Version Date: December 3, 2021
These Terms and Conditions (“Agreement”) supplement the Order and set forth the terms and conditions under which Revival Health will provide access to certain proprietary technology to Licensee. The Agreement sets forth the terms and conditions under which Licensee may Use (as defined herein) Revival Health’s software indicated on the Order (“Software”).
1. LICENSE GRANT AND RIGHT OF USE
1.1 License Grant. Subject to all limitations and restrictions contained herein and the Order, Revival Health grants Licensee a subscription, software as a service (SaaS), nonexclusive and nontransferable right to use the Software as hosted by Revival Health as described in the Order (“Use”).
1.2 Use. Licensee shall not allow any website, that is not fully owned by Licensee, to frame, syndicate, distribute, replicate, or copy any portion of Licensee’s web site that provides direct or indirect access to the Software.
1.3 Additional Restrictions. In no event shall Licensee disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement. Licensee may use Revival Health’s Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement.
2.1 Fees. Licensee shall pay Revival Health the fees indicated on the Order. Unless otherwise provided in an Order, all fees shall be paid to Revival Health within fifteen (15) days of the date of invoice. The initial payment for the Software must be made on the Order Effective Date. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
2.2 Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Licensee shall reimburse Revival Health and hold Revival Health harmless for all sales, use, VAT, excise, property or other taxes or levies which Revival Health is required to collect or remit to applicable tax authorities. This provision does not apply to Revival Health’s income or franchise taxes, or any taxes for which Licensee is exempt, provided Licensee has furnished Revival Health with a valid tax exemption certificate.
3. MAINTENANCE AND SUPPORT SERVICES
3.1 Maintenance. Revival Health shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by Revival Health as defects in the Software (“Maintenance and Support Services”). Revival Health shall use commercially reasonable efforts to begin working on a resolution to Licensee’s written notice of reported problems within fourteen (14) days, provided corrections shall be prioritized in Revival Health reasonable discretion. A response is not a guaranty of a solution to the reported problem; however Revival Health will keep Licensee apprised of the resolution closure. Additional features and functions are not included as part of the maintenance and support services.
3.2 Exclusions. Revival Health shall not be obligated to provide Maintenance and Support Services for any software other than the generally available Software delivered to Licensee pursuant to this Agreement (collectively the “Unsupported Code”). Any Revival Health support services related to Unsupported Code shall be subject to execution of a mutually agreed upon assignment order issued under a professional services agreement.
3.3 Third Parties. Revival Health shall have the right to use third parties, including employees of Revival Health’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to Revival Health or its employees shall be deemed to include such Subcontractors.
4. PROFESSIONAL SERVICES
4.1 Statement of Work. Each Statement of Work shall define the Work to be provided to Licensee, the applicable pricing, Deliverables to be created thereunder, Licensee deliverables and obligations, and all other appropriate terms and conditions.
4.2 Rights to Deliverables. Subject to Licensee's full payment for Deliverables, subject to any restrictions contained in the applicable Statement of Work, Revival Health hereby grants to Licensee an internal, worldwide, nonexclusive, nontransferable license to use the Deliverables as described in the Statement of Work.
5.1 Reservation of Rights. By signing the Order, Licensee irrevocably acknowledges that, subject to the licenses granted herein, Licensee has no ownership interest in the Software, Deliverables, or other Revival Health materials provided to Licensee. Revival Health shall own all right, title, and interest in such Software and Revival Health materials, subject to any limitations associated with intellectual property rights of third parties. Revival Health reserves all rights not specifically granted herein.
5.2 Data. Revival Health may aggregate de-identified Customer data with the data of other Revival Health customers and analyze patient-identity-free clinical information and user behavior data for the benefit of a covered entity’s health care operations including use of aggregate data to (i) help develop new features of the Software; (ii) recommend areas for examination or improvement; (iii) train algorithms; and (iv) analyze, compare, and benchmark customer data, provided all PHI used as described in this Section must be de-identified in accordance with the requirements of HIPAA. No Customer data shall be shared or otherwise disclosed by Revival Health unless all patient and Customer-specific identifiers have been removed therefrom. To the extent that use of Customer data gathered by Revival Health would require a license, Customer hereby automatically and forever grants such license to Revival Health.
