PAPA HEALTHCARE, INC.
END — USER LICENSE AND SERVICES AGREEMENT
This End User License And Services Agreement (“Agreement”) sets forth the terms and conditions upon which you may download and use each of the PAPA software solutions subscribed for by You, including web application, web services, APIs (application programming interfaces) , app, databases, related services, and all updates, enhancements, and upgrades provided to You (collectively, the “Solution”) by PAPA Healthcare, Inc. (hereafter “PAPA”) and/or its authorized distributors. “You”, “your”, “yourself” means you, as an individual and the firm you represent, as applicable.
PLEASE READ THIS AGREEMENT CAREFULLY IN ITS ENTIREY BEFORE USING THE SOLUTION. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT — USE THE SOLUTION. THIS AGREEMENT CONTAINS WARRANTY DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT PAPA’S LIABILTIY TO YOU. BY USING THE SOLUTION, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THE PROVISIONS, DISCLOSURES, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE FAIR AND REASONABLE, AND YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THIS AGREEMENT IS VOLUNTARY AND IS NOT THE RESULT OF FRAUD, DURESS, OR UNDUE INFLUENCE EXERCISED UPON YOU BY ANY PERSON OR ENTITY.
- In General.
The terms of this Agreement will govern the Solution and any software updates, enhancements, and upgrades that replace and/or supplement the original Solution, unless such upgrade is accompanied by a separate license and service agreement in which case the terms of that license and service agreement will govern. You agree to comply with all terms, conditions, and restrictions set forth in this Agreement. You acknowledge that any use of the Solution not in compliance with this Agreement invalidates this license and may be prosecuted to the full extent of the law. By downloading and using this Solution, you represent and warrant that you are at least 18 years old.
- Permitted Use and Restrictions.
a. Grant of License and Reservations. Subject to the terms of this Agreement, PAPA grants you a limited, non-exclusive, revocable, temporary and non-transferable license and agreement to install and use the Solution and any future fixes, updates and upgrades provided to you solely for use in connection with your provision of medical care to patients including transmitting, accessing, managing, collecting, and displaying Patient Information (defined in clause 3 below) by and among authorized Healthcare Providers (defined in clause 4 below). This Solution is licensed and authorized, not sold, to you by PAPA for use only under the terms of this Agreement and any other contract or agreement between you and PAPA. PAPA reserves all rights not expressly granted to you. The rights granted in this Agreement are limited to PAPA’s intellectual property rights in the Solution and do not include any other patents or intellectual property rights. You may own the media on which the Solution is stored, but PAPA retains ownership of the Solution itself.
b. Reverse Engineering. Except as expressly set forth in this Agreement, you agree not to reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies, create derivative works from, distribute or provide others with the Solution, in whole or in part, or transmit or communicate the Solution over a network or to any third party. You agree not to lease, loan, sublicense, distribute, or otherwise provide others access to or with any aspect of the Solution, except as expressly permitted in this Agreement. Further, you agree not to develop, sell, or distribute applications that are capable of launching, being launched from, or are otherwise integrated with, the Solution or content accessed through the Solution without PAPA’s express written permission.
c. Further restrictions. You further agree to not use the Solution to do the following:
i. Transmit, access, or communicate any data that you do not have the right to transmit, access, or communicate under applicable law (as defined in clause 17(b) below), including the Health Insurance Portability and Accountability Act of 1996 as modified by the Health Information Technology for Economic and Clinical Health Act and all rules, regulations, and related laws and acts promulgated under and in connection therewith (collectively, “HIPAA”), under similar more stringent state laws, or under a contractual or fiduciary relationship;
ii. Infringe upon any patent, trademark, trade secret, copyright or other proprietary rights of any party.
iii. Transmit or communicate any data that contains software viruses or any other computer code, files, or programs designed, intended, or likely to interrupt, destroy or limit the functionality of any computer software or hardware or any telecommunications equipment;
iv. Interfere with or disrupt or circumvent the Solution;
v. Intentionally or unintentionally violate any applicable local, state, national or international law, including laws relating to securities or any regulations, requirements, procedures or policies in force from time to time relating to the Solution;
vi. Transmit or communicate any data that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or racially, ethnically or otherwise objectionable;
vii. Use the Solution while driving;
viii. Endanger yourself or others; or
ix. Impair your ability to provide medical treatment at the standard care.
