Software Licensing Standard Terms and Conditions
By accepting any Quote for the purchase of any Software License or associated services from KeyCentrix, LLC, a Kansas limited liability company (“KeyCentrix”), including any subsequent order for additional Software Licenses or services, you, the licensee (“Licensee”) accepting the Quote, expressly agrees to be bound by these Software Licensing Standard Terms and Conditions (“Standard Terms”). Each Quote is subject to KeyCentrix’s acceptance and may be accepted or rejected by KeyCentrix in its sole discretion. Further, these Standard Terms and any Quote that subsequently refers to these Standard Terms are intended to collectively constitute one agreement (“Agreement”). It is understood that each Quote will specify the current charges and costs for the Software License or services to be provided by KeyCentrix under this Agreement.
1.1 Confidential Information. “Confidential Information”, shall mean the Software, Documentation, the terms and conditions of this Agreement, and also all information, knowledge or material concerning the business, products, proposed new products, services, customers, business relationships, finances or other proprietary information regarding KeyCentrix, which is not known to the general public or which may otherwise constitute proprietary information or a trade secret of KeyCentrix.
1.2 Documentation. “Documentation” means the user, system and operational documentation for the Software. Unless specifically indicated or the context requires otherwise, the term Documentation shall include all upgrades provided to Licensee by KeyCentrix.
1.3 License. “License” means the rights granted by KeyCentrix to Licensee to use the Software and Documentation in accordance with, and subject to, the terms, conditions, and limitations of this Agreement.
1.4 Program Specifications. “Program Specifications” means the operating instructions, technical standards, specifications, the identity of program languages or software tools, hardware requirements, connectivity requirements, capacities, tolerances, file formats, and other technical operational and functional information set forth in any Documentation (whether in tangible and electronic formats) delivered or made available to Licensee regarding the Software, including available enhancements, updates, and modifications.
1.5 Software. “Software” means all computer programs (either owned by KeyCentrix or licensed from third parties) for which a license is granted to Licensee pursuant to the applicable Quote. It is further understood that the term refers to the applicable Software as it currently exists and as the Software may be modified or supplemented in the future by any update, upgrade, or at KeyCentrix’s discretion, by the addition or discontinuance of various product or service offerings. For purposes of the rights granted to Licensee under this Agreement, the Software consists of its object code only (i.e., compiled source code).
2. License Grant
Subject to the terms, conditions, and limitations contained herein, during the term of this Agreement, KeyCentrix grants to Licensee a limited, personal, non-exclusive, non-transferable, non-refundable, and internal License to install and use the Software (in object code form only) and Documentation solely for its own business and operations. The Software shall be used solely at the location(s) described in the Quote. All right, title and ownership of the Software, Specifications, Documentation and all copies thereof, shall remain at all times the exclusive property of KeyCentrix.
Except as explicitly provided otherwise in this Agreement, Licensee shall not itself or allow any other person to: (a) sell, resell, make available, distribute, or use for the benefit of any third party all or part of the Software or Documentation, whether by assignment, sublicense, or by any other means; (b) copy, adapt, reverse engineer, decompile, disassemble, prepare derivative works, or modify, in whole or in part, any of the Software or Documentation; (c) modify, alter, or circumvent the Software’s configuration, data files or libraries, or functionality; or (d) use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow third party access to the Software. KeyCentrix may, in its sole and absolute discretion, require Licensee to accept and implement certain upgrades; provided that, such mandatory upgrades shall be provided at no additional cost to Licensee, although Licensee may incur costs related to third party software and hardware provided by third parties and other non-Software related costs. The License granted hereunder does not include any other rights except as expressly specified herein, including rights in third party software. Delivery and implementation of an upgrade (whether mandatory or under the services provided herein) terminates Licensee’s rights in prior versions of the Software and/or Documentation, as applicable.
3. Contract Documents
This “Agreement” consists of these posted Standard Terms, as well as any Quote accepted or executed by Licensee and expressly accepted by KeyCentrix that specifically reference these posted Standard Terms, and the Program Specifications accompanying the applicable Licensed Software, which are provided in conjunction with this Agreement. The Program Specifications are subject to modification at the discretion of KeyCentrix. It is understood that each Quote will specify the current charges and costs for specific Licenses, services and goods to be provided by KeyCentrix under this Agreement.
