ACA Decision Support Tool USER LICENSE AGREEMENT
This ACA Decision Support Tool User License Agreement (the “Agreement”) is by and between SyncStream Solutions, LLC, a Louisiana corporation (the “Company”) and the purchaser of this tool (“User”), and is effective as of the day you make your purchase of the tool (the “Effective Date”) for a period of one year from that date.
WHEREAS, the Company makes available a web‐based application which assists users in analyzing the financial and other impacts of The Patient Protection and Affordable Care Act (the “Act”) on health coverage plans (“ACA Decision Support Tool”); and WHEREAS, User wishes to avail itself of ACA Decision Support Tool for its own use and/or to use in advising its clients (each, a “Client”),upon the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements made and contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. License. In consideration of payment by User of the applicable fees provided for under Section 4 hereof, the Company hereby grants User a limited, non‐exclusive, non‐transferable, non‐sub licensable license to use ACA Decision Support Tool on the ACA Decision Support Tool website, and other content and updates made thereto and to generate reports therefrom (“Reports”)solely for the purpose of assisting User with analyzing the impact of the Act for itself or its Clients. In no event may User grant any license to, sub license or permit any third party to use ACA Decision Support Tool or to generate Reports. The terms of this license will govern any updates made by the Company and its agents to ACA Decision Support Tool. User shall be responsible for furnishing any equipment and access to the internet in order to use ACA Decision Support Tool. The parties acknowledge and agree that the Company offers other services to its clients, including actuarial and consulting services in connection with reviewing Reports, and that any such services, if desired by User, will be the subject of a separate agreement between the parties.
3. Ownership. ACA Decision Support Tool is the property of the Company and is protected by copyright, trade secret and other intellectual property laws. ACA Decision Support Tool is licensed, not sold, to User for use only under the terms of this Agreement and the Company reserves all rights not expressly granted to User hereunder.
4. Fees. In consideration for the license granted pursuant to Section 1 hereof, the Company will charge the fees set forth on their website (www.acaconsultant.com). The Company may amend the Fee Schedule at any time upon thirty (30) days’ prior written notice to User. Invoices are due upon receipt, and become delinquent if not paid within thirty(30) days. In the event any balance is past due in excess of thirty (30)days, the Company reserves the right to terminate User’s access to ACA Decision Support Tool and/or immediately terminate the Agreement.
5. Termination. Either party may terminate this Agreement at any time upon fifteen (15) days’ prior written notice. In addition, the Company may terminate this Agreement immediately upona breach by User which breach remains uncured within five (5) days after written notice thereof is provided to User. In the event of termination of this Agreement for any reason, User agrees to promptly pay or cause to be paid all outstanding fees and expenses due to the Company.
6. Account Number and Passwords. User will be assigned a unique user account number and password to access ACA Decision Support Tool. User agrees not to share the account number or password assigned to it and will implement, maintain and enforce data systems, environmental and physical security standards and procedures to ensure the security and confidentiality of any such account number and password. User is responsible for all data received by the Company entered through and under User’s account number and/or password. User will immediately notify the Company of any loss, theft or unauthorized use of account number and/or password.
8. Confidentiality. During the term of this Agreement, a party may disclose to the other non‐public, confidential or proprietary information, including, but not limited to, software, technical processes, trade secrets, functional and technical specifications, designs, drawings, translations, analysis, research, processes, computer programs, beta versions, algorithms, methods, ideas, “know how,” and other technical information, materials, plans, projects, and other business information, and User Information) (“Confidential Information”); provided, however, that Confidential Information does not include any data or information which the recipient can demonstrate was (a)publicly known through no fault or breach of this Agreement by the recipient;(b) already known to the recipient prior to disclosure by the disclosing party;(c) lawfully disclosed by a third party; (d) independently developed without reference to the Confidential Information; or (e) disclosed pursuant to legal requirement or order. Each party will protect all Confidential Information of the other party with the same degree of care as it uses to avoid unauthorized use, disclosure, publication or dissemination of its own confidential information but in no event less than a reasonable degree of care. Neither party will disclose, release or otherwise make available to any third party Confidential Information of the other party except in order to perform its obligations pursuant to this Agreement. The confidentiality obligations of each party shall survive the termination of this Agreement for a period of five (5)years.
9. DISCLAIMERS. THE COMPANY HAS TAKEN DUECARE IN THE DEVELOPMENT AND MAINTENANCE OF ACA DECISION SUPPORT TOOL BASED UPONITS UNDERSTANDING OF THE REQUIREMENTS OF THE ACT. WHILE THE COMPANY WILLENDEAVOR TO UPDATE ACA DECISION SUPPORT TOOL TO ADDRESS ANY MODIFICATIONS TOTHE ACT AND TO MAKE IMPROVEMENTS OR CORRECT IDENTIFIED ERRORS, IT UNDERTAKES NOOBLIGATION TO DO SO. THE INFORMATION OBTAINED FROM ACA DECISION SUPPORT TOOLAND FROM THE REPORTS IS NOT INTENDED TO, NOR SHOULD IT, SUPERSEDE OR SUPPLANTTHE ADVICE AND INTERPRETATIONS OF USER’S OR ITS CLIENT’S ACTUARIES ANDADVISORS. OUTPUT GENERATED FROM ACA DECISION SUPPORT TOOL IS A MODEL OF THEPOTENTIAL OUTCOMES OUT OF A RANGE OF OUTCOMES BASED UPON DATA AND ASSUMPTIONSPROVIDED BY USER. THE ACTUAL OUTCOME MAY DIFFER SIGNIFICANTLY FROM THE RESULTSPRESENTED ON ACA DECISION SUPPORT TOOL OR IN ANY REPORT. A CHANGE IN DATA ORASSUMPTIONS IS LIKELY TO YIELD A DIFFERENT OUTCOME. USER ACKNOWLEDGES ANDAGREES THAT THE COMPANY HAS NO RESPONSIBILITY FOR USER’S USE OF ACA DECISIONSUPPORT TOOL AND THE REPORTS. USER ACKNOWLEDGES AND AGREES THAT THE COMPANYRETAINS THE RIGHT TO MODIFY, ALTER OR SUSPEND ACA DECISION SUPPORT TOOL AT ANYTIME.