3. Patient Information.
You acknowledge and agree that the Solution may be used to transmit, collect, access, manage, and display Patient Information by and among you, the patient, the patient’s caregivers, and other authorized Healthcare Providers, and their employees and contractors. You acknowledge and agree that Patient Information related to your treatment of patients may be stored by PAPA and/or its licensees and service providers in connection with providing the Solution and its related services, as well as shared among other users of the Solution and its related services. You acknowledge and agree that the Patient Information stored by PAPA shall not serve as the system of record for any patient, personal representative of a patient, health care provider, any business associate of a health care provider, or any affiliates of the foregoing. “Patient Information” means, collectively, information and data related to the provision of health care to patients, their health status, medical records, and related to the provision of health care to patients, their health status, medical records, and related information and documents, including consent to treatment forms, authorization to disclose medical information forms, Medicare forms, Medicaid forms, living wills, Directives to Physicians and Family or Surrogates, Medical Powers of Attorney, Out-of-Hospital Do-Not-Resuscitate Orders, Declarations of Mental Health Treatment, images, reports, and lab and test results, medical treatments performed by you and/or other Healthcare Providers, and other “protected health information,” as defined under HIPAA and similar terms as defined by state, national, or international law. You agree that your provision and use of all Patient Information will be in compliance with HIPAA and all other applicable laws.
- Medical Advice and Treatment.
PAPA does not provide medical advice, diagnosis, or treatment. You acknowledge and agree that the Solution is a conduit of information related to patients and the provision of health care to patients by independent third party healthcare providers including yourself, physicians, physician assistants, nurses, paramedics, emergency care responders, other physician extenders, healthcare systems, healthcare facilities, or other providers of health care services (collectively, “Healthcare Provider(s)”). You acknowledge and agree that the Healthcare Providers are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of all medical services, advice, instructions, treatment decisions, and other professional health care services performed, and that all diagnoses, treatments, procedures, and other professional heath care services will be provided and performed exclusively by or under the supervision of Healthcare Providers as they, in their sole discretion, deem appropriate. You further acknowledge and agree that PAPA does not provide or endorse any medical advice on or through the Solution and no information obtained through the Solution can be construed or used. PAPA will have an exercise absolutely no control, authority, or supervision over the provision of any medical services or other professional health care services. The use of the Solution, all text, graphics, images, audio content, audiovisual content, data, other materials and any other information provided on or entered into or made available through the Solution, including all healthcare related information, whether provided by you, the entity or organization with which you are employed or otherwise affiliated (“Your Organization”), other healthcare providers, or other third parties (collectively, “Content”) is solely your responsibility. PAPA will make all reasonable efforts in accordance with applicable laws and agreements to safeguard the integrity and availability of the Content. Further, when using the Solution, information may be transmitted over a medium that may be beyond the control and jurisdiction of PAPA and its suppliers. Accordingly, PAPA assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the Solution that is reasonably determined to be beyond PAPA’s control. Accordingly, you acknowledge and agree that you are solely responsible for all medical services, advice, instructions, diagnoses, treatments, procedures, and other services you provide in connection with using the Solution or otherwise.
- Third Party Technology.
Any and all third party technology provided, made available, linked to, or otherwise accessible through the Solution (“Third Party Technology”) is provided solely as a convenience to you and is not under the control of PAPA. PAPA does not endorse, recommend, or otherwise make any representations or warranties with respect to any Third Party Technology. PAPA does not have any responsibility or liability to you for any Third Party Technology which you access and you use at your own risk. Further, you agree to comply with any and all terms and conditions applicable to the use of Third Party Technology and otherwise ensure that you have obtained all rights, licenses, and clearances that may be necessary to use such Third Party Technology.
- Third Party Websites.
This Solution may contain links to other independent third party websites (“Linked Websites”). These Linked Websites are provided solely as a convenience to our visitors. Such Linked Websites are not under the control of PAPA, and PAPA is not responsible for and does not endorse the content of such Linked Websites, including any information or materials contained on such Linked Websites. PAPA does not have any responsibility or liability for any information, data, communications or materials available on such third-party sites. You therefore access these Linked Websites at your own risk.
- Collection of Information.
- Authorized Use.
Except as expressly set forth in this Agreement, you will protect the confidentiality of the Solution, and will not distribute or otherwise make available the Solution, or any portion of the Solution, in any form to any third party. Any rights you may possess in the Solution expire upon expiration or termination of this Agreement. You will employ the security measures necessary to prevent unauthorized users from accessing the Solution including your user ID(s) and password(s) (“Login Information”). You are solely responsible for, and will be liable for all access to the Solution in connection with your Login Information. Without the prior written consent of PAPA, you will not utilize the services of any third party to assist you in using the Solution. Further, you will be responsible for all activities that occur under or in connection with your account and your use of the Solution.
