Services performed by MIRADOR at Customer’s request and for which corresponding fees are not set forth on the applicable Order Form shall be invoiced to Customer at MIRADOR then-current hourly rate.
4.3 Payments. Payments for Fees and expenses are due no later than thirty (30) days after Customer’s receipt of an invoice, therefore. Interest shall accrue on all amounts not paid when due at a rate of one percent (1.0%) per month or the maximum rate allowed by law, whichever is less, from the due date until paid in full. MIRADOR may suspend Customer’s access to MIRADOR application and/or withhold Services hereunder for so long as any undisputed amounts due are delinquent. Customer agrees to pay all costs of collection, including reasonable attorneys’ fees, for any amounts not paid when due.
4.4 Taxes. Customer shall be solely responsible for the payment of all taxes arising out of this Agreement, including any sales, use or property taxes and any taxes that may be determined to be due and owing by Customer at a future date, except that Customer shall not be responsible for any taxes related to or arising from MIRADOR net income. To the extent Customer is exempt from sales taxes for the purchase of any products or Services under this Agreement, Customer must provide MIRADOR with a signed original certificate of exemption and in such event, this Section 4.4 shall not apply to Customer.
4.5 Fee Increases. On each anniversary of the Effective Date, MIRADOR shall have the right in its sole discretion to increase the fees payable hereunder in an amount not to exceed the greater of the increase in the previous year’s Medical Consumer Price Index (MCPI), as published by the Bureau of Labor Statistics or five percent (5%) of the fees in effect immediately prior to the increase.
5. Proprietary Rights.
5.1 Reservation of Rights. MIRADOR software and dispensers are proprietary to MIRADOR, and MIRADOR reserves all rights, title and interest in and to MIRADOR software including all related software and intellectual property rights. No rights are granted to Customer hereunder other than the limited license and access rights expressly set forth herein. For the avoidance of doubt, Customer Software is licensed to Customer hereunder and not sold.
5.2 Restrictions. Customer shall not and shall not permit any third party to: (i) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works based on MIRADOR software and/or Customer Software; (ii) reverse engineer, disassemble or decompile (or attempt to reverse engineer, disassemble or decompile) MIRADOR software, Customer Software, the Dispensing Technology, or any portion thereof; or (iii) access MIRADOR Software, Customer Software, or the dispensing Technology in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics thereof.
5.3 Ownership of Customer Data. The parties agree that all proprietary information and data of Customer provided to or accessed by MIRADOR under this Agreement is and shall remain proprietary to and owned by Customer and its Facilities. The parties acknowledge and agree that MIRADOR will have the perpetual right to compile, combine and aggregate any such data with other data, and otherwise use such aggregate data on a de-identified basis.
6. Confidentiality.
6.1 General Obligations. The parties acknowledge and agree that, during the Term of this Agreement they may receive or be exposed to certain Confidential Information. Each party acknowledges that the Confidential Information of the other is confidential and proprietary and agrees not to disclose such Confidential Information to anyone other than employees or agents of the receiving party who have a need to know such information. In addition, the receiving party agrees that it will not, without the prior written consent of the disclosing party, use the Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Each party shall protect the Confidential Information of the other at least to the same extent it protects its own similar information, but in no event using less than reasonable care. The customer further agrees to keep MIRADOR software, and any documentation provided therewith, confidential and to prevent disclosure thereof to any person, firm, or enterprise other than its Authorized Users. The parties’ obligations of confidentiality shall not apply to information which: (i) is obtained from a third party that did not make a disclosure in violation of a nondisclosure obligation; (ii) is in the public domain not as a result of action by the receiving party or such a third party; or (iii) is required to be disclosed by law or court order; provided, however, that in the event of any such required disclosure, the receiving party shall provide the disclosing party with prompt written notice thereof and shall cooperate with the disclosing party in any attempt to quash, limit or otherwise prevent or limit disclosure.
6.2 Protected Health Information. The parties to this Agreement recognize that the duties of MIRADOR, as defined in this Agreement, are not intended to require the transfer to MIRADOR of Protected Health Information (“PHI”), as such term is defined in the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder (the “HIPAA Privacy Rule”). Because MIRADOR will not maintain, use, disclose or transfer PHI on behalf of Customer, the parties agree that MIRADOR will not be a Business Associate, as defined under the HIPAA Privacy Rule, in connection with this Agreement. Customer shall not disclose PHI to MIRADOR and shall remove all PHI from medical devices, including any associated data storage media, before providing such devices to MIRADOR for maintenance and repair. In the event Customer fails to fully remove PHI from medical devices provided to MIRADOR , MIRADOR shall promptly return such devices to Customer and will not otherwise disclose PHI to any third party except as required by law or approved by Customer.
6.3 Injunctive Relief. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of this Section 6, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. Representations and Warranties.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. MIRADOR represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) MIRADOR software and the Customer Software as provided to Customer by MIRADOR will not contain any viruses, worms, Trojan horses or other malicious code which is specifically designed to permit unauthorized access, delete, disable, deactivate, interfere with or otherwise harm the Services; and (iii) MIRADOR software and the Customer Software shall perform in material conformance with the Documentation.