10. WARRANTY. ACA Decision Support Tool AND REPORTS ARE PROVIDED TO USER “AS IS.” EXCEPT AS EXPRESSLYPROVIDED UNDERTHIS AGREEMENT, THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEESAND AGENTS: (A) DO NOT WARRANT THE ACCURACY, COMPLETENESS, COMPREHENSIVENESS ORCURRENCY OF ACA Decision Support Tool, THE CONTENT PROVIDED THEREON OR THEREPORTS; AND (B) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS,IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES ORCONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‐INFRINGEMENT. THE COMPANY MAKES NO WARRANTY ORGUARANTEE THAT ACA Decision Support Tool WILL BE UNINTERRUPTED, AVAILABLE ATANY TIME OR FROM A PARTICULAR LOCATION, SECURE OR ERROR‐FREE OR THAT ACA Decision Support Tool IS FREEOF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS.
11. Limitation of Liability; Indemnification. Neither the Company nor its affiliates, officers, directors, employees or agents shall be liable under any claim, demand or action arising out of or relating to User’s or its Client’s reliance upon the information provided by ACA Decision Support Tool or any Report. In no event will the Company, its affiliates, officers, directors, employees or agents have any liability for direct, special, incidental, consequential or punitive damages, including, without limitation, damages due to lost profits or business interruption, or other damages, even if they have been advised of the possibility of such loss or damages and whether or not such loss or damages is/are foreseeable and notwithstanding the failure of essential purpose of any limited remedy. Without limiting any of the foregoing terms, the Company’s liability in connection with this Agreement shall not exceed, as to any single claim, the applicable client record fee (as provided for on the company website) paid by User, and, in the aggregate, ten thousand dollars ($1,000). User agrees to indemnify and hold the Company, its affiliates, officers, directors, employees and agents harmless from any claims, lawsuits, proceedings, costs, attorneys’ fees, damages or other losses arising out of or relating to User’s use of ACA Decision Support Tool, the content provided thereon or the Reports.
12. Data Use. Data may be used anonymously by software administrators to create industry reports that will be disseminated in any fashion that they see fit. No personal identifying information will ever be used for any purposes.
13. General Terms.
13.1 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which counterparts taken together shall constitute one and the same instrument. The parties hereto agree that this Agreement and any related documents may be executed by facsimile or digital signature, which will have the same effect as an original signature.
13.2 Amendments and Waivers. Except as otherwise provided under Section 4, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and is signed, in the case of the amendment, by each party to this Agreement or, in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay in exercising any rights or privilege hereunder shall operate as a waiver thereof. No waiver of any right or privilege in respect to any occurrence or event on one occasion shall be deemed a waiver of such right or privilege in respect of such occurrence or event on any other occasion.
13.3 Severability. If any term or provision of this Agreement or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Further, if any provision of this Agreement becomes inconsistent with any present or future law or regulation of any entity having regulatory jurisdiction over it, that provision shall be superseded or amended to conform to such law and regulation, but the remainder of this Agreement shall remain in full force and effect.
13.4 Successors and Assigns. This Agreement is binding upon the successors and assigns of the parties hereto. Either party may assign this Agreement to an affiliate or a successor in interest upon written notice to the other party.
13.5 Construction. Headings in this Agreement are inserted solely for convenience of reference and will neither constitute a part of this Agreement nor affect its meaning, construction or intent. Whenever used in this Agreement, unless the context indicates otherwise, the singular will include the plural, the plural will include the singular, and the male gender will include the female gender. The words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation,” unless otherwise specified.
13.6 Notices. Whenever any notice may be or is required to be given hereunder, such notice shall be in writing and sent by United States first class mail, postage prepaid; or by overnight delivery service, where receipt is given, and addressed to such party at its last address appearing in the records of the party who is providing the notice; or by e‐mailing such person at his, her or its last known e‐mail address with a confirmation copy delivered in accordance with this provision.
13.7 Governing Law. This Agreement shall be governed by the laws of Delaware, without regard to principles of conflicts of law.
13.8 Entire Agreement. This Agreement contains the entire Agreement between the Company and User related to the subject matter hereof and supersede all prior agreements, proposals or representations, whether written or oral, between the parties relating to the subject matter of this Agreement. All schedules and exhibits hereto are intended to be and hereby are specifically made a part of this Agreement.
13.9 Third‐Party Beneficiaries. No provision of this Agreement shall confer upon any person, including but not limited to, Clients, other than the parties hereto any rights or remedies hereunder.