Please note: We are now Scene Health but our legal name has not changed; we are still emocha Mobile Health Inc., a Delaware corporation.
These emocha Mobile Health Inc. (emocha) Standard Legal Terms and License govern access and use of emocha software including emocha mobile and web applications.
emocha is the owner and/or developer of certain software and related user documentation and manuals (the “Software”). Licensee and emocha have entered into an Agreement for Licensee’s use of the Software (the “Agreement”) pursuant to the specific terms set forth on the emocha License Agreement executed by emocha and Licensee.
emocha products include a license to selected emocha software modules, the current description of which may be found at www.scene.health.
A. General. Subject to Licensee’s agreement to the terms set forth in the emocha License Agreement and compliance with the emocha Standard Legal Terms and License set forth herein, emocha hereby grants, and Licensee accepts a limited, personal, revocable, non-transferable, non-exclusive license during the term of the Agreement to use the emocha Software and Documentation for internal business purposes and to permit users authorized by Licensee (“Users”) to use the Software for internal business purposes, and for patients and participants authorized by Licensee (“Participants”) to use the software to report data. Licensee may use the Software for the functions for which it was designed, so long as Licensee does not allow any other third party the right to access or use the software, except as permitted by this Agreement, and does not commercialize or otherwise make any portion of the Software available to others. The Software will be made available to Licensee under the Agreement in object code only; no source code is provided to Licensee under the Agreement. No rights to sublicense or market the Software or Documentation are granted.
B. License Term. The license term begins on the Effective Date and will continue for the term set forth on the emocha License Agreement.
C. Fees. Licensee shall pay emocha the fees set forth in the emocha License Agreement. emocha will not require Participants to pay emocha directly any charges or fees for use of the Service.
A. Remote Software. Some components of the Software may be housed and hosted on a server at a remote location selected by emocha (such components, the “Remote Software”). Licensee will be able to access and use the Remote Software and store data remotely in connection with the use of the Software. Licensee shall not take any action that jeopardizes the availability, functionality, or integrity of the Software or the server system on which it resides. Licensee shall ensure that only it’s authorized employees, customers, patients, and vendors are allowed to and can use the Software.
B. Restrictions. Licensee may not, and will not permit or induce any third party (including, without limitation, any User) to: (i) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Software; (ii) alter, modify, translate, adapt in any way, or prepare any derivative work based upon the Software; (iii) rent, lease, network, loan, pledge, encumber, sublicense, sell, distribute, disclose, assign or otherwise transfer the Software or any copy thereof; (iv) use the Software in commercial timesharing, rental or other sharing arrangements; or (v) remove any proprietary notices from the Software or any related documentation or other materials furnished or made available hereunder. Any modification or enhancement made in violation of the foregoing shall be deemed to be owned by emocha or emocha’s licensor and shall be required to be assigned to emocha or emocha’s licensor, which shall be in addition to all other remedies that emocha or emocha’s licensor will be entitled to pursue. In addition, Licensee agrees to comply with all applicable local, state, national, and international laws, rules and regulations applicable to Licensee’s use of the Software. Licensee shall ensure that its employees abide by all of emocha’s policies pertaining to the Software, as they have been posted on the Site and as may be updated from time to time, with or without prior notice. Licensee shall ensure that its use of the Software does not violate any confidentiality, privacy or other proprietary right of any party, and that it does not contain offensive, harassing, or defamatory content. It is the duty and responsibility of Licensee alone to ensure that all Licensee’s use of the Software complies with all privacy and other laws, including, without limitation, the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”, as amended), and any comparable foreign law.
C. Upgrades. All upgrades, updates, bug fixes, improvements, corrections, enhancements, and major and minor releases to the emocha Products will be delivered and installed, if applicable, at no additional cost to Licensee. emocha will provide sufficient testing instructions and description of the new functionality or features of all Upgrades to ensure successful implementation. Any Upgrades shall be deemed to be emocha Products for purposes of this Agreement and are hereby automatically licensed to Licensee subject to the terms and conditions of this Agreement.