8. Indemnification; Disclaimer; Limitations on Liability.
8.1 Indemnification by Customer. Customer shall defend, indemnify and hold MIRADOR harmless from and against any awards, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) incurred in connection with allegations, claims, demands, suits or proceedings (collectively, “Claims”) made or brought against MIRADOR arising out of (i) Customer’s breach of this Agreement, (ii) Customer’s use of MIRADOR Software in a manner inconsistent with this Agreement, and/or (iii) the gross negligence or willful misconduct of Customer, its employees or agents; provided, that MIRADOR: (A) promptly gives written notice of the Claim to Customer; (B) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases MIRADOR of all liability); and (C) provides to Customer, at Customer’s cost, all reasonable assistance.
8.2 Indemnification by MIRADOR. MIRADOR shall defend, indemnify and hold Customer harmless from and against any awards, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) incurred in connection with third-party Claims made or brought against Customer arising out of (i) any third-party claim that MIRADOR software or the Dispensing Technology infringes or misappropriates any valid U.S. patent existing as of the Effective Date, copyright, or trademark of any third party, and (ii) the gross negligence or willful misconduct of MIRADOR, its employees or agents; provided, that Customer: (A) promptly gives written notice of the Claim to MIRADOR (B) gives MIRADOR sole control of the defense and settlement of the Claim (provided that MIRADOR may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (C) provides to MIRADOR, at MIRADOR’s cost, all reasonable assistance.
8.3 Disclaimer. MIRADOR SOFTWARE, THE DISPENSING TECHNOLOGY, AND ALL OTHER MATERIALS, EQUIPMENT, SERVICES, SOFTWARE, AND INFORMATION PROVIDED BY MIRADOR ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND MIRADOR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. MIRADOR DOES NOT WARRANT THAT THE OPERATION OF MIRADOR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE PARTIES AGREE THAT, AS BETWEEN CUSTOMER AND MIRADOR, CUSTOMER IS RESPONSIBLE FOR THE ACCURACY AND QUALITY OF CUSTOMER DATA AS INPUT INTO MIRADOR SOFTWARE. CUSTOMERS FURTHER ACKNOWLEDGES AND AGREES THAT MIRADOR HAS NOT REPRESENTED MIRADOR SOFTWARE AS HAVING THE ABILITY TO DIAGNOSE DISEASE, PRESCRIBE TREATMENT, OR PERFORM ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE. THE PARTIES ACKNOWLEDGE AND AGREE THAT MIRADOR DOES NOT PROVIDE MEDICAL SERVICES TO PATIENTS AND IS NOT ENGAGED IN THE PRACTICE OF MEDICINE.
8.4 Limitations on Liability. IN NO EVENT SHALL MIRADOR HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL MIRADORS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER TO MIRADOR DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.5 Allocation of Risk and Essential Basis. The parties hereby expressly acknowledge that the foregoing limitations have been negotiated by the parties and reflect a fair allocation of risk. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different. Customer agrees that any claim or cause of action by Customer arising out of this Agreement must be filed within one (1) year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary.
9. Term and Termination.
9.1 Term of Agreement. The Term of this Agreement shall commence on the Effective Date and continue for the Term set forth on the applicable Order Form.
9.2 Termination. This Agreement may be terminated by a party in the event the other party breaches a material term of this Agreement and fails to cure such breach within sixty (60) days following receipt of written notice from the non-breaching party. This Agreement may also be terminated immediately by MIRADOR in the event Customer breaches Section 2.3 or Section 5 or in the event of a sale of all or substantially all the Customer’s assets, or transfer of a controlling interest in Customer to an unaffiliated third party.
9.3 Effects of Expiration or Termination. Upon expiration or termination of this Agreement, MIRADOR shall immediately terminate Customer’s access to MIRADOR software and Customer shall remove from its computer devices and destroy all copies of Customer Software. Customer shall pay MIRADOR for all work performed up to the effective date of termination and for any other unpaid amounts. Customer may request a copy of all Customer data stored in MIRADOR software; provided, that any data extraction services may be performed at MIRADOR’S then-current time and materials rates. In addition, the Customer shall immediately return to MIRADOR or destroy the dispensing Technology and all Confidential Information of MIRADOR. The following provisions shall survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9.3, 12 and 14.
10. Government Data Rights Notice.
U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose any of MIRADOR commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227 19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements. Any computer software included in MIRADOR Software is “commercial computer software” and the associated documentation is “commercial computer software documentation” as those terms are used in 48 C.F.R. 12.212 (Oct 98) of the Federal Acquisition Regulations and 48 C.F.R. 227.7202 (Oct 97) of the Department of Defense supplement to the Federal Acquisition Regulations and their successors. No government entity shall have any rights in or to the software and/or the documentation except for those rights expressly granted in this Agreement.
11. Export Controls.
The export of MIRADOR software or its content may be subject to restrictions under United States and foreign laws. Customer shall not export MIRADOR software, in whole or in part, to any country outside the United States, whether in tangible or electronic form, via access through some telecommunications method (such as through the Internet or via a dedicated dial-up line accessible from a country outside of the United States), or by disclosing MIRADOR software to a foreign national, without the prior written consent of MIRADOR and then only in compliance with all applicable United States and foreign laws and regulations.
