IMPRIVATA USER ACCESS REVIEW TOOL LICENSE AGREEMENT
Under this User Access Review Tool License Agreement (the “Agreement”), Imprivata, Inc., a Delaware corporation, with its principal place of business at 20 CityPoint, 6th floor, 480 Totten Pond Rd.,Waltham, MA 02451 (“Imprivata”), Imprivata hereby agrees to provide to you (“Customer” or “you”) the User Access Review Tool (as described herein the “MART”) through a third-party hosting provider providing services to Customer (“Provider”) on the terms set forth in this Agreement. By accessing and using the MART you (either you as an individual or, if the software will be used by an entity, on behalf of that entity) represent and agree that you have the capacity and authority to bind yourself or, if applicable, the applicable entity, to the terms of this Agreement and agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not access and use the MART. This Agreement is effective as of the date Customer accesses the MART (“Effective Date”). Any terms and conditions in a purchase order (or in any similar document) which are in addition to, or conflict or are inconsistent with these terms are hereby rejected and superseded by the terms contained herein. The MART is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
- TERM, FEES, PAYMENT. The term of this Agreement shall commence on and be effective on the Effective Date (the “Initial Term”). The Initial Term shall be renewed automatically for successive annual periods (each such period, a “Renewal Period” and, together with the Initial Term, the “Term”) unless a party provides the other party with written notice, delivered at least sixty (60) days before the end of the Initial Term or the then-current Renewal Period, as applicable in the case of notice by Customer, or delivered at least one hundred eighty (180) days before the end of the Initial Term or the then-current Renewal Period, as applicable in the case of notice by Imprivata, of its intent not to renew the Agreement for any subsequent Renewal Periods. The annual fee for Customer’s use of the MART (“Annual Fee”) is specified in the Imprivata Quote. “Imprivata Quote” or “Quote” means the supplemental document issued by Imprivata, which specifies the MART and any other software, services and/or hardware which may be purchased by you, and the price associated with each. Imprivata shall sell to you and you shall purchase from Imprivata the MART and services as set forth in the applicable Imprivata Quote (or its equivalent if purchasing through an authorized reseller). Imprivata will invoice as set forth on the Imprivata Quote (or its equivalent if purchasing through an authorized reseller). You will pay invoices within 30 days of each invoice date. All purchases are non-cancellable and non-refundable. Imprivata may withhold shipments and cease providing any services until past-due payments are made. Late payments are subject to a charge of the lesser of 1.5% per month or the maximum allowed by law during such time as any payment is late as well as collection costs, including reasonable collection and attorney’s fees. Prices do not include, and you shall be responsible for, all applicable taxes of any kind due in respect of the transactions contemplated by this Agreement, except taxes on Imprivata's net income.
- OBLIGATIONS OF THE PARTIES.
- Imprivata’s Obligations. During the Term, Imprivata will: (i) provide the MART for Customer’s use in accordance with the terms of this Agreement, (ii) provide MART support in a diligent, prompt, and professional manner by individuals with the necessary knowledge and training to provide such support, (iii) assist Customer in transferring data from Customer’s systems into the MART according to the data format mutually agreed upon by the parties, such agreement not to be unreasonably withheld, (iv) provide MART support and respond promptly to Customer’s reasonable support requests, and (v) access and monitor MART usage metrics in order to troubleshoot MART issues and use aggregated, de-identified MART analytics for its own business purposes, including to enhance the MART and provide the services required herein, and (vi) provide Customer with all MART updates as generally available to other MART licensees and as provided below. For purposes of this Agreement, “Documentation” means any operator and user manuals, training materials, implementation guides, technical materials and other materials provided by Imprivata or Provider.
- Customer’s Obligations. During the Term, Customer will: (i) provide data for the MART in a mutually agreed format on a mutually agreed schedule, which shall reflect a recurring exchange not less frequently than weekly, (ii) provide IT support to assist with the MART installation process as reasonably requested by Imprivata, and respond within a reasonable time frame, (iii) operate the MART, and cause any Authorized Users to use the MART, in accordance with the Documentation, (iv) direct Authorized Users (defined below) will save, protect and maintain data on Customer’s own storage system which shall not be part of the MART, (v) use, and will ensure each Authorized User uses, reasonable care to avoid transmitting any virus, spyware, ransomware, or other malware to the MART, and (vi) maintain, and direct their Authorized Users to maintain, the access credentials required to access the MART in order to prevent unauthorized connections to the MART by third parties, and (vii) comply with any reasonable requirements of Provider related to the MART that are communicated by Imprivata to Customer in writing. Customer must contact Imprivata promptly if it believes the security of any Authorized User’s account or the MART has been compromised.