4. Fees and Payment
4.1 License and Service Fees. Licensee shall pay to KeyCentrix the License and service fees set forth in the Quote, and such fees shall be remitted to KeyCentrix in accordance with the payment terms set forth in the applicable Quote. In addition to the fees set forth in the Quote, KeyCentrix shall invoice any additional costs and expenses reasonably incurred by KeyCentrix in the delivery of the Software, as incurred. Licensee shall be responsible for and shall promptly pay for all additional goods or services provided, and costs incurred, by KeyCentrix which are not included on the Quote on a time-and-expenses basis in accordance with KeyCentrix’s then-standard rates. Provided, all fees shall be subject to adjustment by KeyCentrix in its sole discretion effective upon the first day of each renewal term. All amounts paid to KeyCentrix are non-refundable.
4.2. Tax. Licensee shall be responsible for any applicable sales, use, value added, or other taxes payable with respect to the Licenses and services provided pursuant to this Agreement, or arising out of or in connection with this Agreement.
4.3 Payment and Remedies. In the event Licensee fails to pay when due any amounts which are owed pursuant to the Quote or otherwise, Licensee shall be liable to pay KeyCentrix interest on the past due equal to the lesser of one and a half percent (1.5%) per month or the highest amount permitted by applicable law until paid in full. Without limiting any other remedy available to KeyCentrix, in the event any amount owed by Licensee is more than sixty (60) days past due, KeyCentrix may suspend the License granted hereunder and any services at its sole discretion. Further, in the event any past due amount is placed by KeyCentrix with a third party for collection and/or litigation, Licensee shall be responsible for all collection costs, legal fees and court costs incurred by KeyCentrix. Licensee agrees to a charge of not less than $40.00 or the highest rate allowed by law for any returned check.
4.4 Additional Transaction Fees for Certain Software. In addition to the fees set forth above, there may be other transactional fees services associated with the License as set forth as set forth on the Quote dependent upon the Software being licensed to Licensee, including without limitation, the following:
(a) Electronic Claims Processing and Adjudication Services: If electronic claims processing and adjudication services are purchased pursuant to the Quote, KeyCentrix will provide Licensee electronic claims payment and adjudication services for payments related to medication and/or dispensing from third-party payors, including without limitation, insurance companies and/or private or governmental health plans or programs, that are included within the network of third-party payors offered by KeyCentrix and its third party vendors. Electronic claims processing services will only be provided for claims submitted through the Software and will be charged at the price set forth on the Quote for each Internet-submitted claim and dial-up modem claim for adjudication through the third party switch. Provided, Licensee acknowledges that KeyCentrix is charged by a third party for these services, and Licensee will be responsible for paying KeyCentrix for these services based upon the amount charged to KeyCentrix by such thirty party plus KeyCentrix’s upcharge on such services which is dependent upon the nature of the claim being processed or adjudicated.
(b) Electronic Prescription Processing: If electronic prescription process services are purchased pursuant to the Quote, Licensee shall have the ability to receive and transmit electronic prescriptions, refill requests, and other electronic messages to and from prescribers under the NCPDP SCRIPT messaging standards. Each month, Licensee will be charged a fee for the use of this solution in the amount set forth on the Quote for each message received or transmitted to or from prescriber, with a minimum per location monthly fee equal to the minimum per location monthly standard fee then being charged by KeyCentrix.
(c) EligibilityCheck. EligibilityCheck is an optional service that provides a commercial E1 eligibility check for the majority of commercially available insurance. If EligibilityCheck services are purchased pursuant to the Quote, KeyCentrix will provide to Licensee the commercial E1 functionality in return for payments of the fees set forth on the Quote for every eligibility check claim submitted.
5.1 Site Preparation and Restrictions. Licensee may not install or use the Software on any computer system not configured to KeyCentrix’s Program Specifications without express approval in writing by KeyCentrix. Licensee agrees, at its sole expense, to prepare the installation site before delivery and installation of the Software by providing all necessary cabling, electrical outlets, air conditioning, and other utilities. If KeyCentrix is to perform the installation services pursuant to the Quote, Licensee agrees to provide KeyCentrix at no charge with all necessary and convenient access to Licensee’s premises and hardware where the Software will be installed and implemented. Prior to or in conjunction with the installation of the Software, Licensee agrees to install and maintain all networks and communication systems which are required by KeyCentrix to perform its obligations under this Agreement. Further, Licensee agrees to provide sufficient manpower during any installation or conversion process to enable KeyCentrix to timely and efficiently perform its obligations.