- Export Law Assurances.
You will not use or otherwise export or re-export this Solution except as authorized by United States law and the laws of the jurisdiction in which the Solution was obtained in particular, but without limitation, the Solution will not be exported or re-exported (1) into (or to a national or resident of) any U.S. embargoed countries, or (2) to anyone on the U.S. Treasury Department’s list of Specialty Designated Nationals or the U. S. Department of Commerce denied Person’s List or Entity List. By using the Solution, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
Presently, the Solution is available to persons in the United States only. You understand and acknowledge that you may not sign up for, access or attempt to access or use the Solution from countries outside the United States. PAPA may use technologies to verify your compliance. You agree to abide by United States, and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.
Trademarks, service marks, graphics and logos used in connection with the Solution are the trademarks of their respective owners. PAPA and the trademarks related to the Solution are trademarks of PAPA. You are not granted any right or license with respect to any of the trademarks mentioned above and any use of such trademarks.
- Copyright Infringement.
PAPA respects copyright and other laws. PAPA requires all Solution users to comply with copyright and other laws. PAPA does not, by the supply of the Solution, authorize you to infringe the copyright or other rights of third parties. As a condition to use the Solution, you agree that you must not use the Solution to infringe upon the intellectual property or other rights of others in any way. The unauthorized reproduction, distribution, modification, public display, communication to the public or public performance of copyrighted works is an infringement of copyright. You are entirely responsible for your conduct and for ensuring that it complies with all applicable copyright and data-protection laws. In the event you fail to comply with laws regarding copyrights or other intellectual property rights, data protection and privacy, you may be exposed to civil and criminal liability, including possible fines and jail time.
- Ownership and Title.
All title to and the rights in the Solution, including ownership rights to patents (registrations, renewals, and pending applications), copyrights, trademarks, service marks, domain names, trade dress, trade secrets, PAPA’s or third party other technology, any derivatives of and all goodwill associated with the foregoing is the exclusive property of PAPA and/or third parties.
- Future Functionality.
You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
a. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure Your Confidential Information includes your data; our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
b. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
17. Representations and Warranties.
In addition to the other representation and warranties contained in tis Agreement, you further represent, warrant, and covenant to PAPA the following:
a. All information you provide to PAPA as part of the registration process or otherwise will be truthful, accurate and complete, irrespective of any independent verification or other determination made by PAPA.
b. You, your practice, and all goods and services provided in connection with your use of the Solution will comply with all applicable international, national, federal, state, and local laws, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction within the United States, as applicable (collectively, “Law”).
c. You are legally authorized in accordance with applicable Law to provide any and all Patient Information that you provide to the Solution for all uses contemplated under this Agreement.
d. This Agreement has been duly, and validly authorized, accepted, agreed to, and delivered by you (or your authorized representative) and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with this Agreement. You represent that you have full power, capacity and authority to enter into this Agreement. If you are accepting on behalf of your employer or an entity, you represent that you have full legal authority to bind your employer or such entity to this Agreement; and
e. The performance by you of this Agreement and your use of the Solution does not and will not conflict with or violate (1) any law, rule, regulation, order, judgment, decree, agreement, instrument, or obligation applicable to you, or (2) if you are an entity, any provision of your organizational or governing documents.
18. Disclaimer of Warranties.
THE SOLUTION, AND ANY THIRD PARTY TECHNOLOGY ARE PROVIDE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITHOUT LIMITING THE EXTENT OF THE FOREGOING, PAPA, ITS LICENSORS, AND SUPPLIERS MAKE NO WARRANTY, REPRESENTATION, OR GUARANTY:
(1) AS OT THE SEQUENCE, ACCURACY, TIMELINESS, RELEVANCE, OR COMPLETENESS OF THE SOLUTION;
(2) AS TO ANY INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE APP REGARDING THE TREATMENT OF MEDICAL CONDITIONS, ACTIONS, DIAGNOSES, PROCEDURES, SOLUTIONLICATION OF MEDICATION, OR OTHER PROVISION OF HEALTHCARE SERVICES;
(3) THAT THE SOLUTION MAY BE RELIED UPON FOR ANY REASON, THAT THE — USE OF THE SOLUTION WIL BE UNINTERRUPTED OR ERROR FREE. FURTHER, YOUR — USE OF THE SOLUTION, AND ANY THIRD PARTY TECHNOLOGY IS AT YOUR OWN RISK. PAPA DOES NOT WARRANT THAT THE SOLUTION OR THIRD PARTY TECHNOLOGY WILL MEET YOUR SPECIFIC REQUIREMENTS TO THE EXTENT THAT PAPA MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW. THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