D. Delivery and Acceptance of Standard emocha Software. Following execution of this Agreement, Licensee shall complete the emocha Configuration Form. Within 10 days after Licensee submits the completed Configuration Form, and any other information emocha may require, emocha shall enable Licensee to download or access the Software from www.scene.health or shall otherwise make the Software available to Licensee. The Software (and any future Software updates or upgrades that emocha may make available to Licensee from time to time and that are included in the defined term “Software”) will be deemed accepted upon emocha’s making the Software (or the relevant update or upgrade) available to Licensee. emocha shall provide such reasonable implementation services and support for the Software as the parties have mutually agreed to.
E. Delivery and Acceptance of Modified Version of emocha Software. Following execution of this Agreement, Licensee may submit a set of specifications and such other information as emocha may require to implement a Customized emocha Application (the “Specifications”). emocha shall review the Specifications and the parties shall come to a mutual agreement on the final Specifications, including any modifications agreed to by the parties. Within 90 days after Licensee submits the Specifications (with such time extensions as the parties may mutually agree to), emocha shall: (a) write and compile a modified version of the Software that materially conforms to the mutually agreed-upon Specifications, and (b) enable Licensee to download or access the modified Software from www.scene.health or shall otherwise make the Software available to Licensee. The Software (and any future Software updates or upgrades that emocha may make available to Licensee from time to time and that are included in the defined term “Software”) will be deemed accepted upon emocha’s making the Software (or the relevant update or upgrade) available to Licensee. emocha shall provide such reasonable implementation services and support for the Software as the parties have mutually agreed to.
emocha or its licensors retain all right, title and interest in and to the Software and related documentation and materials, including, without limitation, all patent, copyright, trademark, and trade secret rights, embodied in or otherwise applicable to the Software, whether such rights are registered or unregistered, and wherever in the world those rights may exist. Licensee shall not commit any act or omission, or permit or induce any third party to commit any act or omission inconsistent with emocha’s or its licensors’ rights, title and interest in and to the Software and the intellectual property rights embodied therein or applicable thereto. All materials embodied in or constituting the Software, including, without limitation, graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel” and arrangement of the Software and its Content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Software (“emocha Marks”), are all owned by emocha or its licensors. Regardless of inventorship, emocha shall exclusively own all inventions, discoveries, data, work product, results and information that are conceived, generated, discovered or made during the course of performing activities under the Agreement and that relate to the Software (collectively, “Software Inventions”), including any Patent Rights claiming such Software Inventions (the “Software Invention Patent Rights”). Licensee shall assign and hereby assigns to emocha, at no cost (or, where required by applicable law, for nominal consideration of One U.S. Dollar ($1.00)), all of its right, title and interest in the Software Inventions, the Software Invention Patent Rights and any other intellectual property rights relating thereto, and shall cause its affiliates and sublicensees to do the same. Licensee shall execute and deliver, or cause to be executed and delivered, such instruments, and shall do and cause to be done such acts and things, including the filing of such assignments, agreements and other documents, as may be necessary, or as emocha may reasonably request, to give full effect to these terms. The Agreement does not grant Licensee any license to use the emocha Marks. Title to the Software shall not pass from emocha to Licensee, and the Software and all copies thereof shall at all times remain the sole and exclusive property of emocha. There are no implied rights or licenses in the Agreement. All rights are expressly reserved by emocha.
A. Third Party Software. emocha may in its sole discretion make available third party software (“Third Party Software”) embedded in, or otherwise provided with, the Software. Third Party Software is expressly excluded from the defined term “Software” as used throughout the Agreement. Licensee’s use of the Third Party Software is subject to the applicable third party license terms which can be viewed at each third party’s website, and such Third Party Software is not licensed to Licensee under the terms of the Agreement. If Licensee does not agree to abide by the applicable license terms for the Third Party Software, then Licensee may not access or use the Software or the Third Party Software.
B. Inspection. emocha shall have the right to review Licensee’s use of the Software to verify Licensee’s compliance with the terms of the Agreement.
C. Use of Data. By entering into this Agreement and using the emocha software, you consent to emocha’s use of the data obtained from your use of emocha software in accordance with this Agreement and to use the data to improve emocha software applications. emocha may collect, store and use data for research and other purposes, including but not limited to compilation, comparison, and analysis.
