This Customer Agreement ("Agreement") is made effective, as of the date set forth below ("Effective Date"),
between having its principal place of business at ("Customer") and NOVARAD CORPORATION, a Utah corporation, having its principal place of business at 752 E. 1180 S., Ste. 200, American Fork, UT 84003 ("Novarad"). Customer and Novarad will collectively be referred to as the (“Parties”) in this Agreement.
1. System(s). The System or Systems acquired by Customer hereunder are described on the original Sales Order/Invoice. All Systems include the software subscription provided by Novarad. Upon approval by Novarad, additional Systems may be acquired by Customer under the terms and conditions of a separate Agreement. Customer shall not have any rights to purchase or acquire additional Systems for resale or distribution to customers (Downstream Users) not party to this Agreement.
2. License Grant. Novarad hereby grants to Customer a nonexclusive, nontransferable, license to use the software designated as "Novarad Software" as described on the Sales Order/Invoice, only in connection with Customer's use of the System(s) acquired hereunder and only during the term of this Agreement. Novarad shall at all times remain the sole owner of all right, title and interest in and to the Novarad Software and Customer shall not obtain any right, title or interest in the Novarad Software under this Agreement, except to the extent of use specifically granted by the license set forth in this Section. Customer shall not have any rights to sell, rent, sublicense, sublease or otherwise distribute the Novarad Software or to create derivative works of the Novarad Software. The foregoing license shall terminate immediately upon the termination of this Agreement. Novarad and/or Customer shall promptly remove all copies of the Novarad Software from all Novarad System Hardware, if hardware is not required to be returned to Novarad.
3. Hardware. Novarad hereby assigns to Customer, for the term of the Agreement, the hardware set forth on the Sales Order/Invoice (the "System Hardware").
3.1.) Warranty and Obsolescence
3.1.1.) Router – Ninety (90) day replacement warranty
3.1.2.) Printer – Two (2) year manufacturer warranty
3.1.3.) Scanner – Ninety (90) day replacement warranty
3.1.4.) CryptoChart has NO hardware obsolescence replacement included.
4. Terms and Conditions:
4.1.) The initial system will be included at no cost to Customer during the trial period.
4.2.) Each additional kit (box, printer, scanner) will be billed to Customer at current Novarad pricing.
4.3.) If the router ceases to function after warranty period, Customer will contact Novarad Support. If Novarad determines the router is inoperative, Customer will purchase the replacement router. Shipping Fees will be added to the cost.
4.4.) If the printer ceases to function, Customer will contact Novarad Support. If Novarad determines the printer is inoperative, Customer will purchase the replacement printer. Shipping Fees will be added to the cost.
4.5.) If the router or printer is dropped, all warranties are void. Customer will purchase the replacement equipment. Shipping fees will be added to the cost.
4.6.) CryptoChart is designed to be secure and deter brute force attacks. It is Customer’s responsibility to maintain the system on a secure network. If CryptoChart is exposed to a firewall breach at Customer’s facility, Novarad is indemnified from any damage to the site or patients that may be incurred.
4.7.) CryptoChart is currently supported by Apple’s IOS. If for any reason Apple changes the IOS that allows this to be supported, Customer agrees to hold Novarad harmless while a solution is being created.
4.8.) CryptoChart is currently supported by Android’s OS. If for any reason Android changes the Android OS that allows this to be supported, Customer agrees to hold Novarad harmless while a solution is being created.
4.9.) Customer outages related to Novarad Software are limited to a maximum of $10 per day for damages.
4.10.) Cancelled trial systems requires the equipment must be returned to Novarad in good condition within thirty (30) days or the site will be billed $1000 or current Novarad pricing.
5. Data Back-up. All data backed-up by Novarad shall be kept and only accessible to authorized personnel. In the event the Customer’s on-site archive needs to be restored from the back-up facility, there will be a reasonable charge for doing so. Data will be destroyed after contract termination according to the information listed in termination provisions of this Agreement.
6. Support and Maintenance.
6.1.) Novarad shall maintain a staff of trained personnel to answer telephone calls from Customer concerning the System(s) during the term of this Agreement. Such support shall be available during normal business hours weekdays from 8:00am to 5:00pm.
