THIS USER LICENSE AGREEMENT (the "Agreement") is made and entered into the day signed by Licensee (the Effective Date”), by and between BLRB, LLC d/b/a Ocoord ("Licensor"), and the user executing this Agreement seeking to use Licensor’s applications and materials ("Licensee"). Licensee and Licensor may be referred to in this Agreement collectively as "Parties" or individually as a "Party".
BACKGROUND
-Licensor licenses certain proprietary applications and materials to assist medical and dental providers with regulatory compliance under OSHA.
-Licensee wishes to obtain the rights to use the Licensed Product (as hereinafter defined), and Licensor wishes to grant Licensee a license for such use under the terms and conditions set forth in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in further consideration of the mutual promises set forth herein, Licensor and Licensee agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement, the capitalized terms quoted below will have the meaning ascribed to them in this Section.
1.1 "Confidential Information" has the meaning set forth in Section 12 of this Agreement.
1.2 "Effective Date" means the date of this Agreement.
1.3 "Enhancement" means a modification of the Licensed Product by Licensor.
1.4 "Intellectual Property Rights" means all proprietary information, source code, user interface, copyrights, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the Licensed Product.
1.5 "License Fees" means those amounts specified and set forth in Section 4.1 of this Agreement and Schedule A attached hereto and made a part of this Agreement.
1.6 "Licensed Product" means the Ocoord online application, and all modifications, enhancements, repairs, updates, or other changes made thereto.
2. GRANT OF LICENSE.
2.1 Grant. Licensor grants to Licensee and Licensee accepts a limited, revocable, nonexclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license to access and use the Licensed Product in the manner described in this Agreement. Licensor reserves all rights in the Licensed Product. Licensee must use the Licensed Product (a) only in a manner and for the purposes for which the Licensed Product was designed and (b) only for Licensee’s sole and exclusive benefit without any portion thereof being transferred to or accessed by any third-party. Licensee shall not copy any part of the Licensed Product. All uses not permitted under this Section 2.1 are prohibited
2.2 Ownership. Licensor retains all title to the Licensed Product (which shall include all source code, methods, processes, user interface items and code) and all data related thereto. This Agreement is a license to use, and not a contract of sale for, the Licensed Product. All Intellectual Property Rights in and to the Licensed Product are retained by Licensor. Licensee agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Licensed Product.
3. ACCESS.
Upon execution of this Agreement, Licensor will create a profile for Licensee to use to access the Licensed Product, and Licensee may use the Licensed Product under the terms of this Agreement.
4. PAYMENT TERMS.
4.1 License Fees. As compensation for the license provided in this Agreement for the Licensed Product, Licensee shall pay Licensor the Fees in the amounts and at such times as offered by Licensor and accepted by Licensee when signing up for or renewing access to the website. Licensor shall have the right to increase the License Fees upon thirty days notice to Licensee.
4.2 Payment. All fees or amounts due Licensor under this Agreement shall be due and payable as selected by Licensee when signing up for or renewing access to the website.
4.3 If Licensee terminates this Agreement, Licensee understands that there will be no refunds provided for periods paid for in advance but unused following the termination of this Agreement.
5. EFFECTIVENESS OF TERMS.
By Accessing the Licensed Product, You Signify Your Acceptance of Each and Every Term and Condition Set Forth in This Agreement. The License Granted Under This Agreement Is Expressly Conditioned Upon Your Acceptance of and Compliance With All Terms and Conditions Set Forth in This Agreement. If You Do Not Accept the Terms of This Agreement or Do Not Wish to Comply With Any Term or Condition Set Forth Herein, Do Not Access the Licensed Product. Once the Licensed Product Is Provided, the Terms Hereof Will Be Deemed to Have Been Accepted by You and You Will Be Bound by All of the Terms, Conditions, and Restrictions Contained Herein.
6. MAINTENANCE.
Licensor may, at its discretion and from time to time, temporarily suspend access to the Licensed Product for purposes of implementing maintenance procedures or updates. Licensor will use its best efforts to try to limit the time periods during which access is suspended.