6.1 Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.
6.2 Confidentiality of Software. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g. orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Revival Health Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by Revival Health; (ii) the oral and visual information relating to the Software; and the terms and conditions of this Agreement.
6.3 Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
6.4 Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other Confidential Information to Licensee or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Revival Health Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
6.5 Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
6.6 Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
6.7 Suggestions/Improvements to Software. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Licensee regarding the Software or other Revival Health materials provided to Licensee shall be owned by Revival Health, and Licensee hereby agrees to assign any such rights to Revival Health. Nothing in this Agreement shall preclude Revival Health from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Revival Health in the performance of services hereunder.
7.1 Authorized Representative. Licensee and Revival Health warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
7.2 Disclaimer of Warranties. Licensee acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder. THE MATERIALS ACCESSIBLE THROUGH THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. REVIVAL HEALTH SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DATA, CONTENT OR MATERIALS ACCESSED THROUGH THE SOFTWARE AND REVIVAL HEALTH MAKES NO REPRESENTATION THAT ANY DATA, CONTENT OR MATERIALS IS ACCURATE OR COMPLETE. REVIVAL HEALTH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
7.3 No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Licensee has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Revival Health.
8. LIMITATION OF LIABILITY
8.1 Liability Cap. IN NO EVENT SHALL REVIVAL HEALTH BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE FOR THE SOFTWARE WHICH GAVE RISE TO SUCH DAMAGES IN THE SIX (6) MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8.2 Disclaimer of Damages. IN NO EVENT SHALL REVIVAL HEALTH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. TERM AND TERMINATION
9.1 Termination by Revival Health. This Agreement and any license created hereunder may be terminated by Revival Health (i) if Licensee fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Licensee if Licensee fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Licensee files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
9.2 Termination by Licensee. This Agreement may be terminated by Licensee on thirty (30) days written notice to Revival Health if Revival Health fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Revival Health’s receipt of Licensee’s notice or a longer period if Revival Health is working diligently towards a cure.
9.3 Termination. Upon termination of this Agreement, Licensee shall no longer access the Software and Licensee shall not circumvent any security mechanisms contained therein.
9.4 Other Remedies. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Licensee’s obligation to pay all fees that have accrued or are otherwise owed by Licensee under this Agreement.
10.1 Compliance With Laws. Licensee agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
10.2 Assignment. Licensee may not assign this Agreement or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Revival Health. Any assignment or transfer in violation of this Section shall be null and void.
10.3 Survival. The provisions set forth in Sections 2, 5, 6.2, 7, 8.4, and 9 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.
10.4 Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Revival Health shall be sent to the attention of the CEO. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
10.5 Force Majeure. Revival Health shall not be liable to Licensee for any delay or failure of Revival Health to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Revival Health. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Licensee in providing required resources or support or performing any other requirements hereunder.
10.6 Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Licensee shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when delivered to the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such delivery.
10.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto.
10.8 Modifications. The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
10.9 Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Licensee agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Revival Health without the prior written consent of Revival Health. Licensee further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Revival Health for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Revival Health. Violation of this provision shall entitle Revival Health to liquidated damages against Licensee equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
10.10 Publicity. Licensee agrees to cooperate with Revival Health (i) in preparation of at least one (1) press release, where the aforementioned materials can be used in/on Revival Health’s Web site, marketing materials, trade shows, public advertisements, and other associated marketing uses (“Revival Health Marketing Materials”); and (ii) in preparation of a Revival Health-sponsored testimonial advertisement to be run in newspapers, magazines, and other publications and for use in Revival Health Marketing Materials. The parties further agree that Revival Health may include Licensee’s logo on publicly displayed customer lists (including Revival Health’s Internet Web site and public advertisements). There shall be a “Powered by Revival Health” logo, to be provided by Revival Health, in the bottom portion of any of Licensee’s Web pages that utilize the Software, which logo shall link directly to the then-current Revival Health Web site home page.
10.11 No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
10.12 Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
10.13 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. ANY ACTION RELATED TO THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS AND LICENSEE HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.