This COANALYZER SERVICE AGREEMENT (this “Agreement”) is made by and between Community Oncology Alliance (“COA”) and you (“you” or “Licensee”) and governs your access to and use of the COAnalyzer software (the “Software”). COAnalyzer is a benchmarking software tool for oncology practices and pharmacies. By accessing, viewing, or using the Software, you indicate that you have read and understood this Agreement and that you agree to be legally bound by the following terms and conditions. YOU MAY NOT CREATE AN ACCOUNT, ACCESS, VIEW, OR USE ANY MATERIAL, INFORMATION, OR SERVICES AVAILABLE ON OR THROUGH THE SOFTWARE, UNLESS YOU FIRST AGREE AND ARE LEGALLY BOUND BY THIS AGREEMENT.
Subject to this Agreement, COA will make the Software available to Licensee solely for use by Licensee and its Users (as defined below) in accordance with this Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and undertakings hereinafter set forth, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:
The Software is a collaborative tool, meaning Licensees must share data in order to receive and access the reports created by the Software. Subject to the provisions of this Agreement and payment of any applicable fees, COA hereby grants you a limited, terminable, revocable, royalty-free, non-exclusive, nontransferable, nonsublicenseable license to access and use the Software solely for internal business purposes and only in the ordinary course of business. You shall be responsible, at your sole expense, for procuring, operating, and maintaining the computer hardware, systems software, telecommunications applications and providers, and other items necessary or appropriate to enable you to exercise your rights and licenses hereunder. Without limiting any other provisions of this Agreement, any software or applications, including the Software, made available to you is the copyrighted work of COA and/or third parties. Licensee will not permit the Software to be used by or for the benefit of anyone other than Licensee and its Users. See Section 5 for additional prohibitions regarding use of the Software. Each User must register separately, and any transferring, sharing, or assigning of a registration by Licensee or a User to any person or entity is strictly prohibited.
Licensee hereby grants COA a perpetual, irrevocable, worldwide license to access and use the User Content submitted by Licensee in connection with the Software. COA shall not sell or monetize either individually or in the aggregate any of the User's Content submitted by any Licensee in connection with the Software. COA will be relying on the accuracy and completeness of the materials and information COA receives from you and third parties. You must review and verify the accuracy of any and all materials and information provided to COA, either by you, other providers, or third parties. COA shall take reasonable precautions not to disclose the User Content to third parties other than in a form that does not identify the Licensee (except where required by law).
You understand that COA is not a health care provider. The Software is not intended to be a substitute for professional advice, and COA in no way represents or warrants that the Software provides any such advice. You agree that COA is not acting as a fiduciary or agent for you.
As a Licensee of COA, COA will provide you with access to the Software via a website link. The link will take you to a sign-in page, where you will enter the unique user ID provided to you by COA and then create your own password. You are responsible for the security of the access codes and passwords provided to you by COA. COA may, at any time and without notice to you, change, suspend or discontinue your access to the Software. You are responsible for notifying COA of any malfunctioning or other problems with your use of the Software, or the use of the Software by any User.
The following users are authorized to view, access, and use the Software (each, a “User”): (1) COA members; (2) their employees; and (3) their consultants who are specifically hired as independent contractors, are paid by the practice, and whose responsibilities enable them to access and review data solely for the practice’s benefit. Each User will be required to accept and agree to the terms and conditions set out in the Agreement. Any act or omission by any User or other person that obtains access to the Software through Licensee would be a breach of this Agreement. If committed by Licensee, would be deemed a breach of this Agreement by Licensee for which Licensee is responsible. Pharmaceutical distributors and manufacturers are not permitted to view, access, or use the Software.
It is solely the responsibility of Licensee to secure against unauthorized dissemination of any and all passwords, identifying codes and similar information provided by COA or used by Licensee or its Users in accessing the Software. Licensee shall be responsible, and COA shall have no liability to Licensee, any User, or any third party, for any unauthorized access to the Software as a result of Licensee’s failure to comply with this section.
As part of your use, and use by the Users, of the Software, you and the Users may submit or provide data, content or information (collectively, “User Content”). You are prohibited from submitting data outside of your practice. User Content shall only be accessed and used by COA’s employees and subcontracted consultant for the Software in accordance with the terms of this Agreement. Licensees will not be identified or associated with any of the raw data published through the Software. The Software will anonymously aggregate the User Content and produce benchmark reports for each Licensee. COA reserves the right to use and publish the aggregated data in the media and through any other source that COA deems necessary to carry out its mission.
