Please do not use or load software from this site or any associated materials (collectively, the “Software”) until you have carefully read the following terms and conditions. By loading or using the Software, you agree to the terms of this Agreement.
DEVICE BASED SITE LICENSE. A Device Based Site License is granted to an institution to be used on a single site on a limited, agreed upon devices. An institution is defined as one named company or one named individual; a site is defined as one physical location, with one mailing address. Multiple branches of an institution are considered separate sites; however, a bundled pricing can be provided for multi-license purchases. A Device is any computer or a computer terminal where the program can be accessed from. If the Software is installed on a common computer, and multiple terminals access it, then each accessing terminal is considered a separate device. A computer, like a laptop or desktop, that may access the software using a screenshare program or from a server, such as Citrix server, are considered separate devices. For example, 10 computers accessing a single installed copy of the program, by connecting to a common server, will be considered as 10 devices. Under a Device Based Site License, you may copy and use the Software onto the agreed number of devices belonging to your institution for your institution’s use, at a single site. You may make a reasonable number of back-up copies of the Software, subject to these conditions:
- You may not copy, modify, rent, sell, distribute or transfer any part of the Software except as provided in this Agreement, and you agree to prevent unauthorized copying of the Software.
- You may not reverse engineer, decompile, or disassemble the Software or the documentation associated with the Software.
COPYRIGHT LICENSE. All documentation, formatting, screen designs, workflow, designs and displays in the Software are copyright of Healthware Inc. Subject to the terms of this Agreement, Healthware, Inc. grants the licensee a nonexclusive, nontransferable, worldwide, fully paid-up license under Healthware, Inc. copyrights to: • Use and copy Software internally for your own use and maintenance purposes. • Use of the documentation for internal reference. • No part of the documentation can be distributed to any third party or used for any nonsoftware related purposes without prior consent of Healthware Inc.
PATENT & TRADEMARK LICENSE. PrecisePK® is a registered trademark of Healthware Inc. Subject to the terms of this Agreement, Healthware, Inc. grants licensee a non-exclusive, non-transferable, worldwide patent license under Licensed Patent Claims to make copies of and use the Software solely for the reproduction or use of the Software authorized under the Copyright License. “Licensed Patent Claims” means the claims of Healthware, Inc.’s patents that are necessarily and directly infringed by licensed reproduction or use of the Software that is authorized under the Copyright License. Licensed Patent Claims are only those claims which Healthware, Inc. can license without paying, or getting the consent of, a third party.
ADDITIONAL RESTRICTIONS AND DISCLAIMERS. You may not disassemble, reverse-engineer, or decompile any Software. You may not use any part of the documentation that accompanies or is included within the Software to develop any other software.
EXCEPT AS PROVIDED IN THIS AGREEMENT, NO OTHER LICENSE, EXPRESS OR IMPLIED, IS GRANTED TO ANY OTHER INTELLECTUAL PROPERTY RIGHTS, BY ESTOPPEL OR OTHERWISE.
The Software is protected by the intellectual property laws of the United States and other countries, and international treaty provisions. An essential basis of the bargain in this Agreement is that no licenses or other rights, including but not limited to patent and copyright licenses or rights, are granted to You by implication, estoppel or otherwise, except for the licenses expressly granted in the preceding paragraphs.
You agree that the consideration provided under this Agreement only covers the licenses expressly granted to You in the preceding paragraphs, that any other rights, including but not limited to additional patent rights, would require an additional license and additional consideration, and that nothing in this Agreement requires or will be treated to require Healthware, Inc. to grant any such additional license.
The consideration for the license in this Agreement reflects Healthware, Inc.’s continuing right to assert patent claims against any modifications or derivative works (including, without limitation, error corrections and bug fixes) of, or combinations with, the Software that are made by You or third parties that infringe any Healthware, Inc. patent claim that is not a Licensed Patent Claim.
You may not subject the Software, in whole or in part, to any license obligations of Open Source Software including without limitation combining or distributing the Software with Open Source Software in a manner that subjects the Software or any portion of the Software provided by Healthware, Inc. hereunder to any license obligations of such Open Source Software. “Open Source Software” means any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from or distributed with such software (a) be disclosed or distributed in source code form; or (b) be licensed by the user to third parties for the purpose of making and/or distributing derivative works; or (c) be redistributable at no charge. Open Source Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models substantially similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (b) the Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community Source License (SCSL), (f) the Sun Industry Source License (SISL), and (g) the Common Public License (CPL).