7. LICENSEE'S REPRESENTATIONS AND WARRANTIES.
7.1 Compliance with Terms. Licensee shall monitor the Licensed Product and ensure that it is used only in compliance with the terms of this Agreement. Licensee shall be responsible and liable for any and all non-compliance with this Agreement by Licensee or by any person or entity who obtains access to the Licensed Product through Licensee.
7.2 Notification of Defects. Licensee shall notify Licensor of any material defect Licensee believes exists in the Licensed Product, and Licensee shall provide to Licensor all information known or reasonably available to Licensee regarding the alleged defect.
7.3 Licensee's Responsibility: Licensee shall be exclusively responsible for the supervision, management, and control of its use of the Licensed Product, including, but not limited to (a) updating information as Licensee deems necessary; (b) maintaining back-up records and copies of important documents; and (c) not providing any third party access to Licensee’s account if Licensee wishes to keep information private.
7.4 Medical Information: Licensee understands and acknowledges that Licensor is not requesting or seeking any information from Licensee that might constitute personal health information, that Licensor is not a covered entity, and will not be taking all actions required by the privacy rule and security rule promulgated under the Health Insurance Portability and Accountability Act of 1996.
7.5 OSHA Compliance: Licensee acknowledges, represents and warrants to Licensor that (i) Licensee is solely and exclusively responsible for Licensee’s own OSHA compliance with its governing jurisdiction, (ii) the Licensed Product is a tool that Licensee may use to assist in its OSHA compliance program but is not necessarily an all-encompassing complete solution for the same, and (iii) Licensee will exercise all commercially reasonable efforts to ensure its OSHA compliance program is complete and satisfactory.
8. REPRODUCTION.
Licensee shall have no right to copy, reproduce, or otherwise copy any of Licensor’s Intellectual Property Rights, including the Licensed Product, without Licensor’s prior written consent.
9. LIMITATION OF LIABILITY / NO WARRANTY.
Licensor Shall Not Be Liable for Any Consequential, Special, Incidental, Indirect, Statutory, Punitive, or Exemplary Damages of Any Sort, Including, Without Limitation, (a) Any Damages for Lost Profits, or (b) Any Damages Resulting From Loss of Use or Loss of Data, Interruption in Use, or Availability of Data. Under No Circumstance Shall Licensor Be Liable for Any Amount in Excess of the License Fees Paid by Licensee for the Licensed Product. Licensee Understands, Recognizes, and Acknowledges That Licensor Is Not Making Any Warranty as to the Completeness of Licensee’s OSHA Compliance Program, Including, Without Limitation, Any and All Warranties for Merchantability and Fitness for a Particular Purpose.
10. INDEMNITY.
Licensee shall be solely responsible for, and shall indemnify, defend, and hold Licensor free and harmless from all damages, liabilities, charges, and expenses (including reasonable attorneys' fees) from all claims, lawsuits, or other proceedings arising out of or relating to Licensee’s breach of the terms of this Agreement (including any reproduction, copying, improper use, or other infringement of Licensor’s rights in the Licensed Product), or any claim or action relating to Licensee’s improper use of the Licensed Product.
11. TERMINATION AND DEFAULT.
11.1 Termination by Licensor. Licensor may terminate this Agreement and the license granted to Licensee upon the occurrence of any of the following events:(a) Licensee fails to pay Licensor any fee, charge, tax, or other reimbursement when due and the failure to pay is not cured within ten (10) days of Licensee's receipt of Licensor's notice thereof;(b) Licensee transfers or otherwise makes available access and use to the Licensed Product to any person other than Licensee;
11.2 Right to Terminate. Either Party may terminate this Agreement upon thirty (30) days written notice to the other Party, provided, however, that in the event Licensor terminates Licensee’s access to the Licensed Product without a commercially reasonable reason then Licensor will pro-rate and refund any Fees paid by Licensee in advance for the period of time which Licensee paid Fees and does not receive access to the Licensed Product.