To the extent the User Content includes “Confidential Information,” COA makes these further assurances. Confidential Information includes all propriety and confidential information disclosed by Licensee to COA, including without limitation, information related to Licensee’s business, clients, programs, intellectual property, and trade secrets, disclosed by Licensee through the Software. All Confidential Information disclosed by Licensee through the Software shall be kept confidential and shall be used by COA solely for the purposes of the Software and in accordance with this Agreement. COA shall take all reasonable actions to protect such Confidential Information as if it was its own confidential information, but no less than a reasonable degree of care under the circumstances.
You retain all right, title and interest in and to the User Content that is submitted by you and/or the Users and all intellectual property rights embodied therein. The Software may provide an SSL certificate or other equivalent security certificate to enable secure and encrypted communications between you and the Software. You hereby acknowledge that all such security certificates are provided by third party certificate authorities. You are responsible for taking any action, providing information, maintaining, updating, implementing and executing any agreements and documentation required by such third parties, including all fees, costs and expenses in connection therewith. COA shall not be responsible for any errors or omissions of third parties or defects in connection with security certificates. You hereby represent that you have the full legal right to provide the User Content and that use of the User Content will not: (a) infringe any intellectual property rights of any person or entity or any rights of publicity, personality, or privacy of any person or entity, including the posting of personally identifying or otherwise private information about a person; (b) violate any law, statute, ordinance, or regulation; (c) be defamatory, libelous or trade libelous, unlawfully threatening, or unlawfully harassing; (d) contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information, or that facilitate or enable such or that are intended to do any of the foregoing; (e) constitute misappropriation of any trade secret or know-how; or (f) constitute disclosure of any confidential information owned by any third party.
COA shall own all right, title, and interest in and to the Software, algorithms, tools, data, software, specifications, documentation, reports and other work product developed or used by COA in connection with the Software, including all intellectual property rights therein and modifications, improvements and derivatives thereof (collectively, “COA Materials”). Except as specifically provided in this Agreement, neither party shall have any right or license by virtue of this Agreement to use or exploit any intellectual property rights of the other party. The COA Materials, including the Software, are protected pursuant to United States copyright, trademark, patent and other applicable laws. As between any user and COA, all names, trademarks, service marks, symbols, slogans or logos appearing on the COA Materials are proprietary to COA or its affiliates, or their licensors. Under no circumstances will you have any rights of any kind to the COA Materials, other than the right to use the COA Materials in accordance with this Agreement.
COA uses reasonable efforts to ensure that the Software is generally available 95% of the time, excluding scheduled maintenance time. COA will provide notice of scheduled maintenance. However, there may be occasions when access to the Software will be interrupted or unavailable. COA will use reasonable commercial efforts to minimize such disruption where it is within our reasonable control. You agree that COA shall not be liable to you for any modification, suspension or discontinuance of the Software. During the term of this Agreement, COA will provide to Licensee, at no additional charge, support services for the Software as set forth in this Section 5. COA shall provide to Licensee, from 8:30 a.m. to 5:00 p.m. EST, Monday through Friday, excluding holidays, telephone or email assistance regarding Licensee’s proper and authorized use of the Software.
Licensee’s use of the Software shall be without charge on an “as-is” basis to Community Oncology Alliance members. COA reserves the right at any time to charge a fee for use of its Software. We will provide at least thirty (30) days’ advance written notice by email. If you do not want to accept the fee, your only recourse is to terminate use of the Software.
