V-VISIT SIM SOFTWARE AS A SERVICE TRIAL License Agreement
PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON, YOU INDICATE YOUR ACCEPTANCE OF ITS TERMS AND CONDITIONS AND AGREE TO BE BOUND AS SET FORTH HEREIN. YOU REPRESENT AND WARRANT THAT YOU HAVE THE REQUISITE AUTHORITY AND LEGAL CAPACITY TO BIND YOUR INSTITUTION TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE BUTTON.
This SOFTWARE AS A SERVICE TRIAL LICENSE Agreement (“Agreement”), is made between UNIVERSITY OF TENNESSEE RESEARCH FOUNDATION, a non-profit organization having a place of business at 600 Henley Street, UT Conference Center Suite 211, Knoxville, Tennessee 37996 (“UTRF”), and the individual or institution (“LICENSEE”). This agreement will be effective as of the date the LICENSEE agrees to the terms of this Agreement (“Effective Date”).
Background
V-Visit Sim is a telemedicine training application developed by Drs. Lisa Merritt and Xueping Li (“Contributors”) at the University of Tennessee, a public higher education institution and instrumentality of the State of Tennessee (“UT”). The application simulates telemedicine encounters through patient–provider chat messages, offering interaction, assessment, and feedback and is designed to improve diagnostic competency and decrease diagnostic errors (“Course”). UTRF desires to disseminate the Course data for use in the public interest and LICENSEE desires to license Course solely for its internal training and educational purposes of its authorized trial users (“Users”).
- License Grant
1.1 Commencing on the Effective Date, and provided LICENSEE complies with the terms of this Agreement, and subject to UTRF’s reservation of rights, UTRF hereby grants to LICENSEE, and LICENSEE hereby accepts, a limited, non-transferable, non-sublicensable non-exclusive license for up to fifty (50) Users to access and use the Course. LICENSEE expressly acknowledges that the Course may only be accessed by Users. The foregoing license shall not otherwise extend to any parent corporation, affiliate, subsidiary, division, other corporation, entity, organization, or group that is in any way affiliated or otherwise connected with LICENSEE. All rights not expressly granted to LICENSEE are hereby reserved by UTRF. Except for the limited non-exclusive license grant, LICENSEE does not acquire any rights to the Course.
- Conditions
2.1 LICENSEE acknowledges that Course is the intellectual property of UTRF, and LICENSEE shall cite Course copyright in all in any reference to the Course as “Copyright [YEAR] University of Tennessee Research Foundation. Authors: Lisa Merritt and Xueping Li. All rights reserved.”. LICENSEE shall not remove or obscure rights management markings, such as copyright notices, from Course.
2.2 LICENSEE shall not sublicense, sell, lend, rent, lease or otherwise transfer all or any part of LICENSEE’s access to the Course to any organization or individual that is not a party to this Agreement (“Third Parties”). LICENSEE’s Users are not Third Parties.
2.3 LICENSEE shall not disclose any applicable passwords or access codes to the Course, except as otherwise permitted herein.
2.4 LICENSEE shall not allow any unauthorized Third Party to implement, access, modify, use or operate the Course.
2.5 LICENSEE shall not download substantial portions of Course for any purpose, including local storage or use. LICENSEE shall not access, download, retain, or reproduce substantial portions of Course, whether by automated polling systems, manual execution of sequential queries, or any other means.
2.6 LICENSEE acknowledges that Course is for informational and educational purposes only and is not a substitute for the professional judgement of the LICENSEE and no medical or patient-healthcare relationship is established by this Agreement. LICENSEE shall not access Course or provide information from Course for any patient treatment. No confidential client or patient protected health information is used or exchanged in the Course. LICENSEE acknowledges the Course is intended for healthcare professionals.
2.7 The parties acknowledge that academic achievement varies among students, and includes such non-academic factors as motivation, preparation, and study habits. LICENSEE acknowledges and agrees that its Users use of the Course provided herein shall not guarantee that that any or all of its Users will achieve the learning goals of LICENSEE.
2.8 LICENSEE acknowledges and agrees that UTRF is not obligated to provide any technical assistance or support to the LICENSEE in the exercise of the Agreement. In the event LICENSEE requires technical assistance with respect to the activities conducted by LICENSEE pursuant to this Agreement, obtaining such technical assistance (whether from the Contributor or otherwise) shall be LICENSEE’s responsibility and at LICENSEE’s expense.