5.2 Delivery, Installation, and Use. KeyCentrix shall deliver the Software to Licensee, and, if the Quote reflects fees for installation services, KeyCentrix will install the Software in accordance with the implementation schedule as mutually determined by KeyCentrix and Licensee. Licensee shall be solely responsible for testing the Software. The Software and the installation will be deemed accepted by Licensee upon the earlier of (a) thirty (30) days after delivery of the Software, (b) ten (10) days after installation of the Software, or (c) actual use of the Software for business purposes.
5.3 Go-Live Date; Rescheduling Fee. As part of the implementation schedule, the parties will agree on certain milestones with respect to the implementation of the Software, including the scheduled “go-live” date (“Go-Live Date”). For purposes of this Agreement, the “Go-Live Date” shall mean the date that KeyCentrix completes implementation of the Software and such Software is available to Licensee for use in its day-to-day operations. Licensee understands and acknowledges that the Go-Live Date shall be deemed to have occurred when its available for use in its day-to-day operations, regardless of whether Licensee is open for business or otherwise using the Software in its day-to-day operations. In the event Licensee fails to meet any of the implementation milestones for any reason and the “Go-live” date is rescheduled to a later date (the “Rescheduled Go-Live Date”), then Licensee will pay KeyCentrix, as liquidated damages, a one-time rescheduling fee of $20,000.00 (“Rescheduling Fee”). The Rescheduling Fee represents a reasonable estimate of the damages that will be incurred by KeyCentrix as a result of the Rescheduled Go-Live Date, and Licensee acknowledges that such damages are difficult, impracticable or otherwise incapable of precise measurement, and the Rescheduling Fee is not intended nor shall it be construed as a penalty of any kind. The Rescheduling Fee will be due and payable to KeyCentrix immediately upon its demand. Further, License understands and acknowledges that the Rescheduled Go-Live Date will be determined in KeyCentrix’s sole discretion, and will be subject to KeyCentrix’s availability.
5.4 Training. KeyCentrix will provide certain training services to Licensee with respect to use of the Software if purchased pursuant to the Quote, and such training will be provided in accordance with the terms of the Quote. Travel and other associated expenses are not included as part of the training to be provided by KeyCentrix, and such costs and expenses are the sole responsibility of the Licensee.
6. Maintenance and Support
6.1 Maintenance Upgrades. During the term of this Agreement, KeyCentrix shall provide to Licensee upgrades that it generally provides to its customers under similar maintenance agreements from time to time. KeyCentrix does not guarantee that upgrades will be created or provided during the maintenance and support term, and the timing or content of any supplied upgrades will be in the sole and absolute discretion of KeyCentrix.
6.2 Software Support. KeyCentrix shall provide to Licensee throughout the term of this Agreement, all reasonably necessary help desk services via telephone or electronic mail as requested by Licensee in connection with its use and operation of the Software or any problems directly arising regarding the same, subject to the parameters and pricing set forth on the applicable Quote. Software support is available 24 hours a day, seven days a week. During the hours of 7:30am to 4:30pm CST, Monday through Friday, support inquiries are fielded by our support center. After those hours, support inquiries will be sent to a messaging system and returned. Holiday and after-hours support is intended for emergency use only. Excessive use of holiday and after-hours support for non-emergency use will result in additional charges at KeyCentrix’s then standard rates. Notwithstanding anything to the contrary herein, Customer is required to provide a site-to-site VPN with IKE authentication in order for KeyCentrix to provide the full Software support services specified herein to Licensee. If Licensee fails to maintain the site-to-site VPN connection, certain Software support services may not be available and additional fees may be charged at KeyCentrix’s then current rates.
6.3 Troubleshooting. KeyCentrix shall, at no additional charge to Licensee, verify Licensee detected Software Program Errors (as defined below); provided that such program errors can be recreated with a test file using the appropriate release of the Software. A “Software Program Error” is defined as a malfunction of the licensed Software that causes it to fail to perform according to the Program Specifications, which is reproducible and if Licensee’s data files are not corrupted. If a Software Program Error is verified by KeyCentrix, KeyCentrix shall correct the Software Program Error so that the program will substantially comply with the Program Specifications. However, if the problem is determined by KeyCentrix to be an error caused by improper data entry, hardware malfunction, failure by the Licensee to use the Software properly, or any other events beyond KeyCentrix’s control, KeyCentrix shall consider the entire session of verifying, diagnosing, and remedying (if applicable) the problem as hotline support billable to Licensee at KeyCentrix’s then standard rates.