This Agreement shall become effective as of the day you click “agree” to these Terms and will continue in effect until terminated as set forth below (the “Term”). Either party will have the right to terminate this Agreement at any time if the other party fails to perform any material obligation under this Agreement and fails to cure such nonperformance within thirty (30) days of written notice of such failure. COA may terminate this Agreement immediately upon Licensee’s liquidation, commencement of dissolution proceedings, disposal of Licensee’s assets, failure to continue Licensee’s business, assignment for the benefit of creditors, or if Licensee becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding. COA may suspend or terminate Licensee’s right to access and use the Software immediately upon COA’s notice to Licensee, if Licensee: (i) seeks to hack or break any security mechanism on any of the Software or COA otherwise determines that Licensee’s use of the Software poses a security or service risk to COA, or to any other user of COA’s Software, or may subject COA or any third party to liability, damages or danger; (ii) Licensee’s use of the Software in a way that disrupts or threatens the Software; (iii) COA receives notice or otherwise determines, in its sole discretion, that Licensee may be using the Software for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; or (iv) COA determines, in its sole discretion, that its provision of any of the Software to Licensee is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason. COA may terminate this Agreement immediately upon suspicion that a User has shared User Content or COA Materials to unauthorized individuals or entities. Additionally, COA may terminate this Agreement for any reason, or no reason, at any time with thirty (30) days’ advance written notice to the other party.
Upon termination of this Agreement, all rights granted herein will revert to COA and the license granted to Licensee will terminate, and Licensee will make no further use of the Software. Sections 4, 7, 10, 11, 12, 15, 16, 17, and 19 will survive expiration or termination of this Agreement.
You shall not (a) sell, rent, display, sublicense, summarize, or otherwise provide any COA Materials to any other person or entity; (b) refer to, reproduce, distribute, make available, or use any item of the COA Materials as part of any effort to develop any service or product having any characteristics, attributes, expressions, or quality similar to the services or products provided by COA herein or to compete with COA; (c) reverse engineer, copy, modify, create derivative works, alter, maintain, enhance, remove, or replace data or otherwise modify the Software or other COA Materials; or (d) make any unauthorized use or disclosure of any COA Materials. You acknowledge and agree that the unauthorized use of the COA Materials could cause irreparable harm to COA and that in the event of such unauthorized use, COA shall be entitled to an injunction in addition to any other remedies available at law or in equity. COA reserves the right to audit and electronically monitor your use of the Software, and to deploy various methods to prevent abuse of the Software, including any of the unauthorized activities discussed above.
Parties other than COA may provide products, services, data or content in connection with the Software. Additionally, the Software may contain links to other Internet Web sites for the convenience of users in locating information, products, or services that may be of interest. Use of the Software, and any other material or content on and made available through the Software is entirely at your own risk. COA does not recommend and expressly disclaims any responsibility for the content, the privacy practices and policies, the accuracy of the information, or quality of products or services provided by or advertised on third party sites or the transactions you conduct or enter into with third parties. Your use of any third party’s website is at your own risk, and subject to the terms and conditions of such other websites. COA does not endorse any product, service, or treatment provided on a third party website or advertised or provided on the Software.
The COA Materials, including the Software and the information and data provided in connection with the Software, are for informational purposes only. COA, its subsidiaries, and affiliates are not responsible for and do not guarantee the accuracy or completeness of any data, information, services, products or other items contained within or provided by the Software, which relies in part on the accuracy and completeness of the materials and information COA receives from you and third parties. You must review and verify the accuracy of any and all materials and information provided to COA, either by you or a third party, in connection with the Software. COA shall not be responsible for any inaccuracies or errors in the Software or other COA Materials, including any technical problems, human error or typographical errors. The Software is not intended to be a substitute for professional advice, and COA in no way represents or warrants that the Software provides any such advice or assurances.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COA DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND DUTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND DUTIES OF REASONABLE CARE OR WORKMANLIKE EFFORT, WITH RESPECT TO THE SOFTWARE AND THE COA MATERIALS AND ALL RELATED MATERIALS PROVIDED UNDER OR IN RELATION TO THIS AGREEMENT BY ANY PARTY. COA DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
COA AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, EXTRA-CONTRACTUAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING LOST REVENUES OR LOST PROFITS, WHICH MAY OR DOES RESULT FROM THE USE OF, ACCESS TO, OR INABILITY TO USE THE SOFTWARE, USER CONTENT, SERVICES, PRODUCTS, DATA AND OTHER MATERIALS ON, IN AND MADE AVAILABLE THROUGH THE SOFTWARE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR COA HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF COA AND ITS LICENSORS TO YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH OR ARISING FROM THE SOFTWARE, USER CONTENT, SERVICES, PRODUCTS, DATA OR OTHER MATERIALS OFFERED IN CONNECTION THEREWITH EXCEED THE PRICE PAID BY YOU DURING THE PRECEDING YEAR FOR USE OF THE SOFTWARE. COA shall not be liable for or in breach of any provision of this Agreement directly or indirectly resulting from any inaccuracies contained in any of the data or information provided to COA by you and/or by third parties.