DATA SECURITY. All data stored or processed by the Software will be in full compliance with the requirements of the Health Insurance Portability and Accountability Act of 1996 as amended (“HIPAA”). No patient identifying information, as defined under HIPAA (“PHI”), is ever accessed or shared by employees or personnel of Healthware Inc. at any time. PHI collected by the Software is automatically stored in an encrypted database without human involvement. All Healthware, Inc. databases are securely encrypted and used in strict compliance with HIPAA requirements. All Protected Health Information (PHI) as defined under HIPAA is kept private and will only be accessible to valid license holders, and all the communications regarding PHI will occur solely between such valid license holders and the Software. Healthware Inc. only uses non-PHI information for data processing, research and improving the user experience in compliance with HIPAA regulations. No PHI is ever shared with any person or entity other than the valid license holders. Healthware, Inc. will back-up all data on encrypted databases which will only be accessible to valid license holders.
During verification of Software licenses and database use, only non-PHI, and information related to the applicable Software license and use is accessed by Healthware Inc. Healthware, Inc. may use non-PHI to
improve its processing of the pharmacokinetics data, show data analytics to the license holders, improve user experience; however, all such use will be in strict compliance with HIPAA requirements.
FEES. Software license subscription fees for the Software are set forth at PrecisePK.com
AUDIT. Healthware, Inc. shall have the right to inspect or have an independent auditor inspect Your relevant records to verify Your compliance with the terms and conditions of this Agreement.
CONFIDENTIALITY. The Software includes confidential information of Healthware, Inc. You may not reveal, disclose or distribute the Software in any form, or display or perform it publicly or distribute any product thereof. You may not use the Software or any information relating to the Software except for the purposes stated above. This obligation of confidentiality shall not apply to information which is shown by contemporaneous documentation to be: (i) rightfully available to the public other than by breach of this Agreement by You; (ii) rightfully received by You from a third party without breach of a duty to Healthware, Inc.; (iii) independently developed by Your employees without access to the Software; or (iv) rightfully known to You prior to first receipt from Healthware, Inc. You acknowledge and agree that if You breach these Confidentiality provisions, Healthware, Inc. will suffer irreparable harm for which money damages will not be an adequate remedy. You therefore agree that Healthware, Inc. will be entitled to an injunction restraining any breach or threatened breach of these Confidentiality provisions without the necessity of proving irreparable harm or posting a bond, in addition to all other rights and remedies at law, in equity and under this Agreement. If You wish to have a third party consultant or subcontractor (“Contractor”) perform work on Your behalf which involves access to or use of Software, You shall obtain a written confidentiality agreement from the Contractor which contains terms and obligations with respect to access to or use of Software no less restrictive than those set forth in this Agreement and excluding any distribution rights, and use for any other purpose. Otherwise, You shall not disclose the terms or existence of this Agreement or use Healthware, Inc.’s Name in any publications, advertisements, or other announcements without Healthware, Inc.’s prior written consent. You do not have any rights to use any Healthware, Inc. trademarks or logos.
OWNERSHIP OF SOFTWARE AND COPYRIGHTS. All right, title and interest in and to the Software, including all intellectual property rights therein, and all modifications, extensions, customizations, scripts or other derivative works of and to the Software provided or developed by Healthware, Inc. are and will remain with Healthware, Inc. Except for the license rights granted to you under this Agreement, you have no right, license or authorization with respect to Software. PrecisePK® is a registered trademark of Healthware Inc. All intellectual property rights in service marks, logos and product and service names (“Marks”) associated with the Software are marks of Healthware, Inc. and you agree not to display or use the Marks in any manner without our express prior written permission. You may not mortgage, pledge or encumber any of the Software in any way. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You may not remove any copyright notices from the Software.
OPEN SOURCE STATEMENT. The Software may include Open Source Software that is licensed pursuant to the applicable Open Source Software license agreement(s) identified in the Open Source Software comments in the applicable source code file(s) and/or file header(s) provided with or otherwise associated with the Software. Additional detail may be provided (where applicable) in the accompanying on-line documentation, or within the user interface of the device, if any. With respect to Open Source Software, nothing in this Agreement limits any rights under, or grants rights that supersede, the terms of any applicable Open Source Software license agreement. Neither Licensee nor any OEM, ODM, customer, or distributor, shall subject the Software or associated documentation, in whole or in part, to any license obligations associated with Open Source Software including combining or distributing the Software and/or documentation with Open Source Software in a manner that subjects Healthware, Inc. or any portion of the Software to any license obligations of such Open Source Software.