A. General. If a party (the “Receiving Party”) obtains access to Confidential Information (as defined in below) of the other party (the “Disclosing Party”) in connection with the negotiation or performance of the Agreement, the Receiving Party agrees: (a) not to directly or indirectly disclose the Confidential Information to any third party except as contemplated by the Agreement; and (b) to use the Confidential Information only to perform its obligations and exercise its rights under the Agreement. The Receiving Party shall use at least the same degree of care to protect the Confidential Information of the Disclosing Party from unauthorized disclosure or access that the Receiving Party uses to protect its own Confidential Information, but not less than reasonable care. The Receiving Party shall immediately notify the Disclosing Party of any actual or suspected loss or unauthorized use, disclosure of or access to the Disclosing Party’s Confidential Information of which it becomes aware and take all steps reasonably requested by the Disclosing Party to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.
B. Confidential Information. “Confidential Information” shall mean: (a) all information about or belonging to the Disclosing Party or a third party that is disclosed or otherwise becomes known to the Receiving Party in connection with the Agreement and that is not a matter of public knowledge; (b) all trade secrets, customer information and intellectual property owned or licensed by the Disclosing Party; (c) all personal information about individuals contained in the Disclosing Party’s records (including names, addresses, social security numbers, and credit card and other financial information); and (d) the Software. The terms of the Agreement are the Confidential Information of both parties, which may be disclosed by a party, only to the extent reasonably necessary, to its legal and financial advisers and to subcontractors or other third parties that will be providing services in connection with the Agreement and that are under an obligation to protect the confidentiality of the Confidential Information.
C. Exclusions. Any particular information of the Disclosing Party shall not be considered Confidential Information if it: (a) was previously rightfully known by the Receiving Party free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or (d) is subject to disclosure pursuant to a subpoena, judicial or governmental requirement, or order, provided that the Receiving Party has given the Disclosing Party sufficient prior notice of such subpoena, requirement, or order, to permit the Disclosing Party a reasonable opportunity to object to the subpoena, requirement, or order and to allow the Disclosing Party the opportunity to seek a protective order or other appropriate remedy.
A. emocha’s Warranty. emocha warrants that the Software, as accessed by an authorized User from a fully functioning device that complies with the Software’s system requirements and such other instructions as emocha may promulgate from time to time, will substantially conform to the current Specifications mutually agreed upon by the parties. Licensee’s sole and exclusive remedy for the breach of this warranty shall be to notify emocha thereof and for emocha to apply reasonable efforts to correct confirmed warranty breaches. If emocha provides Remote Software to Licensee on emocha’s own servers, emocha agrees to use commercially reasonable methods to maintain the uptime of the Remote Software on its servers continuously, with the exception of periods of scheduled maintenance, of which emocha will give prior notice.B. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE: (I) THE SOFTWARE is PROVIDED TO LICENSEE ON AN “AS IS” BASIS, with any and all faults, and without any warranty of any kind; AND (II) emocha expressly disclaims all representations, warranties and conditions, whether express, implied, statutory or otherwise, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, SATISFACTORY QUALITY, and non-infringement of third party rights. EXCEPT AS EXPRESSLY SET FORTH ABOVE, emocha does not warrant that the SOFTWARE will meet LICENSEE’S or IT’S users’ requirements, or that the operation of the SOFTWARE will be uninterrupted or error-free, or that defects in the SOFTWARE will be corrected. Licensee expressly acknowledges and agrees that the use of the SOFTWARE and all results of such use is solely at Licensee’s and IT’S users’ own risk. no oral or written information or advice given by emocha or its authorized representatives shall create a warranty or in any way increase the scope of ANY warranty.
A. Indemnification by Licensee. Licensee hereby agrees to indemnify, defend and hold harmless emocha and its parents, affiliates, subsidiaries, licensors and third party service providers, and its and their respective officers, directors, employees, agents, representatives, and contractors (each, an “emocha Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by any emocha Party in connection with any actual or alleged claim arising out of, or relating to: (i) Licensee’s breach of the Agreement, or violation of any applicable law, rule or regulation and (ii) Licensee’s negligence, misrepresentation or willful misconduct.