You shall indemnify COA and its directors, officers, employees, agents, contractors, and licensors (“COA Indemnities”) against all claims, actions, suits, and other proceedings ("Claims") arising out of or incurred in connection with the Software or the COA Materials and your use of the COA Materials, or any services, products or data obtained through the Software, use of the Software by unauthorized users, your fraud, violation of law, negligence, willful misconduct, or any other use of the COA Materials, the User Content, the services, products, information and other materials on, in and made available through the Software, or any breach by you of this Agreement and shall indemnify and hold COA Indemnities harmless from and against all judgments, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and attorneys’ disbursements) arising out of or incurred in connection with such Claims. COA or its licensors may assume the defense of any Claim, at your sole cost and expense, and you shall cooperate in all reasonable respects in such defense. You shall have the right to employ separate counsel in any Claim at your sole costs and expense to participate in the defense thereof. If COA or its licensors do not notify you that it elects to undertake the defense thereof, you shall have the right to defend the Claim with counsel reasonably acceptable to COA, subject to the right of COA to assume, at their sole cost and expense, the defense of any Claim at any time prior to the settlement or final determination thereof. You may not settle any Claim without the prior written consent of COA.
COA reserves the right at any time to modify, alter or update the COA Materials and/or this Agreement. We will notify you by e-mail of any changes to the Agreement.
You may not transfer or assign any of your rights or obligations hereunder to any other party in any manner (by assignment, operation of law or otherwise) unless you have obtained written consent from COA. If you attempt to transfer or assign any of your rights or obligations hereunder without COA’s consent, the transfer or assignment will be ineffective, null, and void (and you will be in material breach of this Agreement).
These Terms will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without reference to its conflict of law rules; PROVIDED, HOWEVER, THAT THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON, DERIVED FROM, SIMILAR TO, OR CONNECTED WITH THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY EXCEPT TO THE EXTENT THAT THE LAW EXPRESSLY PROHIBITS ALTERATION BY THIS AGREEMENT OF THE APPLICABILITY OF ONE OR MORE SECTIONS OF THE LAW. By executing this Agreement, you consent and agree to (a) the exclusive jurisdiction of the federal and state courts located in the Commonwealth of Virginia, United States; (b) accept service of process by personal delivery, mail, or email to the any of the addresses listed in your online account; and (c) irrevocably waive the right to trial by jury and any jurisdictional and venue defenses otherwise available.
Notwithstanding anything to the contrary in this Agreement, except for your obligation to pay amounts due hereunder, neither party will be deemed to be in default of any provision of this Agreement for any delay, error, failure, or interruption of performance due to any act of God, terrorism, war, insurrection, riot, boycott, strike, or other labor or civil disturbance, interruption of power service, interruption of communications services, problems with the Internet, epidemic, act of any other person not under the control or direction of such party, or other similar cause. The party subject to any of the foregoing events shall give the other party reasonable written notification of any resulting material or indefinite delay.
These Terms are for the exclusive benefit of COA and Licensee. No third party will be entitled to assert third party beneficiary status or otherwise make a claim under this Agreement.
COA has implemented commercially reasonable measures designed to prevent the loss, misuse, alteration, or unauthorized release of or access to Confidential Information provided to us. However, the confidentiality of any communication or material transmitted to or from COA via the Software cannot be, and is not, guaranteed.
The Software is owned, managed and controlled from within the United States. Use of the Software outside of the United States is prohibited. The waiver or failure of COA to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under this Agreement. In the event one or more of the provisions of this Agreement or the application thereof to any circumstance are found to be invalid or unenforceable to any extent, the remaining provisions shall continue in full force and effect. Headings used in this Agreement are for reference only and shall not affect the interpretation of this Agreement. There shall be no third party beneficiary of this Agreement or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.” This Agreement, together with its Exhibits, constitutes and contains the entire understanding and agreement of the parties respecting the subject matter hereof and cancels and supersedes any and all prior and contemporaneous negotiations, correspondence, understandings, and agreements between the parties, whether oral or written, regarding such subject matter.