6.4 Exclusions. Maintenance and support services exclude, and KeyCentrix has no obligation to provide, any services for any problems or issues arising out of or related to (a) the operation of the Software on or in association with hardware, equipment, or with software or services other than those provided by KeyCentrix or meeting KeyCentrix’s current Program Specifications, (b) modification, alteration, or circumvention of the Software or any of its configuration, data files or libraries, or functionality by anyone other than KeyCentrix, (c) use of a version of the Software other than the most current release; or (d) improper use, abuse, accident, or neglect, including without limitation, Licensee’s failure to maintain appropriate environmental conditions for the Software and associated hardware, equipment, and software.
6.5 Maintenance and Support Fees. In consideration of the maintenance and support services offered by KeyCentrix hereunder, Licensee shall pay the maintenance and support fees at the time and in the amounts as set forth on the Quote. Although KeyCentrix shall have no obligation to provide services beyond those described herein, should KeyCentrix provide other support or maintenance services to Licensee (including, without limitation, services excluded under Section 6.4), Licensee shall pay KeyCentrix for such services (including time for diagnosis and troubleshooting) on a time-and-materials basis in accordance with KeyCentrix’s then standard rates.
6.6 Annual Support Increases. Upon each anniversary of the date of this Agreement, KeyCentrix may at its discretion increase the maintenance and support fees set forth in the Quote, provided, however, that the fees may be increased by no more than five percent (5%) per year.
7. Internet Adjudication
Licensee acknowledges that, in connection with the services provided under this Agreement, information shall be transmitted over a local exchange, interexchange and Internet backbone carrier lines and through routers, switches and other devices, owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet service providers, and others, all of which are beyond the control and jurisdiction of KeyCentrix. Accordingly, KeyCentrix assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with the services provided under this Agreement. KeyCentrix further makes no warranty and assumes no liability regarding the availability, reliability, or suitability of any Internet service provider or digital subscriber line services.
8.1 Term and Termination. The initial term of this Agreement will begin on the date indicated on the Quote and continue for the period set forth on the Quote. Upon expiration of the initial term of this Agreement, this Agreement shall automatically renew for successive periods of equal length to the initial term set forth on the Quote, unless written notice of the cancellation thereof is provided by either party in writing by mail, email or fax hereto at least ninety (90) days prior to the last day of the then-current term.
8.2 Termination for Cause. This Agreement may be terminated by KeyCentrix for cause in accordance with the following:
(a) This Agreement may be terminated immediately by KeyCentrix if Licensee violates any provision provided for in Sections 2, 9.2, or 14.7; or
(b) With respect to any other defaults by Licensee under his Agreement, KeyCentrix may terminate this Agreement if such defaults are not cured within ten (10) days following the date when KeyCentrix provides written notice of such default to Licensee by certified mail, return receipt requested. Any such notice shall specify the event giving rise to the alleged default. This Agreement shall remain in effect during the applicable cure period. Provided, KeyCentrix may also terminate this Agreement without providing Licensee the opportunity to cure upon providing not less than thirty (30) days’ notice if Licensee commits three (3) or more breaches within any twelve (12) month period, regardless of whether all three (3) breaches are timely cured.
8.3 Cessation of Use. Upon termination, cancellation, or expiration of this Agreement, Licensee shall cease using the Software and Documentation and promptly return to KeyCentrix all copies of the Software, Documentation and all other Confidential Information in its possession or control. Licensee shall delete all copies of such materials residing in on-line or off-line computer memory, and destroy all copies of such materials which also incorporate KeyCentrix’s Confidential Information. Licensee shall, within five (5) days from the effective date of the termination, certify in writing by an officer or director of the party that all copies of the Software and Documentation have been returned, deleted and/or destroyed.
