SHIFTWISE END USER LICENSE Agreement
The executable code version of the ShiftWise� VMS, IRP, STT and VeriStaff � software and related documentation, if any (the �SHIFTWISE PRODUCT(S)�) is made available to your legal business entity and any of its authorized users (�you�) under the terms of this SHIFTWISE End User License Agreement (the �AGREEMENT�). �BY ACCESSING AND/OR USING THE SHIFTWISE PRODUCT(S), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND ARE CONSENTING TO BE BOUND BY ITS TERMS.
This AGREEMENT will also govern any software upgrades provided by SHIFTWISE that replace and or supplement the original SHIFTWISE PRODUCT(S), unless such upgrades are accompanied by a separate license in which case the terms of that license will govern.
IF YOU DON�T AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SHIFTWISE PRODUCT(S) OR ANY PART OF THE SHIFTWISE PRODUCT(S).
1. LICENSE GRANT AND LIMITATIONS
(a) Grant. SHIFTWISE grants to you a non-transferable and non-exclusive right and license to access the SHIFTWISE PRODUCT(S) from our servers and use the executable code version of the SHIFTWISE PRODUCT(S). No right is given to you or any third party, to copy, modify, create a derivative work of, reverse engineer, reverse assemble, decompile or otherwise attempt to discover any SHIFTWISE software included in the SHIFTWISE PRODUCT(S) (including source and object code) or to sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the SHIFTWISE PRODUCT(S). You agree not to modify the SHIFTWISE PRODUCT(S) in any manner or form, or to use modified versions of the SHIFTWISE PRODUCT(S), including, without limitation, for the purpose of obtaining unauthorized access to the SHIFTWISE PRODUCT(S).
(b) Limitations. All rights not expressly granted herein are reserved by SHIFTWISE. Further, you agree not to copy, market or distribute the SHIFTWISE PRODUCT(S).
2. TERMINATION
(a) Termination for Breach. This Agreement may be terminated for a material breach of its terms provided that, the non-breaching party provides the breaching party written notice of the breach and the breaching party fails to cure the breach within thirty (30) days of its receipt of such notice. If You breach the Agreement, your right to use the SHIFTWISE PRODUCT(S) will terminate immediately and without notice, but all provisions of this AGREEMENT, except the license grant in Section 1, will survive termination and continue in effect. ��
(b) Bankruptcy.� Either party may terminate this Agreement immediately by written notice to the other party if there occurs any assignment of the other party�s assets for the benefit of creditors, any dissolution of the other party, any voluntary act of bankruptcy by the other party, or any involuntary filing under any bankruptcy law against the other party which is not dismissed within thirty (30) days of filing.
(c) Effect. Upon expiration or termination of this Agreement for any reason:
(i) The license granted You under this Agreement will become null and void.
(ii) �All outstanding obligations or commitments of either party to pay amounts to the other party, if any, will become immediately due and payable.
(iii) Upon termination You must destroy any back-up copies that you may have.
3. PROPRIETARY RIGHTS
Except as expressly provided for in Section 1 of this Agreement, SHIFTWISE and/or its licensors retain any and all right, title and interest in and to the SHIFTWISE PRODUCT(S). This Agreement grants no additional express or implied license, right or interest in any copyright, patent, trade secret, trademark, invention or other intellectual property right of SHIFTWISE. You receive no rights to and will not sell, assign, lease, market, distribute, transfer, encumber or suffer to exist any lien or security interest on any SHIFTWISE PRODUCT(S) (or derivative works of the SHIFTWISE PRODUCT(S)), nor will you take any action that would cause any SHIFTWISE PRODUCT(S) to be placed in the public domain. You will not make any warranties with respect to any SHIFTWISE PRODUCT(S) beyond those made to you by SHIFTWISE under this AGREEMENT.
4. CONFIDENTIAL INFORMATION
(a) Definition. �Confidential Information� means all confidential and proprietary information and data of any third party disclosed by a third party to you, or otherwise provided to you which in the case of written information is marked �confidential� or �proprietary�, and which, in the case of information disclosed orally, is identified at the time of the disclosure as confidential or proprietary. Information and data, whether written or oral, which is designated by the disclosing party as confidential shall be presumed �Confidential Information� by the receiving party. In addition, information and data that contains protected health information (�PHI�) or which by its nature the receiving party knows or reasonably should know is confidential is �Confidential Information. Both SHIFTWISE and you acknowledge and agree that any information and data that SHIFTWISE, you, or any third party inputs into the SHIFTWISE PRODUCT(S) or that is generated by the SHIFTWISE PRODUCT(S) is �Confidential Information.��
(b) General Nondisclosure Obligations. You agree that you will not use the SHIFTWISE PRODUCT(S) in a manner that would disclose Confidential Information to any third party in violation of your duty not to disclose such Confidential Information.