12. Access to Records.
MIRADOR shall retain and, for four (4) years after the termination of this Agreement, upon written request, shall allow the Comptroller General of the United States (the “Comptroller”), the U.S. Department of Health and Human Services (“HHS”) and their duly authorized representatives access to this Agreement and to MIRADOR’ books, documents, and records as are reasonably necessary to verify the nature and extent of the costs of the Services supplied under this Agreement. Such inspection will be available for up to four (4) years after the rendering of such Services. If MIRADOR carries out any of its duties under this Agreement pursuant to a subcontract with a related individual or organization, and if the services provided pursuant to that subcontract have a value or cost of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period, MIRADOR agrees to include this requirement in any such subcontract.
13. Eligibility to Provide the Software and Services.
MIRADOR represents and warrants to Customer, during the Term of this Agreement, MIRADOR and its employees who provide any of the Services (i) have not been excluded from participation in any federal health care program under Section 1128 or 1128A of the Social Security Act; (ii) have not been sanctioned by the OIG; (iii) have not been listed on the OIG’s web site List of Excluded Individuals and Entities (the “LEIE”); (iv) have not been listed on the General Services Administration’s Excluded Parties List System; and (v) possess appropriate state license(s) that have not been sanctioned or limited. MIRADOR shall not at any time during the Term of this Agreement arrange for the provision of Services through a person that does not meet these criteria at the time services are rendered. MIRADOR will notify Customer promptly if MIRADOR or an employee of MIRADOR is convicted of a fraud or felony or is suspended, debarred, or excluded from participation in a federal health care program (as defined in 42 U.S.C. § 1320a-7b(f)).
14. Miscellaneous.
14.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.2 Insurance. MIRADOR, at its own expense, shall provide and maintain insurance during the Term of this Agreement, as follows:
(a) General Liability Insurance (excluding automobile liability) written on an “occurrence” basis with a combined single limit of not less than $1,000,000 per occurrence, and $2,000,000 in the aggregate.
(b) Errors and Omissions Liability Insurance with a limit of not less than $1,000,000 per occurrence and $1,000,000 in the aggregate.
Upon the written request of the Customer, MIRADOR shall provide the Customer certificates of insurance as evidence of the insurance set forth above.
14.3 Publicity. In no event may either party use the name, trademarks and logos of the other party without the prior written consent, in each instance, of such party; provided, that Customer hereby permits MIRADOR to use and publish Customer’s name, trademarks and logos in (i) new customer announcements published on Customer’s website; (ii) compiled customer list published on the Customer’s website and used in marketing presentations; and (iii) quarterly press release announcing new customers.
14.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.5 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of the terms of Section 2.3 or Section 5 may cause MIRADOR irreparable harm for which MIRADOR would be without an adequate remedy at law. Therefore, in the event of a breach or threatened breach of Section 2.3 or Section 5, Customer hereby consents to the entry of an injunction and waives the posting of a bond or showing actual damages as a condition for obtaining injunctive relief. Injunctive relief shall not be deemed the exclusive remedy for a breach of such Sections by Customer but shall be in addition to any other remedies available at law or in equity to MIRADOR.
14.6 Compliance with Laws. Each party agrees to comply with all applicable U.S. laws, ordinances, orders, directions, rules, and regulations applicable to such party in connection with this Agreement.
14.7 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by confirmed facsimile. Notices to each party shall be sent to the addresses set forth in the Order Form and to the attention of the signatories of the Order Form.
14.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.9 Waiver. Any failure of a party to exercise or enforce any of its rights under this Agreement will not act as a waiver of such rights.
14.10 Assignment. Neither party may assign or transfer any of its rights hereunder without the prior written consent of the other party; provided, that either party may assign or transfer its rights under this Agreement in the event of a change of control, merger, sale of all or substantially all such party’s assets, reorganization, or operation of law without the prior written consent of the other party.
14.11 Subcontractors. Customer acknowledges and agrees that MIRADOR may use subcontractors to perform all or portion of the Services in this Agreement; provided, that MIRADOR shall be responsible and liable for the acts and omissions of any subcontractor performing services on behalf of MIRADOR hereunder.
14.12 No Other Warranties. No employee, agent, representative or affiliate of MIRADOR has authority to bind MIRADOR to any oral representations or warranties concerning MIRADOR software. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
14.13 Governing Law. This Agreement shall be governed exclusively by the laws of the State of Illinois, without regard to its conflicts of laws rules.
14.14 Entire Agreement. This Agreement, together with the Order Form, Schedule 1 and any Addenda attached hereto, constitute the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The Order Form and Schedule 1 attached hereto are incorporated by this reference. In the event of any conflict between the provisions of these Terms and Conditions and the Order Form(s) or any other Addenda attached hereto the following sets forth the order of precedence of the documents: (1) these Terms and Conditions; (2) the Order Forms; (3) Schedule 1, and (4) all other Addenda. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.15 Counterparts. This Agreement may be executed in counterparts, each of which is an original but all of which, together, shall constitute but one and the same instrument.