8.4 Liquidated Damages. Licensee acknowledges that the amount of fees stated in this Agreement are based on KeyCentrix’s expectation that Licensee shall receive and pay for all fees associated with the License and services hereunder for the full length of the initial term of the Agreement and any renewal term(s), and that it would be very difficult to calculate the damages associated with KeyCentrix’s loss of such fees if Licensee terminates this Agreement prior to the end of the initial term or any renewal term of this Agreement. Therefore, Licensee agrees to pay KeyCentrix one hundred percent (100%) of the total amount of the average license, back-up, and transaction fees (calculated for the prior 12-months or portion thereof if the Agreement terminates prior to the end of the initial 12 month period) that would have come due during the balance of the initial term or any renewal term of this Agreement in the event that Licensee or KeyCentrix terminates this Agreement early. Further, in the event Licensee terminates this Agreement at any time before complete installation of the Software and for any reason other than due to KeyCentrix’s refusal to install such Software, then Licensee acknowledges and agrees that it will nonetheless be responsible for paying KeyCentrix the foregoing fees for the entire initial term set forth in Section 8.1.
9. Proprietary Rights and Confidentiality
9.1 Proprietary Rights. Licensee acknowledges and agrees that all copyrights, patents, trade secrets, and all other intellectual property rights of every kind and nature in and to the Software, Documentation and any work product related to same are and shall remain the exclusive property of KeyCentrix, and nothing in this Agreement should be construed as transferring any aspects of such rights to Licensee or any third party. Except for the limited License to use the Software, no other right or license is granted to Licensee, by implication or otherwise, and all other rights are expressly reserved to KeyCentrix.
9.2 Confidential Information. Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not use or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity, other than Licensee’s employees with a need to know such Confidential Information to perform employment responsibilities consistent with Licensee’s rights under this Agreement. Licensee shall safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the protections that Licensee uses to protect its own most confidential information, but in all cases such measures shall be no less than commercially reasonable.
9.3 Unauthorized Disclosure. Licensee shall notify KeyCentrix immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach by Licensee of its confidentiality obligations, and shall fully cooperate with KeyCentrix to help KeyCentrix regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.
9.4 Dissemination of Information. Notwithstanding the foregoing, Licensee agrees that all data provided to KeyCentrix in performing its services hereunder (including, but without limitation, the data provided for claims processing) may be compiled with other data acquired by KeyCentrix and used or disseminated to third parties by KeyCentrix as prescribed by the third parties.
10. HIPAA Compliance
KeyCentrix shall be considered a business associate of Licensee and may only use or disclose Protected Health Information (“PHI”) created, received, maintained, or transmitted by KeyCentrix from or on behalf of Licensee pursuant to a Business Associate Agreement to be executed by the parties simultaneously with the Quote. The Software may contain functionality that allows Licensee and/or its designated users to view information and data used in association with the Software through a website managed by KeyCentrix, which may include PHI. Licensee agrees that Licensee is solely responsible for Licensee’s compliance with HIPAA and other applicable laws with respect to such use and disclosure. Without limiting the foregoing, Licensee will not request KeyCentrix to use or disclose PHI in any manner that would not be permissible under the Privacy Rule or other applicable law if done by Licensee, except as otherwise allowed by the Privacy Rule and this Section 10. Licensee shall provide KeyCentrix with any limitation of, changes in, or revocation of its notice privacy practices, permissions by individuals, or other restrictions on use or disclosure of PHI to the extent such restrictions may affect KeyCentrix’s use thereof. Terms used but not defined in this Section 10 will have the meaning given them under the Privacy Rule or the Security Rule.
Licensee hereby agrees to indemnify, defend, and hold KeyCentrix (and its respective directors, officers, employees, affiliates, successors and assigns) harmless against any claim, suit, liability, damages, cost, or expense (including but not limited to, attorneys’ fees) arising out of or related to any (a) unauthorized use of the Software; (b) alleged infringement of any copyright, patent, or other intellectual property or proprietary right of a third party arising out of the use of the Software or Documentation by Licensee in any manner prohibited by this Agreement or resulting from the instructions of Licensee; (c) breach by Licensee of any of its obligations hereunder, including, without limitations, the provisions of Sections 2 and 9; or (d) a transaction between Licensee and any third party based on the use of the Software.