11.3 Licensor Remedies Upon Termination. In the event of any termination of this Agreement:(a) Licensor shall have the right to determine when and if to purge or otherwise delete any data or information originally put in from Licensee’s account. Even if Licensor does not purge such data, Licensor shall maintain ownership of any copies of such data it maintains on its system; and(b) Licensee shall pay all outstanding fees and amounts owed to licensor as of the date of termination;
12. CONFIDENTIALITY.
12.1 As used in this Agreement, Licensor’s “Confidential Information” means: all information, including, but not limited to, the copyrights, trade secrets, and know-how of Licensor, any information marked "Confidential" or "Proprietary" and, the Licensed Product; provided, however, Confidential Information shall not mean any information that: (a) is known to Licensee at the time of disclosure; (b) is developed independently by Licensee without use of the Confidential Information; (c) is within, or later falls within, the public domain without breach of this Agreement by Licensee; or (d) becomes lawfully known or available to Licensee without restriction from a source having the lawful right to disclose the information without breach of this Agreement. The receiving Party shall have the burden of proof as to establishing by competent evidence any of the exceptions set forth in Section 12.1(a) to (e) above.
12.2 Each Party acknowledges that in the performance of this Agreement a Party may receive confidential information from a disclosing Party and that such confidential information is the exclusive property of the disclosing Party, except as set forth in Section 11.
13. PRIVACY POLICY.
13.1 Privacy Policy.
(a) Licensor will implement and maintain reasonable and appropriate administrative, organizational, technical and physical measures to protect Licensee information from loss, misuse, unauthorized access, disclosure, alteration and destruction. Licensee acknowledges and agrees that Licensee has the sole responsibility to specify and manage all data and information provided to Licensor. Licensee shall indemnify Licensor against any and all claims arising from the content of Licensee data and information which has been provided by Licensee.
(b) Licensor shall use credit card information solely for payment processing and fraud prevention efforts. Credit card information, and other sensitive information required to process a credit decision, is not used for any other purposes by Licensor, its financial service providers or its affiliates, and will not be retained any longer than necessary.
(c) Licensor shall gather Licensee information and that information may be aggregated with other licensees’ information on a purely non-identifiable basis for knowledge sharing purposes and to understand how Licensor Licensed Products are used for research and design purposes, in order to improve subsequent generations of the Licensed Product.
(d) In the event Licensor becomes aware of any possible or actual loss of, unauthorized or unlawful access to, acquisition of, use of, disclosure of, or any other compromise of Licensee’s confidential or proprietary information within the possession or control of Licensor, Licensor shall promptly notify Licensee of such security breach. In the event of such security breach, Licensor shall cooperate in good faith with Licensee to investigate and resolve the security breach and mitigate any harmful effects of such breach.
14. GENERAL.
14.1 Waiver. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving Party, nor shall any such waiver, if made, constitute a waiver of any subsequent breach of the same or of any other provision of this Agreement.
14.2 Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder (except obligations to pay) if such failure arises out of causes beyond such Party's reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible under the circumstances.
14.3 Fees and Expenses. If either Party institutes an action to enforce this Agreement or any of its terms, the prevailing Party shall also be entitled to recover all of its costs, expenses and reasonable attorneys' fees.
14.4 Jurisdiction and Venue. Should any claim or controversy arise between the Parties under the terms of this Agreement or in furtherance of this Agreement, such claim or controversy shall be resolved only in the state or federal courts of Mecklenburg County, North Carolina, and said state and federal courts for the State of North Carolina shall be the only appropriate jurisdiction and venue therefore. Licensee hereby submits to said jurisdiction and venue.
14.5 Governing Law. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of North Carolina.
14.6 Severability. If any provision of this Agreement is held invalid or unenforceable under any applicable law, such invalidity or unenforceability will not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, and this Agreement shall be construed as if said invalid or unenforceable provision had not been contained herein.
14.7 Negotiation. This Agreement is the result of negotiation between the Parties and, accordingly, shall not be construed more strongly for or against either Party regardless of which Party was more responsible for the preparation of this Agreement or any portion thereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in duplicate by their duly authorized corporate officers as of the day and year first above written.