(c) Exceptions to Nondisclosure Obligations. The obligations of this Section 4 do not apply to information which you receive without a duty of confidentiality before receipt or is or becomes a matter of public knowledge through no fault of your own, is disclosed under operation of law or is disclosed as non-specific, aggregated data not uniquely identifiable to you or any health delivery organization (�HDO�). The obligations of this Section 4 shall in no way prohibit or restrict ShiftWise from disclosing or delivering any nurse�s profile information to that nurse to enable him or her access to their nurse profile information to review, update, modify or supplement such information and communicate the same to hospitals and/or staffing suppliers to secure staff placements.
(d)� �Personal Health Information. In instances where you receive, access, copy, store or distribute Protected Health Information (�PHI�) of a third party while using the SHIFTWISE PRODUCT(S), you agree that you shall comply with the applicable provisions of the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. Section 1320d through d-8, and the requirements of any regulations promulgated thereunder. You also acknowledge and agree that You expressly authorize SHIFTWISE to release and/or otherwise communicate any PHI you enter or input into the SHIFTWISE PRODUCT(S) to other HDOs utilizing SHIFTWISE PRODUCT(S) to access information regarding your staffing services and/or potential or actual staff placements at such HDOs.
5. WARRANTY
(a) Operation. For as long as you use the SHIFTWISE PRODUCT(S), SHIFTWISE warrants that the SHIFTWISE PRODUCT(S) will operate in accordance with the specifications, documentation, and final release information concerning the capabilities, functions and features of the SHIFTWISE PRODUCT(S) that have been provided to you.
(b) NO OTHER WARRANTIES. OTHER THAN THE WARRANTIES SET FORTH IN THIS SECTION, THE SHIFTWISE PRODUCT(S) IS PROVIDED �AS IS� WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND. SHIFTWISE FURTHER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SHIFTWISE DOES NOT WARRANT THAT THE SHIFTWISE PRODUCT(S) WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. EXCEPT FOR CAUSES OF ACTION OR DAMAGES ARISING OUT OF A CLAIM THAT THE SHIFTWISE PRODUCT(S) INFRINGES A THIRD PARTY’S PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS, SHIFTWISE’S LIABILITY FOR ANY CAUSE OF ACTION OR DAMAGES ARISING OUT OF THE USE OR PERFORMANCE OF THE SHIFTWISE PRODUCT(S) SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID TO SHIFTWISE OR BY YOU FOR USE OF THE SHIFTWISE PRODUCT(S).
6. LIMITATION OF LIABILITY; INDEMNIFICATION
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR PERFORMANCE OF THE SHIFTWISE PRODUCT(S) INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS OR BUSINESS INTERRUPTION, (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION,) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION SHALL NOT APPLY TO ANY LIABILITY ARISING IN CONNECTION TO A CLAIM THAT THE SHIFTWISE PRODUCTS INFRINGE A THIRD PARTY’S PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS, OR THAT THE RECKLESS OR INTENTIONAL ACTS OR OMISSIONS OF EITHER PARTY CAUSED PROPERTY DAMAGE, BODILY INJURY OR DEATH.
7. GENERAL
(a) Export. This AGREEMENT is subject to all applicable export restrictions. You may not export or re-export the SHIFTWISE PRODUCT(S) to a national of a country in Prohibited Country Groups without a license or a license exception from the U.S. Department of Commerce nor otherwise violate any provision of U.S. export laws.
(b) Government Use. The SHIFTWISE PRODUCT(S) is a “commercial item” as that term is defined in 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202.1 through 227.7202.4, all U.S. Government end users acquire the SHIFTWISE PRODUCT(S) with only those rights set forth therein.
(c) Governing Law. Unless otherwise agreed to in writing by SHIFTWISE and you, this AGREEMENT will be governed by the laws of the State of Oregon, without regard to any conflicts of law rules or principles, and the federal and state courts for Multnomah County, Oregon shall have jurisdiction over any disputes, claims or controversies arising out of or related to this AGREEMENT, and you irrevocably waive any objection to the jurisdiction of such courts.
(d) Copyright. The SHIFTWISE PRODUCT(S) is protected by the United States Copyright Law and International Treaties. Unauthorized reproduction and distribution is subject to civil and criminal penalties. © 2011 - SHIFTWISE.
(e) Assignment and Binding Effect. You may not assign this AGREEMENT or the license granted hereunder without the express written consent of the other party, other than in connection with an acquisition of all or substantially all of you business, stock or assets by merger, sale or otherwise, and any attempt to do so will be void.
(f) Notices. Any notice required to be sent to a party under this AGREEMENT will be in writing, effective on receipt by that party, and will be sent by fax, first-class mail or personal delivery to the address provided to the other party.
(g) Waiver and Severability. The waiver of one breach or default under this AGREEMENT will not constitute the waiver of any subsequent breach or default. Any provision of this AGREEMENT held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this AGREEMENT will continue in full force and effect.
(h) Excusable Delays. SHIFTWISE will not be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency and shortage of materials.
(i) Construction and Complete Agreement. If any provision of this AGREEMENT is held to be unenforceable, that provision will be enforced to the extent permitted by law, and the remaining provisions will remain in full force and effect. This AGREEMENT is the complete agreement between us and supersedes any prior agreement, or understanding, whether oral or written.