BreakoutMedEd
CLOUD
SERVICES AGREEMENT
Last Revised: December 22, 2022
This Cloud Services Agreement (this “Agreement”)
is a binding contract between you (“Customer,” “you,” or “your”)
and The Children’s Mercy Hospital (“Company,” “we,” or “us”).
This Agreement governs your access to and use of the Cloud Services.
THIS AGREEMENT TAKES EFFECT BY ACCESSING OR USING THE
CLOUD SERVICES (such date, the “Effective Date”). BY CLICKING ON THE “I
ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE CLOUD SERVICES YOU (A)
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND
WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS
AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU
HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS
AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I
DECLINE. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD
SERVICES.
1.
Definitions
.
(a)
“Authorized User” means
Customer and Customer’s employees and contractors (i) who are authorized by
Customer to access and use the Cloud Services under the rights granted to Customer
pursuant to this Agreement, and (ii) for whom access to the Cloud Services has
been purchased hereunder.
(b)
“Cloud Services” means the
services provided by Company under this Agreement that are detailed on Company’s
website available at www.breakoutmeded.org/Services.
(c)
“Customer Data” means
information, data, and other content, in any form or medium, that is submitted,
posted, or otherwise transmitted by or on behalf of Customer or any other
Authorized User through the Cloud Services.
(d)
“Documentation” means Company’s
user manuals, handbooks, and guides relating to the Cloud Services provided by Company
to Customer either electronically or in hard copy form, if any.
(e)
“Company IP” means the
Cloud Services, the Documentation, and all intellectual property provided to
Customer or any other Authorized User in connection with the foregoing. For the
avoidance of doubt, Company IP includes any information, data, or other content
derived from Company’s monitoring of Customer’s access to or use of the Cloud
Services, but does not include Customer Data.
(f)
“Third-Party Products”
means any products, content, services, information, websites, or other
materials that are owned by third parties and are incorporated into or
accessible through the Cloud Services.
2.
Access and Use
.
(a)
Provision of Access
. Subject to and conditioned on your payment of Fees and compliance
with the terms and conditions of this Agreement, Company hereby grants you a
revocable, non-exclusive, non-transferable, non-sublicensable, limited right to
access and use the Cloud Services during the Term solely for your internal
business operations by Authorized Users in accordance with the terms and
conditions herein. Company shall provide you the necessary passwords and access
credentials to allow you to access the Cloud Services.
(b)
Downloadable Software
. Use of the Cloud Services may require or include use
of downloadable software. Company grants you a non-transferable, non-exclusive,
non-assignable, limited right for Authorized Users to use downloadable software
we provide as part of the Cloud Services. Any Third-Party Products that consist
of downloadable software are subject to the terms of
Section 3(e)
.
(c)
Use Restrictions
. You shall not, and shall not permit any Authorized
Users to, use the Cloud Services, any software component of the Cloud Services,
or Documentation for any purposes beyond the scope of the access granted in
this Agreement. You shall not at any time, directly or indirectly, and shall
not permit any Authorized Users to: (i) copy, modify, or create derivative
works of the Cloud Services, any software component of the Cloud Services, or
Documentation, in whole or in part; (ii) rent, lease, lend, sell, license,
sublicense, assign, distribute, publish, transfer, or otherwise make available
the Cloud Services or Documentation except as expressly permitted under this
Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or
otherwise attempt to derive or gain access to any software component of the
Cloud Services, in whole or in part; (iv) remove any proprietary notices from
the Cloud Services or Documentation; or (v) use the Cloud Services or
Documentation in any manner or for any purpose that infringes, misappropriates,
or otherwise violates any intellectual property right or other right of any
person, or that violates any applicable law, regulation, or rule.
(d)
Reservation of Rights
. Company reserves all rights not expressly granted to
Customer in this Agreement. Except for the limited rights and licenses
expressly granted under this Agreement, nothing in this Agreement grants, by
implication, waiver, estoppel, or otherwise, to Customer or any third party,
any intellectual property rights or other right, title, or interest in or to
the Company IP.
(e)
Suspension
. Notwithstanding anything to the contrary in this
Agreement, Company may temporarily suspend Customer’s and any other Authorized
User’s access to any portion or all of the Cloud Services: (i) if Company
reasonably determines that (A) there is a threat or attack on any of the Company
IP; (B) Customer’s or any other Authorized User’s use of the Company IP
disrupts or poses a security risk to the Company IP or to any other customer or
vendor of Company; (C) Customer or any other Authorized User is using the Company
IP for fraudulent or illegal activities; (D) subject to applicable law,
Customer has ceased to continue its business in the ordinary course, made an
assignment for the benefit of creditors or similar disposition of its assets,
or become the subject of any bankruptcy, reorganization, liquidation,
dissolution, or similar proceeding; or (E) Company’s provision of the Cloud
Services to Customer or any other Authorized User is prohibited by applicable
law; (ii) if any vendor of Company has suspended or terminated Company’s access
to or use of any third-party services or products required to enable Customer
to access the Cloud Services; or (iii) in accordance with
Section 5
(any such
suspension described in subclause (i), (ii), or (iii), a “Service Suspension”).