SUPPORT. We will support the Software by providing bug fixes and software updates free of charge. We will also provide (a) prompt email replies to any questions or issues you raise, and (b) phone support as set forth in PreciseK.com. Responses to reported support issues will be made within twenty-four (24) hours. We may make changes to the Software, or to items referenced therein, at any time without notice.
EXCLUSION OF OTHER WARRANTIES. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. HEALTHWARE, INC. DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE SOFTWARE. THIS SOFTWARE IS NOT INTENDED TO REPLACE THE SOUND CLINICAL JUDGMENT OF THE USER IN THE CARE OF PATIENTS.
LIMITATION OF LIABILITY. IN NO EVENT SHALL HEALTHWARE, INC. OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF HEALTHWARE, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE SOFTWARE LICENSED HEREUNDER IS NOT DESIGNED OR INTENDED FOR USE IN ANY TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO PERSONAL INJURY OR DEATH. YOU SHALL INDEMNIFY AND HOLD HEALTHWARE, INC. AND THE HEALTHWARE, INC. PARTIES HARMLESS AGAINST ALL CLAIMS, COSTS, DAMAGES, AND EXPENSES, AND REASONABLE ATTORNEY FEES ARISING OUT OF, DIRECTLY OR INDIRECTLY, THE DISTRIBUTION OF THE SOFTWARE AND ANY CLAIM OF PRODUCT LIABILITY, PERSONAL INJURY OR DEATH ASSOCIATED WITH ANY UNINTENDED USE, EVEN IF SUCH CLAIM ALLEGES THAT AN HEALTHWARE, INC. PARTY WAS NEGLIGENT REGARDING THE DESIGN OR MANUFACTURE OF THE SOFTWARE. THE LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HEALTHWARE, INC. AND YOU. HEALTHWARE, INC. WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE WITHOUT SUCH LIMITATIONS.
TERMINATION OF THIS AGREEMENT. We may terminate this Agreement immediately, upon written notice, if You violate its terms. Upon termination, You will immediately destroy the Software (including providing certification of such destruction) back to Healthware, Inc. or return all copies of the Software to Healthware, Inc. In the event of termination of this Agreement, all licenses granted to You hereunder shall immediately terminate, except for licenses that you have previously distributed to Your end-users pursuant to the license grant above. APPLICABLE LAWS. Any claims arising under or relating to this Agreement shall be governed by the internal substantive laws of the State of California without regard to principles of conflict of laws. Each Party hereby agrees to jurisdiction and venue in the courts of San Diego County, California, for all disputes and litigation arising under or relating to this Agreement. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The Parties consent to the personal jurisdiction of the above courts.
EXPORT REGULATIONS / EXPORT CONTROL. You shall not export, either directly or indirectly, any product, service or technical data or system incorporating such items without first obtaining any required license or other approval from the U. S. Department of Commerce or any other agency or department of the United States Government. In the event any product is exported from the United States or re-exported from a foreign destination by You, You shall ensure that the distribution and export/re-export or import of the product is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government. You agree that neither you nor any of your subsidiaries will export/re-export any technical data, process, product, or service, directly or indirectly, to any country for which the United States government or any agency thereof or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining such license or approval.
GOVERNMENT RESTRICTED RIGHTS. The Software is a “commercial item” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, You will provide the Software to the U.S. Government as an End User only pursuant to the terms and conditions therein. Contractor or Manufacturer is Healthware, Inc. Corporation, 2200 Mission College Blvd., Santa Clara, CA 95052.
ASSIGNMENT. You may not delegate, assign or transfer this Agreement, the license(s) granted or any of Your rights or duties hereunder, expressly, by implication, by operation of law, by way of merger (regardless of whether You are the surviving entity) or acquisition, or otherwise and any attempt to do so, without Healthware, Inc.’s express prior written consent, shall be null and void. Healthware, Inc. may assign this Agreement, and its rights and obligations hereunder, in its sole discretion.
ENTIRE AGREEMENT. The terms and conditions of this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and merges and supersedes all prior, contemporaneous agreements, understandings, negotiations and discussions. Neither of the parties hereto shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter hereof other than as expressly provided for herein. Healthware, Inc. is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Healthware, Inc. Without limiting the foregoing, terms and conditions on any purchase orders or similar materials submitted by You to Healthware, Inc., that are in conflict with these terms, shall be of no force or effect.
NO AGENCY. Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties.
SEVERABILITY. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
WAIVER. A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. No waiver of any provision of this Agreement will be valid unless in writing, specifying the provision to be waived, and signed by the party agreeing to the waiver.