19. Limitation of Liability.
EXCEPT WHERE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL PAPA BE LIABLE TO YOU OR ANY OTHER PERSON FOR DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXCEMPLARY DAMAGES, COSTS, EXPENSES OR LOSSES OR LOST PROFITS IN CONNECITON WITH THE SOLUTION OR OTHERWISE RELATED TO THIS AGREEMENT THE PROVISIONS OF THIS SECTION WILL SOLUTIONLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILTIY, COST, EXPENSE, OR LOSS. WHEATHER IN CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. PAPA WILL NOT BE LIABLE FOR ANY FAILIURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT BECA– USE OF CIRCUMSTANCES BEYOND ITS CONTROL, WHICH CIRCUMSTANCES INCLUDE NATURAL DISASTER, TERRORISM, THIRD PARTY LABOR DISPUTES, WAR, DECLARATIONS OF GOVERNMENTS, TRANSPORTATION DELAYS, FAILURE OF HARDWARE, EQUIPMENT, OR TELECOMMUNICATIONS FAILURE, PAPA WILL NOT BE LIABLE FOR ANY FAILUIRE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT BECA– USE OF YOUR MISUESE OF THE SOLUTION BY YOU OR ANY OTHER PERSON. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IN THE EVENT THAT ANY EXCLUSIVE REMEDY PROVIDED HAS FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, IN NO EVENT WILL PAPA BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISINT OUT OF ANY — USE OR MIS– USE OF ANY THIRD PARTY TECHNLOGY. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. IN NO EVENT SHALL THE LIABILITY OF PAPA FOR ANY LOSS RELATED TO — USE OR INABILITY TO — USE THE SOLUTION EXCEED $5.00 U.S.
YOU WILL INDEMNIFY, DEFEND, AND HOLD INDEMNITEES (AS DEFINED BELOW) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES ARISING FROM OR ATTRIBUTABLE TO (1) YOUR PROVISION OF MEDICAL SERVICES AND TREATMENT OF PATIENTS IN CONNECTION WITH YOUR — USE OF THE SOLUTION OR OTHERWISE; (2) YOUR BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES, COVENANTIES, OR OTHER AGREEMENTS MADE UNDER THIS AGREEMENT; (3) ANY CLAIMS BY OR DISPUTES RELATED TO YOUR — USE OF THE SOLUTION; (4) ANY CONTENT YOU PROVIDE TO THE SOLUTION OR OTHERWISE TRANSMIT USING THESOLUTION; AND (5) BREACH OF CONFIDENTIALITY RELATED TO YOUR — USE OF THE SOLUTION.
a. Procedures. The indemnitee will give you written notice of any Claim for which indemnification is sought. However, failure to provide such notice will not relieve you from your liability or obligations under this Agreement, except to the extent you are materially prejudiced as a direct result of such failure. The Indemnitee will cooperate with you at your expense in connection with the defense and settlement of the Claim. You may not settle any indemnified Claim in a manner that adversely affects the Indemnitee without its prior written consent. Further, the indemnitee may participate in the defense of the Claim through counsel of its own choosing at its own cost and expense. If you fail to promptly assume the defense and employ counsel reasonably satisfactory to Indemnitee, or the Indemnitee has been advised by counsel that there exist actual or potential conflicting interests between you or your counsel and such Indemnitee, the Indemnitee may employ separate counsel, in addition to local counsel, to represent or defend such Indemnitee in such action or proceeding, and you agree to pay the fees and disbursements of such separate counsel as incurred. To the extent indemnification requires the payment of monies owed, such indemnification will occur as soon as reasonably possible after the determination of monies owed, and payment to the Indemnitee will be made within 30 days of a final determination of monies owed. Your obligations under this Section are in addition to any rights that any Indemnitee may have at common law or otherwise.
b. Defined Terms. “Claim” means each and every claim, request, accusation, allegation, assertion, complaint, petition, demand, suit, action, proceeding, and cause of action of every kind and description. “Indemnitee” means PAPA, its affiliates, and its and their respective officers, directors, shareholders, managers, members, agents, employees, representatives, successors, and assigns. “Loss” means each and every liability, loss, damage, and injury (including injury or damage to any property right, and injury, damage, or death to any Person), would, wrong, hurt, harm, expense, deficiency, diminution in value, obligation, expenditure and disbursement of any kind or nature (including all fees, costs and expenses of investigation, travel expenses, and value of time expended by personnel), settlement, fine, fee, cost, cost of court, and all expenses of litigation (including reasonable attorney’s fees) incident to any of the foregoing.