2.9 Nothing herein shall be construed to require UTRF or UT to develop any new versions of the Course.
2.10 LICENSEE shall not: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the Course, in whole or in part; (ii) create any derivative work based or incorporating any portion of the Course; (iii) download, republish, publicly display, reproduce, copy, post, transmit, or in any way distribute any material from the Course, unless such activities are in direct furtherance of LICENSEE’s permitted use of the Course and does not in any way violate this Agreement; (iv) provide a service bureau by which the Couse can be accessed by Third Parties or by which information produced pursuant to LICENSEE’s use of the Course is sold or given to Third Parties; (vii) sublicense, assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason without the express prior written consent of UTRF; or (viii) permit more than the total number of Users to either access or use the Course.
- Payment
3.1 Upon LICENSEE’s agreement to the terms of this Agreement, LICENSEE shall pay to UTRF Zero Dollars ($0) (“License Trial Fee”).
- Delivery
4.1 Upon LICENSEE’s agreement to the terms of this Agreement, UTRF shall provide LICENSEE access to Course by providing to the LICENSEE a password and website URL for Course. The password/URL will be for a dedicated URL for User registration.
- Term
5.1 This Agreement shall expire 90 days from the Effective Date.
- Termination
6.1 LICENSEE may terminate this Agreement at any time upon written notice to UTRF. Termination of this Agreement shall result in termination of all rights and permissions granted to LICENSEE under this Agreement. Upon termination of this Agreement, LICENSEE shall destroy all passwords, copies and versions of Course in LICENSEE’s possession or control, and LICENSEE will provide certification of compliance of all obligations of termination.
6.2 UTRF may terminate if LICENSEE is in breach of this Agreement and fails to cure such breach, to UTRF’s satisfaction, within 30 days of a written notice. The provisions under which this Agreement may be terminated shall be in addition to any and all other legal remedies which either LICENSEE or UTRF may have for the enforcement of any and all terms hereof, and do not in any way limit any other legal remedy each party may have.
- Feedback
7.1 LICENSEE hereby authorizes UTRF to request Feedback on use of Course to assist in UTRF’s continuing development of Course (“Feedback”). The timeliness and scope of the Feedback shall be at the sole discretion of UTRF. LICENSEE agrees UTRF is permitted to use any LICENSEE-provided Feedback at no charge or royalty in making changes to Course.
- Disclaimers
8.1 Course has been developed as part of research conducted at UT and is made available “AS IS,” without obligation by UTRF or UT to provide accompanying services or support. The entire risk as to the quality and performance of Course is with LICENSEE. Should Course not work properly or be inappropriate for LICENSEE purposes, LICENSEE’s sole remedy is to discontinue its use immediately and terminate this Agreement. LICENSEE acknowledges that the Course is for informational and educational purposes only and is not a substitute for the professional judgment of LICENSEE.
8.2 COURSE IS PROVIDED “AS IS” AND UTRF AND UT, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS AND IMPLIED, AND MAKES NO REPRESENTATIONS CONCERNING THE COURSE AND ANYTHING ELSE DELIVERED OR OTHERWISE PROVIDED TO LICENSEE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ACADEMIC IMPROVEMENT OR ACHIEVEMENT OF THE USERS.
8.3 EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN NO EVENT SHALL UTRF OR UT, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGES ARISING IN CONNECTION WITH THE ACTIVITIES CONTEMPLATED IN THIS AGREEMENT, AND IN NO EVENT SHALL UTRF OR UT, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITY, INVENTORY LOSS, COURSE STOPPAGE, LOST DATA OR ANY OTHER RELIANCE OR EXPECTANCY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OF ANY KIND INCURRED BY IN CONNECTION WITH THIS AGREEMENT. LICENSEE HEREBY RELEASES UTRF AND UT, AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES FROM ALL CLAIMS RELATING TO THE FOREGOING.
8.4 EACH PARTY’S LIABILITY FOR ANY CLAIM BY THE OTHER FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE LICENSE TRIAL FEE AMOUNT, IF ANY, THAT LICENSEE HAS PAID TO UTRF. LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSE TRIAL FEE REFLECT THE ALLOCATION OF RISKS EXPRESSED DESCRIBED IN THIS SECTION 8 (INCLUDING ITS SUBSECTIONS) and LICENSEE EXPRESSLY AGREES TO SUCH ALLOCATION OF RISKS.