B. Procedure. Counsel Licensee selects for the defense or settlement of a claim must be consented to by emocha prior to counsel’s being engaged to represent any emocha Party. Licensee and Licensee’s counsel will cooperate with emocha as fully as reasonably required, and provide such information as reasonably requested, by emocha in the defense or settlement of any claim. emocha reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by Licensee. Licensee shall not in any event consent to any judgment, settlement, attachment or lien, or any other act adverse to the interests of any emocha Party without the prior written consent of each relevant emocha Party.
A. Consequential Damages Waiver. UNDER NO CIRCUMSTANCES SHALL ANY EMOCHA PARTY BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF A EMOCHA PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.\
B. Limitation of Damages. WITHOUT LIMITING THE FOREGOING, In no event shall THE emocha PARTIES’ total CUMULATIVE liability to Licensee for all damages, losses and causes of action (whether in contract, tort, including negligence AND STRICT LIABILITY, or otherwise) exceed THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO emocha DURING the twelve (12) MONTH PERIOD IMMEDIATELY PRECEDING the EVENT GIVING RISE TO THE emocha PARTIES’ LIABILITY.
C. Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THE AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
D. Jurisdictional Issues. Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential or other damages, so the above limitations or exclusions may not apply to Licensee. In such event, the liability of the emocha Parties for such damages with respect to the Software will be limited to the greatest extent permitted by applicable law in such jurisdiction. E. Export. Licensee acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Software. Licensee agrees that it will not export or re-export the Software without the appropriate United States or foreign government licenses or permits.
A. General. Either party may terminate this Agreement immediately without further notice if the other party breaches its obligations under this Agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach from the non-breaching party.
B. Termination by Either Party. Either party may terminate this Agreement upon written notice to the other party: (i) upon the institution by the other party of insolvency, receivership or bankruptcy proceedings or any other act of bankruptcy or proceedings for the settlement of its debts; (ii) upon the institution of bankruptcy proceedings against the other party, which are not dismissed or otherwise resolved in its favor within ninety (90) days thereafter; (iii) upon the other party’s making a general assignment for the benefit of creditors, whether voluntary or involuntary, or calling a general meeting of the party’s creditors for purposes of compromising any of the party’s debts; or (iv) upon the other party’s dissolving, liquidating, winding up, or ceasing to conduct business in the ordinary course.
C. Termination by emocha. emocha may terminate this Agreement immediately, if Licensee willfully commits a material breach of Section 4B (Restrictions) or Article 5 (Proprietary Rights).
D. Effects of Termination. Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement in respect of the Software shall immediately terminate and Licensee shall cease to use Software and shall cease making the Software or any services available to Users; (ii) Licensee shall pay to emocha the full amount of any outstanding fees due hereunder; and (iii) within ten (10) calendar days of such termination, each party shall destroy or return all confidential and/or proprietary information of the other party in its possession, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement. Notwithstanding the foregoing, the following terms shall survive the termination of this Agreement, together with any other terms which by their nature are intended to survive such termination: relevant sections of the emocha License Agreement, Articles 4 (Software), 5 (Proprietary Rights), 6 (Confidentiality), 9 (Limitations of Liability), 11 (Governing Law & Jurisdiction), 13 (General Provisions) and Section 10D (Effects of Termination).
This Agreement will be construed and enforced in all respects in accordance with the laws of the state of Maryland, without reference to its choice of law rules. Licensee acknowledges that any breach by it of the provisions related to protection of the Software’s security, operation, or integrity, or to emocha’s or its emocha’s intellectual property rights, will cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, Licensee agrees that emocha will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief in a court of competent jurisdiction to enjoin any such breach, and that doing so shall not be deemed to be an election of remedies precluding emocha from pursuing damages or other remedies. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement, including, without limitation, application to the Software provided hereunder. Furthermore, this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (“UCITA”) or any other act derived from or related to UCITA.