- Functionality. The MART is only able to generate data based on the current and accurate data provided by Customer and MART is intended by the parties to supplement Customer’s internal security and audit processes. The MART does not cause and cannot eliminate occurrences of the events in which there is unauthorized access to one of Customer’s systems outside of Customer’s defined rules and procedures (collectively, “Events”). Imprivata makes no guaranty or warranty that the MART will detect or avert an Event or the consequences therefrom.
- CLOUD ENVIRONMENT FUNCTIONALITY. If used in accordance with this Agreement, the MART will connect to servers outside of Customer’s network for purposes of storing and maintaining data, updating MART code, verifying that Customer’s Authorized Users have the appropriate credentials (i.e., has a valid account), and/or reporting usage metrics to a Imprivata server.
- MART LICENSE AND PERMITTED USE BY CUSTOMER; ONGOING ACCESS.
- Subject to the terms of this Agreement, Customer is hereby granted a non-exclusive, non-transferable and limited right to allow its Authorized Users to use the MART and Documentation during the Term.
- Upon termination or expiration of this Agreement for any reason, Customer will cease, and will ensure the Customer Personnel (defined below) cease, all use of the MART. Imprivata reserves all rights in the MART not expressly granted. For purposes of this Agreement “Customer Personnel” means: (i) the employees of Customer; and (ii) Customer’s third party contractors who are obligated to comply with the terms of this Agreement relating to obligations of confidentiality and acceptable use and other similar standards relating to use of the MART. Notwithstanding the foregoing, Customer remains fully liable to Imprivata for all breaches of this Agreement by Customer Personnel and any other activity of Customer Personnel with respect to the MART and this Agreement.
- Subject to Customer’s login systems and controls, Customer will have the right to assign such number of usernames to Authorized Users as may be required to utilize the MART for the purposes set forth herein. Usernames and passwords will be assigned to specific individuals as Authorized Users and no sharing of usernames and passwords is permitted. Customer shall be responsible for any unauthorized use of the MART, usernames and passwords by any Authorized Users.
- DISCLAIMER OF WARRANTIES.
- Imprivata will not be responsible for: (x) Customer’s use of or decisions made based on any outputs from the MART, or (y) any damage resulting from any (i) deviation from Imprivata's reasonable written installation or operating instructions provided with respect to the MART, (ii) installation of the MART in a manner which is inconsistent with Imprivata's reasonable written instructions, (iii) alteration or modification of the MART in any manner not approved by Imprivata, (iv) misuse, neglect or abuse of the MART by Customer, (v) service of the MART by anyone other than Imprivata or an Imprivata authorized third-party, or (iv) other improper application, installation or operation of the MART by parties other than Imprivata or its designees.
- EXCEPT AS OTHERWISE AGREED IN WRITING, THE MART IS PROVIDED TO CUSTOMER SOLELY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY WARRANTY THAT MAY ARISE THROUGH A COURSE OF DEALING. IMPRIVATA DOES NOT WARRANT THAT THE MART, OR ANY COMPONENT OF THE MART, WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
- LIMITATION OF LIABILITY. EXCEPTING ONLY IN THE EVENT OF A BREACH BY YOU OF SECTION 8 (“TITLE AND OWNERSHIP”) OR A BREACH BY EITHER PARTY OF SECTION 9 (“CONFIDENTIAL INFORMATION”), NEITHER PARTY IS LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, FORESEEABLE OR UNFORESEEABLE, OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF PRODUCTS, OR DOWNTIME) ARISING FROM THE SALE, DELIVERY OR USE OF THE APPLIANCES, PERFORMANCE OF ANY SERVICES OR ANY OTHER ACT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IMPRIVATA'S MAXIMUM LIABILITY TO YOU, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE FEES PAID AND PAYABLE BY YOU DURING THE PRECEDING TWELVE MONTH PERIOD. MONETARY DAMAGES AS LIMITED BY THIS SECTION SHALL SERVE AS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM UNDER THIS AGREEMENT FOR WHICH AN EXCLUSIVE REMEDY IS NOT PROVIDED, AND AS YOUR SOLE AND EXCLUSIVE ALTERNATIVE REMEDY SHOULD ANY EXCLUSIVE REMEDY HEREUNDER BE FOUND TO FAIL OF ITS ESSENTIAL PURPOSE. NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED.