12. Limited Warranty & Disclaimers
KEYCENTRIX REPRESENTS AND WARRANTS THAT (I) IT HAS THE RIGHT TO GRANT TO LICENSEE USE OF THE SOFTWARE IN ACCORDANCE WITH THE TERMS, LIMITATIONS AND CONDITIONS SET FORTH HEREIN; (II) THE SOFTWARE WILL SUBSTANTIALLY PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH ITS DOCUMENTATION AND PROGRAM SPECIFICATIONS; AND (iii) THE SERVICES WILL BE PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS REASONABLY APPLICABLE TO THE APPLICABLE SERVICES. WITH RESPECT TO ANY HARDWARE SOLD OR PROVIDED BY KEYCENTRIX TO LICENSEE, KEYCENTRIX MAKES NO REPSRESENTAIOTN OR WARRANTIES BUT WILL PASS THROUGH TO LICENSEE ANY APPLICABLE MANUFACTURERS WARRANTIES. LICENSEE’S EXCLUSIVE REMEDY AND KEYCENTRIX’S SOLE OBLIGATION FOR ANY BREACH OF ITS WARRANTIES AS SET FORTH HEREIN IS THE OBLIGATION TO USE REASONABLE EFFORTS TO REPAIR THE AFFECTED SOFTWARE OR RE-PERFORM THE DISPUTED SERVICES. THE FOREGOING ARE THE ONLY WARRANTIES MADE BY KEYCENTRIX. KEYCENTRIX EXPRESSLY DISCLAIMS, AND LICENSEE HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. KEYCENTRIX DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE SOFTWARE OR DOCUMENTATION WILL OR CAN BE CORRECTED.
LICENSEE UNDERSTANDS AND AGREES THAT THIRD PARTY SOFTWARE IS NOT INCLUDED WITH THE SOFTWARE, ALTHOUGH THIRD PARTY SOFTWARE IS REQUIRED FOR THE PROPER OPERATION AND FUNCTION OF THE SOFTWARE. LICENSEE IS SOLELY RESPONSIBLE FOR OBTAINING ANY REQUIRED THIRD PARTY SOFTWARE FROM THE OWNERS OF THE SAME. KEYCENTRIX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THIRD PARTY SOFTWARE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE BROUGHT NO LATER THAN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. NOTWITHSTANDING, THE TERMS OF THE FOREGOING WARRANTIES SHALL NOT APPLY TO, AND KEYCENTRIX SHALL HAVE NO LIABILITY FOR, ANY NON-CONFORMITY RELATED TO, THE SOFTWARE IF THE SOFTWARE HAS BEEN (I) MODIFIED BY LICENSEE OR ANY THIRD PARTY NOT EXPRESSLY AUTHORIZED BY KEYCENTRIX; (II) USED IN COMBINATION WITH EQUIPMENT OR THIRD PARTY SOFTWARE OTHER THAN THAT WHICH IS CONSISTENT WITH THE PROGRAM SPECIFICATIONS; OR (III) MISUSED OR ABUSED.
13. Limitation of Liability
EXCEPT IN THE EVENT OF KEYCENTRIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, KEYCENTRIX SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, USE, AND DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF KEYCENTRIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE LIABILITY OF KEYCENTRIX TO LICENSEE FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID TO KEYCENTRIX BY LICENSEE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATLEY PRECEEDING THE EVENT/CAUSE GIVING RISE TO SUCH CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE FEES SET FORTH IN THE QUOTE REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL AND SPECIAL DAMAGES SET FORTH IN THIS AGREEMENT.
14.1 Injunction. Licensee agrees that KeyCentrix would be irreparably harmed by Licensee’s breach of its obligations hereunder, and such harm could not be compensated by money damages alone. Therefore, KeyCentrix will be entitled to obtain injunctive and other equitable relief for the threatened or actual breach by Licensee of this Agreement, without the obligation to post a bond or other security.
14.2 Headings. The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation.
14.3 Validity. If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected.
14.4 Assignment. Licensee may not assign its rights or obligations under this Agreement without the prior written consent of KeyCentrix, which may be granted or withheld in KeyCentrix’s sole and absolute discretion. Any such attempt to assign in violation of the foregoing restriction shall be null and void. This Agreement will be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.
14.5 Publicity. Licensee shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of KeyCentrix. This obligation will survive the cancellation or other termination of this Agreement. KeyCentrix shall have the right to issue press releases identifying Licensee as a business customer.
14.6 No Waiver. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance or constitute an ongoing waiver of the event giving rise to such right or remedy or similar event.
14.7 Solicitation. Licensee shall not solicit the employment of nor employ any KeyCentrix personnel during the term of this Agreement and for a period of two (2) years from the effective date of termination, cancellation, or expiration of this Agreement.
14.8 Governing Law. This Agreement shall be deemed to have been executed in the State of Kansas and will be governed by and construed in accordance with the laws of the State of Kansas, without reference the rules governing conflicts of law. The parties hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in Sedgwick County, Kansas.