All notices permitted or required under the Agreement shall be in writing and shall be delivered by personal delivery; e-mail, or certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by e-mail. Notices shall be sent to each party at their respective addresses as set forth on the emocha License Agreement, as updated by each party from time to time.
A. Assignment. Licensee shall not assign this Agreement or transfer any of its rights hereunder, or delegate the performance of any of its duties or obligations arising under this Agreement, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of emocha. Any purported assignment in violation of the preceding sentence is null and void.
B. Amendment. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties.
C. No Waiver. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted.
D. Severability. If any term of this Agreement is found invalid or unenforceable, that term will be enforced to the maximum extent permitted by law, and the remainder of this Agreement will remain in full force.
E. Independent Contractors. The parties are independent contractors, and nothing contained herein shall be construed as creating an agency, partnership or other form of joint enterprise between the parties.
F. Entire Agreement. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral.
G. Force Majeure. Except for Licensee’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.
H. Counterparts. Except as otherwise expressly provided in this Agreement, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise. This Agreement may be entered into in one or more counterparts, each of which will be deemed an original, and all of which taken together shall constitute one and the same instrument.
This Schedule sets forth the methodology between emocha Mobile Health Inc. (emocha) and Customer regarding the resolution of problems with an emocha Product.
emocha will provide support materials and training to customer service and support staff, to be provided on-line or in-person at emocha’s offices. emocha will provide up to two (2) training sessions (expected to be up to two (2) consecutive days) within the first two (2) years of the agreement, at no cost to Customer.
The Technology Fee(s) shall entitle the Customer to the maintenance services described in the Terms and Conditions as well as telephone, e-mail and web-based support as defined in this Schedule, for customers who purchase a Maintenance and Support Services Agreement.
This section describes when and how emocha will respond to requests for Problem Resolution. A knowledgeable emocha Support Engineer will respond to Customer’s request for problem resolution based on the case severity level, as described below:
- Case Severity 1 - Within one (1) hours after logging the issue and calling the hot-line, provided the issue is reported between 9:00AM ET and 6:00PM ET Monday through Friday excluding holidays.Issues reported outside the above hours will be responded to the following business day.
- Case Severity 2 - Within two (2) working days after logging the issue.
- Case Severity 3 - Within one (1) week after logging the issue.
3. PROBLEM RESOLUTION
Resolution will consist of a Work Around, an Interim Solution or a Permanent Solution. Problems that require an Interim Solution will be considered resolved when the test used to reproduce the problem demonstrates the corrected behavior. Note: emocha is not responsible for resolving problems arising from errors in equipment or software not provided by emocha or errors made by individuals who are not emocha employees or contractors. Resolution objectives and timeframes are described in the table below:
- Case Severity 1
Work Around: Provided within five (5) working days.
Interim Solution: Provided within two (2) working weeks if no Work Around is possible.
Permanent Solution: Included in next release.
- Case Severity 2
Work Around: Provided within two (2) weeks.
Interim Solution: Provided within one (1) calendar month.
Permanent Solution: Included in next release.
- Case Severity 3
Work Around: Next release.
Interim Solution: N/A
Permanent Solution: When deemed feasible by emocha.
4. SEVERITY DEFINITIONS
- Severity Level 1
A Severity 1 problem exists if any emocha Product or major function thereof is (i) inoperative, or (ii) Customer is experiencing terminable/intermittent problems that is having a significant impact on the Customer’s ability to use the emocha Product.
- Severity Level 2
A Severity 2 problem exists if functionality of the emocha Product is found to be defective or absent, or contains a problem that renders emocha Product difficult, but not impossible to use
- Severity Level 3
A Severity 3 problem exists if the Customer experiences a non-critical degradation of performance, or experiences minor problems that need correction in either emocha Product or the relevant emocha Product Documentation.
5. ESCALATION WITHIN emocha
Once emocha Support Engineer is notified as above, the emocha support organization will be notified and will start verifying the problem. Once the problem is verified by the emocha support organization, the request will be handed over to emocha product development staff if no resolution is immediately available.
The assigned emocha Support Engineer will track all open issues and track as needed internally within emocha and will according to the Resolution Objectives set forth above attempt to affect.