IN THE EVENT THAT YOU HAVE A DISPUTE WITHONE OR MOR — USERS OF THE SOLUTION FOR ANY REASON, YOU RELEASE PAPA (AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, SUBSIDIARIES, REPRESENTATIVES, AND EMPLOYEES) FROM ALL CLAIMS, DEMANDS AND DAMAGES (ACTDUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSUED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Unless otherwise terminated by PAPA as provided for in this Agreement, this Agreement will remain in effect for so long as PAPA licenses the use of the Solution to you.
PAPA may, in its sole discretion and without prior notice, terminate your access to the Solution for violations of this Agreement or other agreements or guidelines, which may be associated with your use of the Solution, or it PAPA deems it necessary in its sole discretion. Further, Your Organization may terminate, or request that PAPA terminate your access to the Solution. In any such event, you must destroy all copies of the Solution and all of its component parts. Failure to abide by this Agreement is a material breach of this Agreement for which PAPA may pursue all rights and remedies it has pursuant to this Agreement, and any other rights and remedies it may have at law or in equity. You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice and will cause irreparable harm to PAPA, for which monetary damages would be inadequate, and you consent to PAPA obtaining any injunctive or equitable relief that PAPA deems necessary or appropriate in such circumstances without the need to post a bond or satisfy any similar requirements. These remedies are in addition to any other remedies PAPA may have at law or in equity.
24. U. S. Government End Users.
The Solution is a “commercial item” as that term defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and its provided to the U. S. Government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202, all U. S. Government End Users acquire the Solution with only those rights expressly set forth in this Agreement.
25. General Provisions.
b. Assignment. This Agreement, and any rights or obligations in this Agreement will not be assigned by you without prior written consent of PAPA. Any attempt to assign or transfer this Agreement other than in accordance with this provision will be null and void. Subject to the foregoing, this Agreement and its terms and provisions inure to the benefit of and are binding upon the parties and their respective successors, heirs, personal representatives, and assigns.
c. Governing Law/Waiver of Trial by Jury.
i. You agree that all matters relating to your access to use of the Solution, including all disputes, will be governed by the laws of the United States and by the laws of the State of Alabama without regard to its conflicts of laws provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Shelby County, Alabama, and waive any objection to such jurisdiction or venue. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion of any provision, to be unenforceable, the remainder of this Agreement will continue in full force and effect.
ii. EXCEPT WHERE PROHITED BY LAW, THE PARTIES EXPESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUT, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
d. Notices. All notices, request, or consents sent to PAPA that are required or permitted under this Agreement must be in writing (including electronic form) and must be delivered to the address designated below in a notice served in the manner provided for below. Each notice, request, consent, or other communication will be given and will be effective: (1) if delivered by hand, when so delivered; (2) if delivered by nationally recognized overnight courier service or sent by United States Express Mail, upon confirmation of delivery; (3) if delivered by certified or registered mail, on the third following day after deposit with the United States Postal Solution; or (4) if delivered by facsimile, upon confirmation of successful transmission, and if delivered by email, upon confirmation of receipt by the other party in writing by return email.
PAPA Healthcare, Inc.
1200 Corporate Dr.
Birmingham, AL 35242
e. Severability. The provisions of this Agreement are severable. The invalidity, in whole or in part, of any provision of this Agreement will not affect the validity or enforceability of the remaining provisions which will remain in full force and effect and will be construed in the broadest possible manner to effectuate the purposes of this Agreement. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions that will achieve, to the extent possible, the economic, business, and other purposes of the void or unenforceable provisions.
f. Captions. The headings and captions of this Agreement are inserted for reference convenience and do not define, limit, or describe the scope or intent of this Agreement or any particular section, paragraph, or provision of this Agreement. Unless otherwise expressly provided, the words “include(s),” “included,” or “including” do not limit the preceding words of terms. Pronouns will refer to the masculine, feminine, neuter, singular, or plural as the context will require.
g. Waiver. The failure or delay of PAPA to exercise or enforce any rights or provision of this Agreement does not constitute a waiver of such right or provision.
h. Survival. All provisions which must survive in order to give effect to their meaning will survive any expiration or termination of this Agreement, including without limitation, Sections 2(b), 16, 17, 18 and 19 and all of your representations, warranties and indemnification obligations, which will survey any expiration or termination of this Agreement indefinitely.
Last Updated: November 27, 2017