6.2.) Novarad support personnel shall at all times have the ability to remotely access the System(s) via a high-speed Internet link using Novarad remote control of choice (currently Bomgar Remote Support). Customer is not permitted to limit Novarad’s access to any of the hardware under any circumstances. To do so invalidates any warranty. Customer is solely responsible for the installation and all costs associated with its Internet connection and service provider.
6.3.) If Customer’s Novarad System issue is a result of Customer’s network, Customer’s action, or activities of third party supplier, Novarad fees may apply.
7. Exclusions. The System(s) and services provided to Customer by Novarad hereunder, and the System Fees paid therefore, specifically do not include:
7.1.) the cost of products, items, parts, accessories, or components, which are expendable in normal use or operation of the System(s), or those of limited life, unless specifically covered by express agreement, extended to the Customer by Novarad in writing; or
7.2.) products or accessories not supplied by Novarad, except as specifically extended by Novarad in writing.
8. System Fees. Customer shall be billed by Novarad after the initial trial. Automatic Payments to be set up by Customer with Novarad prior to installation and to begin after the thirty (30) day trial. The first prorated Monthly Fee shall be invoiced at the end of the month following the Trial End date. Thereafter, the Monthly Fee shall be billed on the last day of each calendar month during the term of this Agreement. Monthly Fees for partial first and last months shall be pro-rated based on a thirty (30) day month.
8.1.) If automatic payment is not received for any reason, system will be suspended after two (2) days. Payment in full must be received and processed to resume license.
8.2.) In addition, Customer shall be responsible for the following fees, charges and taxes, where applicable (collectively and together with all fees herein this Agreement, the “Fee” or “Fees”):
8.2.1.) Delivery charges; and
8.2.2.) Applicable sales, use, personal property, excise or similar taxes related to Customer’s use of the Service or the Equipment used in connection therewith.
8.3.) Novarad reserves the right to adjust System fees with a reasonable inflationary increase. Novarad will periodically review and assess Customer’s Novarad System and growth to determine if additional charges apply.
9. Risk of Loss; Insurance. Risk of loss or damage to the System(s) shall pass to Customer upon delivery of the System(s) to Customer and shall remain with Customer.
10. Initial and Renewal Terms.
10.1.) Initial Term. The term of Customer’s right and license to use the System shall commence upon the Effective Date and shall extend for one (1) year thereafter. Effective Date of Agreement is defined as the date the licenses are authorized by Novarad.
10.2.) Renewal of Terms. The term of this Customer License and Support Agreement shall automatically be renewed for additional terms of one (1) year each unless either Party gives written notice to the other at least thirty (30) days prior to the end of the then-current term of its intention to not renew for an additional term.
11.1.) Early Termination. Notwithstanding anything contained herein to the contrary, this Agreement may be terminated prior to the expiration of its term as follows:
11.1.1.) Termination for Breach Either Party may terminate this agreement due to a material breach by the other Party after first providing written thirty (30) days’ prior notice to the other Party stating the cause of such termination; provided that if the breaching Party cures such breach within said thirty (30) day period this Agreement shall not be terminated.
11.1.2.) Termination for Non-Payment. Novarad may terminate this Agreement after providing ten (10) days written prior notice to Customer for non-payment of System Fees. If Customer cures non-payment before ten (10) days, this Agreement shall not be terminated.
11.1.3.) Termination without Cause. Customer may terminate the agreement any time without cause by providing written ninety (90) days’ notice, paying through the end of the ninety (90) days and paying the total balance of the remaining monthly payments.
11.2.) Return of System(s). Upon any termination or expiration of this Agreement, Customer shall cease using, executing or displaying the Novarad Software. Novarad shall be, and hereby is, irrevocably and unconditionally authorized to remotely access and disable the Novarad System immediately following the termination of this Agreement.
11.3.) Effect of Termination. In the event this Agreement is terminated for any reason, including non-payment of Monthly Subscription Fee, Customer’s rights to possess and/or use the Novarad System shall terminate immediately.
11.4.) Destroying of Protected Health Information. (“PHI”). PHI is stored electronically on Novarad’s servers. Upon any termination or expiration of this Agreement, Novarad will destroy Customer’s stored PHI three (3) months after contract termination date.