- INTELLECTUAL PROPERTY CLAIMS. Imprivata will defend you from and against third party claims (and will pay any resulting damages, costs or liabilities awarded by a court of final jurisdiction) arising solely from a claim that the MART infringes any United States or European Union patent or any copyright rights (in or of countries that are signatories to the Berne Convention) of a third party. Imprivata's obligation is subject to your compliance with the following procedures: (a) you will promptly notify Imprivata in writing of any claim or the commencement of any suit, action, proceeding or threat that you believe will result in losses for which you will be entitled to defense, provided however, that the failure to give such prompt written notice shall not affect the indemnification provided hereunder except to the extent that such failure shall have actually prejudiced Imprivata; (b) you will tender to Imprivata (and its insurer) full authority to defend or settle any such claim; and (c) you shall cooperate in the defense of such claim. Imprivata has no obligation to indemnify you in connection with any settlement made without Imprivata's prior written consent. Imprivata will defend you against any such claim brought against you by counsel retained at Imprivata's own expense and of Imprivata's own choosing. You shall be permitted to monitor the defense of any such claim with counsel of your choosing at your sole cost and expense. Imprivata shall have no obligation to indemnify you for infringement claims arising in whole or in part from (1) designs, specifications or modifications originated or requested by you, (2) the combination of the MART or any part thereof with other equipment, software or products not supplied by Imprivata if such infringement or misappropriation would not have occurred but for such combination, or (3) your failure to install an update, where same would have avoided such claim. You will indemnify and hold Imprivata harmless from and against claims that are the subject of clauses (1)-(3). In the event that the use or sale of any of the MART is enjoined or, in Imprivata's judgment may be enjoined, Imprivata will either: (i) procure for you the right to continue to use the MART, (ii) replace the infringing portion of the MART with a functionally equivalent product or modify it so that it becomes non-infringing, or (iii) terminate your access to the infringing or misappropriating MART and, reimburse you for any prepaid fees for the term-based MART licenses on a pro-rata basis. Upon Imprivata's fulfillment of the alternatives set out in this section, Imprivata shall be relieved of any further obligation or liability to you as a result of any such infringement or misappropriation. THIS SECTION STATES IMPRIVATA'S ENTIRE LIABILITY TO YOU AND YOUR SOLE REMEDY FOR ANY INFRINGEMENT CLAIMS CONCERNING THE MART.
- TITLE AND OWNERSHIP. At all times, the MART shall remain the sole and exclusive property of Imprivata, and, as between Customer and Imprivata, Imprivata or the Provider, owns all rights, title, interests, including all intellectual property rights thereto and in all modifications, adaptations, enhancements and derivative works thereof whether made by Imprivata, Customer or jointly. Customer expressly acknowledges that it is receiving a limited license from Imprivata as set forth herein. Except for the rights expressly granted to Customer herein, all title, rights and interest in and to the MART, and all intellectual property rights contained therein and created under this Agreement shall at all times solely and exclusively remain with Imprivata. Customer agrees that no proprietary materials created in connection with this Agreement are “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Customer owns any intellectual property rights in Imprivata’s proprietary materials, Customer hereby irrevocably assigns and transfers to Imprivata all rights, title and interest in such proprietary materials, provided, however, nothing herein shall be interpreted to assign or transfer any proprietary materials of Customer or its licensors. To the extent that, by operation of law, any Customer Personnel owns any intellectual property rights in such proprietary materials, Customer shall obtain all such rights and, immediately upon obtaining them, hereby irrevocably assigns and transfers to Imprivata all rights, title and interest in such proprietary materials. Imprivata expressly reserves all rights of Imprivata not expressly granted to Customer hereunder. Except as expressly permitted hereunder, Customer shall not transfer, license, assign, distribute, translate, reverse engineer, decompile, disassemble, or modify the MART or duplicate the MART or portions thereof, or allow any third party to do any of the foregoing.
- CONFIDENTIAL INFORMATION.
- During this Agreement, each party may have access to information that is considered confidential by the other. This information may include, but is not limited to, proprietary materials, technology, know-how, procedures, processes, protocols, specifications, usage metrics, strategic plans, designs, systems, software object code and source code, documentation, sales and marketing plans, results of testing, customer information, financial information, product information, proposed business arrangements, methods of operation and compilations of data (“Confidential Information”).
- Each party shall use the other’s Confidential Information only for the purposes of this Agreement (which, for Customer, will include, but not be limited to, use of MART). Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party's Confidential Information. Neither party shall export, disseminate or otherwise transfer, in writing, orally and/or electronically, the other party’s Confidential Information outside of the United States. The confidentiality provisions of this Agreement do not apply to information that is or becomes generally available or known to the public through no act or omission of the receiving party; was received lawfully from a third party through no breach of any known obligation of confidentiality owed to the disclosing party; or created by a party independently of its access to or use of the other party’s Confidential Information.