14.9 Force Majeure. Neither party shall have any liability for any loss, or for any failure to perform any obligation hereunder, due to causes beyond its reasonable control, including without limitation, industrial disputes of whatever nature, power loss or fluctuations, telecommunications failure, hacker attacks, internet slowdowns, acts of God, or any other cause constituting a force majeure event; provided, however, that the foregoing will not excuse or delay Licensee’s payment obligations hereunder. Provided further, in no event will any pandemics, epidemics, or other virus outbreaks (including COVID-19), constitute a force majeure event for Licensee.
14.10 Survival. Sections 2, 3, 4, 8, 9, 10, 11, 12, 13, and 14 shall survive the expiration or termination of this Agreement for any reason, as well as any other sections that are intended by their nature or context to survive the expiration or termination of this Agreement.
14.11 Entire Agreement. This Agreement (as defined above) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended by Licensee except by a writing signed by both KeyCentrix and Licensee; provided that Licensee acknowledges and agrees that KeyCentrix reserves the unilateral right, in its sole discretion, to amend or modify the terms of this Agreement from time to time. In the event of a conflict between or among the terms set forth in these Standard Terms, and any Quote, or any other document made a part hereof, the documents shall control in the following order: these Standard Terms shall control unless a Quote expressly provides otherwise by reference to these Standard Terms and the contradicting statement or section of these Standard Terms, and in such event the Quote with the latest date shall control, and then these Standard Terms if the Quote satisfies the foregoing condition, and then any other documents.
14.12 Counterparts. This Agreement may be executed in counterparts and by facsimile, each of which shall be deemed an original and all of which together shall constitute one and the same document.
14.14 Compliance with Laws. Licensee shall comply with, and shall cause its personnel to comply with, all applicable foreign and United States federal, state and local laws, licenses and regulations related to or arising out of this Agreement, including, without limitation and as applicable, all laws and regulations related to promotion of pharmaceutical products, fraud and abuse, insider trading, discrimination, confidentiality, false claims and prohibition of kickbacks. For the avoidance of doubt, Licensee shall comply with (i) the Anti-Kickback provisions of the Social Security Act, 42 U.S.C. § 1320a-7b, and the relevant regulations at 42 C.F.R. Section 1001 (“Healthcare Fraud and Abuse Laws”); (ii) the False Claims Act, 31 U.S.C. § 3729-33; and (iii) the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§201, et seq. and the relevant regulations at 21 C.F.R. §202. Licensee understands and agrees that KeyCentrix does not give, and is not obligated to provide, any legal or accounting advice and does not represent or warrant that use by Licensee of the Software in the conduct of Licensee’s business will comply with all applicable federal or state laws. Licensee acknowledges that it will be relying upon its own legal counsel and accountants for advice on compliance with applicable laws and accounting requirements. It is Licensee’s obligation to inform KeyCentrix of any legal requirements applicable to the Software and to assess the Software to ensure that such legal requirements are satisfied. Licensee will defend, indemnify and hold harmless KeyCentrix, its affiliates, subsidiaries, employees, and authorized contractors for any losses suffered by KeyCentrix as a result of KeyCentrix relying on any information provided by Licensee regarding the legality of the manner in which Licensee conducts its business.
14.15 Expenses of Enforcement. In the event of any default regardless of whether cured, Licensee will pay KeyCentrix a sum equal to all expenses, including attorneys’ fees, if any, incurred by KeyCentrix in connection with the enforcement of any of the terms or conditions of this Agreement, together with interest on such amount at the maximum annual rate allowable by law or one and one-half percent (1 1/2%) per month, whichever is less, until the date when such amounts are paid to or collected by KeyCentrix. In the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys’ fees at trial and upon appeal, in addition to all other sums provided by law.
14.16 Arbitration. In the event of any dispute or controversy arising out of or related to this Agreement, including the interpretation of any provision of this Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this Agreement or by the mutual consent of the parties. Any arbitration proceeding conducted hereunder shall be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction. BEFORE INSTITUTING ARBITRATION, LICENSEE AGREES TO PROVIDE KEYCENTRIX WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO KEYCENTRIX. IF KEYCENTRIX IS UNABLE TO RESOLVE THE CLAIM WITHIN THIRTY (30) DAYS AFTER RECEIPT OF NOTICE, THEN LICENSEE MAY INITIATE ARBITRATION.
Last updated: July 16, 2020
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