12. Limited Warranty; Disclaimer. Novarad warrants that the Novarad Software will perform substantially in accordance with its functional specifications, as defined by Novarad, in connection with that version of the Software and that any media on which the Novarad Software is provided will be free of material defects for the period of the contract. Novarad shall, and hereby does assign, transfer and pass-through to Customer all applicable manufacturer’s warranties covering the Hardware, to the extent assignable. This guarantee only refers to the Novarad System and shall NOT be in force when there is a problem with the modality or network or Internet connection or if there is a Customer error in using the System. Except as otherwise expressly provided elsewhere in this Agreement, Customer accepts the System Hardware from Novarad “AS IS, WHERE IS.” Except as otherwise expressly provided elsewhere in this Agreement, NOVARAD MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, THAT THE NOVARAD SOFTWARE, THE THIRD-PARTY SOFTWARE OR THEIR OPERATION WILL BE FREE FROM BUGS, INTERRUPTIONS, ERRORS OR OTHER PROGRAM LIMITATIONS, OR ISSUES REGARDING INFRINGEMENT, TITLE OR THE LIKE. NO REPRESENTATIONS OR WARRANTIES INCLUDING WITHOUT LIMITATION, (i) ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY, OPERATION, OR CONDITION OF THE SYSTEM, (ii) THE MERCHANTABILITY OR FITNESS OF THE SYSTEM FOR A PARTICULAR PURPOSE, (iii) THE COMPATIBILITY OR INTEROPERABILITY OF THE SYSTEM WITH OTHER PERSONAL PROPERTY, NON-NOVARAD SOFTWARE OR ACCESSORIES WHICH CUSTOMER USES WITH OR CONNECTS TO THE NOVARAD SYSTEM.
13. Limitation of Liability. IN NO EVENT SHALL NOVARAD BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER INDIRECT OR CONSEQUENTIAL LOSS) WHICH MAY ARISE UNDER THIS AGREEMENT, OR FROM USE OF THE SYSTEM(S), EVEN IF NOVARAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER AGREES THAT NOVARAD’S SOLE LIABILITY, IF ANY, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF ANY BREACH OR ALLEGED BREACH OF THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY OR WHETHER GROUNDED IN CONTRACT, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, TORT OR WARRANTY, SHALL NOT EXCEED THE SYSTEM FEES PAID BY CUSTOMER FOR THE THEN CURRENT MONTH. IN NO EVENT SHALL NOVARAD BE LIABLE FOR MEDICAL MISDIAGNOSIS MADE WHILE USING THE SYSTEM.
14. Intellectual Property Rights.
14.1.) Customer unconditionally and absolutely stipulates and agrees that Novarad is the sole owner of all rights, titles and interests in and to all Intellectual Property Rights related to the Novarad Software or otherwise related to Novarad Systems (or any component thereof) or any Improvements to Novarad Systems (or any component thereof). Unless and except to the extent expressly provided in this Agreement, this Agreement shall not be deemed, construed or interpreted as a grant, transfer or conveyance to Customer or any third party, expressly or by inference, of any right, title or interest in, or license or right to use any, all, or any portion of its Intellectual Property Rights related to Novarad Systems or any Improvements thereon. 14.2.) If and to the extent that Customer makes, creates, authors, reduces to practice or otherwise develops, either alone or jointly with Novarad or one or more third parties, any such Improvements, Customer covenants and agrees that:
14.2.1.) any such Improvements shall be, and hereby are, owned solely, irrevocably and exclusively throughout the world by Novarad.
14.2.2.) any such Improvements, to the extent consisting of works of authorship or other copyrightable subject matter, shall be, and hereby are, "works for hire" belonging solely, irrevocably and exclusively throughout the world to Novarad.
15. Software Restrictions. Customer shall not:
15.1.) Sell, transfer, assign, lease, sublease, loan, rent, offer on a "service bureau" basis, sublicense, copy, reproduce, duplicate or distribute the Novarad Software or Pre-Release Software or any rights under the Novarad Software Licenses granted hereunder;
15.2.) Decompile, decipher, disassemble, reverse engineer or otherwise discover the source code of all or any portion of the Novarad Software or Pre-Release Software.
16. Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing. Notices shall be deemed to have been duly given on the date of service if:
16.1.) served personally on the Party to whom notice is to be given or,
16.2.) sent by electronic mail or,
16.3.) on the third day after mailing, if mailed to the Party to whom notice is to be given, by first-class, registered, certified or overnight mail, postage prepaid, and properly addressed to the address first set forth above.
16.4.) Either Party should notify the other Party in writing of a change of address.
17. Entire Agreement. This Agreement contains the entire understanding of the Parties relating to the subject matter hereof. It may not be changed orally, but only by an agreement in writing signed by the Parties. Statements made by any person, including representatives of Novarad, which are inconsistent or in conflict with the terms of the Novarad Customer Agreement, shall not be binding upon Novarad.
18. Assignment. Neither this Agreement nor any rights or obligations under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily, by operation of law (including by merger or consolidation) or change in control of a majority or more of Customer’s equity securities, without prior written consent of Novarad, which consent may be withheld, delayed or conditioned in the sole discretion of Novarad. This Agreement and the rights and obligations of Novarad under this Agreement may be assigned without the consent of Customer, by Novarad to (i) any subsidiary or commonly controlled affiliate of Novarad, (ii) an entity which survives a merger to which Novarad is a party, or (iii) an entity which acquires all or substantially all of the assets of Novarad or substantially all of Novarad's interests in the product suite which contains the System. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective permitted successors and assignees following submission and approval of appropriate documentation submitted to Novarad prior to finalization of any Assignment or transfer.
19. Section Headings. The section headings herein have been inserted for convenience only and shall not be deemed to limit or otherwise effect the construction of any provision herein.
20. Severability. In the event any section, paragraph, or portion of this Agreement shall be or be deemed to be by any court having lawful jurisdiction of the subject matter of this Agreement void, voidable, or invalid for any reason, this Agreement shall be otherwise valid and enforceable as if said void, voidable, or invalid article, section, paragraph, or portion of this Agreement had not been a part hereof in the first instance. The English language version of this Agreement shall be the governing version used when interpreting or construing this Agreement.
21. HIPAA Compliance: As required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Novarad agrees to execute a Novarad Business Associate Agreement with Customer in order to assure confidentiality of patient information..
22. Applicable Law; Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of Utah and the laws of the United States, without regard to the application of conflicts of law principles. The exclusive venue and jurisdiction for disputes arising out of or relating to this Agreement shall be in the state or federal courts located in Salt Lake County, Utah. Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any right to trial by jury and any claims, defenses, or motions, whether substantive or procedural, based upon concepts of lack of personal jurisdiction, forum non conveniens or the like.
23. Attorneys’ Fees. In the event an action or suit is brought by any Party hereto to enforce the terms of this Agreement, the prevailing Party shall be entitled to the payment of reasonable attorneys’ fees and costs, together with such other legal costs as may be authorized by law, including any of the foregoing costs incurred in connection with an appeal.
24. Confidentiality. Customer shall keep confidential the Novarad product from other vendors of PACS or similar products. For purposes of this Agreement, "Confidential Information" shall include all information or material that has or could have commercial value or other utility in the business in which Novarad is engaged. Customers obligations under this Agreement do not extend to information that is: (i) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Customer; (ii) learned by the Customer through legitimate means other than from Novarad or Novarad representatives; or (iii) is disclosed by Customer with Novarad’s written approval.
25. Press Release. Customer gives Novarad the right to submit press releases to local and industry news agencies announcing the choice of the Customer to use Novarad products. Also included in the release may be the bed size of the Customer facility if applicable and its location.
26. Authority to Bind. Each person executing this Agreement hereby warrants that they have full and legal authority to execute this Agreement for and on behalf of the respective Parties, and no further approval or consent of any other person is necessary in connection therewith. Further, each person executing this Agreement covenants and represents that the execution of this Agreement is not in contravention of and shall not result in a breach of any other agreement, contract, instrument, order, judgment or decree to which such person is a party.
THIS AGREEMENT is hereby made, executed and delivered by the undersigned Parties as of the Effective Date set forth below
BY THIS DIGITAL SIGNATURE BELOW, CUSTOMER ACKNOWLEDGES
SIGNATURE AND ACCEPTANCE OF THIS LEGALLY BINDING DOCUMENT