- Each party is permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties (“Recipients”) on a need to know basis only, provided that such Recipients have contractual or legal confidentiality obligations to that party no less stringent than those contained in this Agreement. Each party shall be and remain fully liable and responsible for its Recipients’ unauthorized disclosure or use of the other party’s Confidential Information. Each party is permitted to disclose the other party’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that, unless otherwise prohibited by law or directed by governmental authorities, it uses reasonable efforts to give the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its Confidential Information.
- Upon termination of this Agreement, each party shall return or destroy, as legally permitted, the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s, benefit; provided, however, a party may retain an archival copy of Confidential Information and nothing herein shall be interpreted to require the destruction or return of Confidential Information retained in customary back-ups and similar files. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
- TERMINATION AND DEFAULT. This Agreement, and Customer’s possession and use of the MART, shall automatically terminate upon the expiration of the Term. In addition, each party shall have the right to terminate this Agreement upon written notice to the other party if a party breaches this Agreement, and does not cure such breach within thirty (30) days following receipt of written notice thereof from the non-breaching party.
- ASSIGNMENT. This Agreement is binding upon and inures to the benefit of the parties, their successors and permitted assigns. Neither party may assign or transfer its rights hereunder without the other party’s prior written consent, provided that Imprivata may assign this Agreement in connection with a merger or consolidation or the sale of all or substantially all of its assets or stock.
- GOVERNING LAW AND JURISDICTION. This Agreement and the rights and obligations of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts in the United States. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) as adopted by any state are specifically excluded from application hereunder.
- NOTICE. All notices under this Agreement must be in writing and sent either by hand delivery; certified mail, return receipt requested; overnight courier; email or by facsimile (with a confirming copy of any notices by email or facsimile simultaneously sent by certified mail or overnight courier) and will be effective when received by such party, or refused by such party, at the address for notice given below or such other address as will have been provided in writing.
For Imprivata, such notice shall be provided to:
Attn: Legal Department
20 CityPoint, 6th floor
480 Totten Pond Rd.
Waltham, MA 02451
- ACTS BEYOND CONTROL. Neither party shall be held responsible for any delay, damages or failure of performance to the extent such delay, damages or failure is caused in whole or in part by fire, explosion, pandemic, power failures, strikes or other labor disputes, water, earthquake, acts of God, elements, war, civil disturbances, acts of civil or military authorities, acts of terrorism, acts or omissions, unauthorized use of Imprivata’s services, or any other causes beyond a party’s reasonable control, whether or not similar to the foregoing, provided the affected party has used reasonable efforts to avoid delays, damages and failures caused by such events and uses reasonable efforts to limit such delays, damages and failures following the relevant event.
- MISCELLANEOUS. This Agreement including any exhibits attached and incorporated hereto, sets forth the final, complete, and entire agreement between the parties with respect to its subject matter, and supersedes and replaces any prior or contemporaneous agreements, whether written or oral, regarding such subject matter. No additional or different terms on any purchase order or other ordering document of Customer shall have any effect on this Agreement, and all such additional or different terms are hereby expressly excluded from this Agreement by the parties. This Agreement cannot be changed except pursuant to a written amendment signed by both parties. No failure by a party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of a party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party, and any such waiver shall only be applicable to the specific instance referenced in such writing. The relationship between the parties hereto is that of independent contractors, and no agency, partnership, joint venture, employment or franchise relationship between the parties is created hereunder. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Agreement. All payment obligations of Customer, and any provisions which by their terms contemplate continuing effectiveness, shall survive any termination or expiration of this Agreement. If any part of this Agreement shall be held to be void or unenforceable, such part will be treated as severable, leaving valid the remainder of this Agreement notwithstanding the part or parts found to be void or unenforceable. Except as otherwise provided in this Agreement, nothing in this Agreement shall be deemed to create any right or benefit in any person not a party hereto. Customer agrees that nothing in this Agreement shall be deemed to prevent Imprivata at any time from entering into any similar or other business relationship of any kind with any third party for any purpose. All definitions contained in this Agreement apply to both their singular and plural forms, as the context may require. The terms “herein”, “hereunder”, and “hereof” refer to this Agreement.
- PUBLICITY. Imprivata may refer to Customer in media releases, public announcements or public disclosures relating to this Agreement only with the prior written approval of Customer, which approval may be granted or withheld in Customer’s sole discretion.