8.5 The Course is for informational and educational purposes only. The information contained therein, in whatever form, does not constitute medical advice, is not intended to be a substitute for medical advice and should not be used as a substitute for medical care and treatment. No physician-patient relationship is created by the reading or use of the COURSE and the LICENSEE accepts sole responsibility for the use of any information that is contained within, and agrees to use such information at LICENSEE’s own risk. No diagnosis or treatment actions should be taken by the LICENSEE based on the contents of this Course.
8.6 Access to the Course may be interrupted for maintenance and upgrades to the application or the server. When possible, the interruptions will be announced in advance. Licensee understands and agrees that access to the Course and network to which it is attached is subject to interruptions due to factors beyond the control of UTRF and that, despite UTRF’s best efforts, the server and network to which the Course is attached may not be error free or free from viruses, malicious code or other harmful components.
- Indemnification
9.1 LICENSEE shall defend, indemnify and hold harmless UTRF and UT, and their officers, directors, trustees, faculty, staff, employees, students, agents and their respective successors or assignees against any and all claims, suits, losses, damages, costs, fees, and expenses by LICENSEE or any Third Party resulting from LICENSEE’s possession and/or use of Course, including but not limited to any damages, losses, or liabilities whatsoever with respect to death or injury to any person and damage to any property. This indemnification clause shall survive the termination or expiration of this Agreement.
- General
10.1 This Agreement is made in Knoxville, Tennessee, and performance hereunder shall be governed and construed in accordance with the laws of the U.S. and of the State of Tennessee, without giving effect to provisions thereof regarding conflict of laws. Each party hereto hereby submits to the exclusive jurisdiction of the United States District Court for the Eastern District of Tennessee and of any Tennessee state court sitting in Knoxville, Tennessee for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. Each party hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
10.2 Notices hereunder shall be in writing and delivered by hand, air courier express or certified mail with return receipt requested to the address provided by LICENSEE when ordering the Course, and shall be deemed delivered 3 days after mailing. Notices to UTRF shall be sent to the following address: Attn: Vice President, 600 Henley Street, Conference Center, Suite 211, Knoxville, Tennessee 37996.
10.3. This Agreement sets forth the entire agreement of the parties, and supersedes, merges and voids any and all prior agreements related to its subject matter. Amendments to this Agreement must be in writing, reference this Agreement, and signed by duly authorized representatives of UTRF and LICENSEE. Headings are provided for convenience only and shall not be referenced when interpreting the provisions of this Agreement.
10.4 If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired thereby.
10.5 This Agreement and the rights and benefits conferred upon LICENSEE hereunder may not be assigned or otherwise transferred by LICENSEE without the prior written consent of UTRF. This Agreement may be assigned by UTRF.
10.6 Failure of UTRF to perform or delay in the performance of UTRF’s obligations under this Agreement due to any cause or event not reasonably within UTRF’s control, including but not limited to casualty, labor disputes, failure of equipment, compliance with government authority or Act of God, shall not constitute a breach of this Agreement, and UTRF’s performance shall be excused during such delay.
10.7 This Agreement embodies the entire understanding of the parties and supersedes all previous communications, representations, or understandings, either oral or written, between the parties relating to the subject matter hereof.
10.8 LICENSEE shall not use the names, logos, or trademarks of UTRF or UT or any of their respective employees, staff members, directors, trustees, or any Contributor, or any adaptation thereof, in any advertising, promotional or sales literature without prior written consent obtained from UTRF or UT, in each case, except that LICENSEE may state that it is licensed by UTRF to use the Course.
10.9 Each party will be and act as an independent contractor to the other party in the performance of its obligations pursuant to this Agreement. Neither party will be entitled to, or will attempt to, create or assume any obligation, express or implied, on behalf of the other party. This Agreement will not be interpreted or construed to create an association, joint venture, partnership, or franchise between the parties or to impose any partnership obligation or similar liability arising there from upon either party.
10.10 Licensee hereby gives written assurance (a) that it will comply with all United States export control laws and regulations, including without limitation all Export Administration Regulations of the United States Department of Commerce and (b) that it bears sole responsibility for its own violation of such laws and regulations.