Company shall use commercially reasonable efforts to provide written notice of
any Service Suspension to Customer and to provide updates regarding resumption
of access to the Cloud Services following any Service Suspension. Company shall
use commercially reasonable efforts to resume providing access to the Cloud
Services as soon as reasonably possible after the event giving rise to the
Cloud Services Suspension is cured. Company will have no liability for any
damage, liabilities, losses (including any loss of or profits), or any other
consequences that Customer or any other Authorized User may incur as a result
of a Service Suspension.
3.
Customer Responsibilities
.
(a)
Acceptable Use
. The Cloud Services may not be used for unlawful,
fraudulent, offensive, or obscene activity. You will comply, and ensure that
your Authorized Users comply, with all terms and conditions of this Agreement,
all applicable laws, rules, and regulations, and all guidelines, standards, and
requirements that may be posted on www.breakoutmeded.org/terms_of_use from time to
time.
(b)
Account Use
. You are responsible and liable for all uses of the
Cloud Services and Documentation resulting from access provided by you,
directly or indirectly, whether such access or use is permitted by or in
violation of this Agreement. Without limiting the generality of the foregoing,
you are responsible for all acts and omissions of Authorized Users, and any act
or omission by an Authorized User that would constitute a breach of this
Agreement if taken by you will be deemed a breach of this Agreement by you. You
shall use reasonable efforts to make all Authorized Users aware of this
Agreement’s provisions as applicable to such Authorized User’s use of the Cloud
Services and shall cause Authorized Users to comply with such provisions.
(c)
Customer Data
. You hereby grant to Company a non-exclusive,
royalty-free, worldwide license to reproduce, distribute, and otherwise use and
display the Customer Data and perform all acts with respect to the Customer
Data as may be necessary for Company to provide the Cloud Services to you. You
are solely responsible for the development, content, operation, maintenance,
and use of Customer Data.
(d)
Passwords and Access
Credentials
. You are responsible
for keeping your passwords and access credentials associated with the Cloud
Services confidential. You will not sell or transfer them to any other person
or entity. You will promptly notify us about any unauthorized access to your
passwords or access credentials.
(e)
Third-Party Products
. The Services may permit access to Third-Party
Products. For purposes of this Agreement, such Third-Party Products are subject
to their own terms and conditions presented to you for acceptance within the
Cloud Services by website link or otherwise. If you do not agree to abide by
the applicable terms for any such Third-Party Products, then you should not
install, access, or use such Third-Party Products.
4.
Support
.
This Agreement does not entitle Customer to any support for the
Cloud Services.
5.
Fees and Payment
. Customer shall pay Company the fees as described on www.breakoutmeded.org/subscribe
(“Fees”) within thirty (30) days from the invoice date without offset or
deduction. Customer shall make all payments hereunder in US dollars on or
before the due date. If Customer fails to make any payment when due, without
limiting Company’s other rights and remedies, Company may suspend, in
accordance with
Section 2(e)
,
Customer’s and all other Authorized Users’ access to any portion or all of the
Cloud Services until such amounts are paid in full. All Fees and other amounts
payable by Customer under this Agreement are exclusive of taxes and similar
assessments. Customer is responsible for all sales, use, and excise taxes, and
any other similar taxes, duties, and charges of any kind imposed by any
federal, state, or local governmental or regulatory authority on any amounts
payable by Customer hereunder, other than any taxes imposed on Company’s
income.
The parties acknowledge that the
compensation payable hereunder is intended to compensate Company for the service
provided by Company to you and is not dependent upon the volume or value of any
business or referrals generated between the parties. Nothing herein shall be
intended or implied to require the referral of any patient between the parties.
6.
Privacy Policy
. Company complies with its privacy policy, available
at www.breakoutmeded.org/Privacy (“Privacy Policy”), in providing the Cloud
Services. The Privacy Policy is subject to change as described therein. By
accessing, using, and providing information to or through the Cloud Services,
you acknowledge that you have reviewed and accepted our Privacy Policy, and you
consent to all actions taken by us with respect to your information in
compliance with the then-current version of our Privacy Policy.
7.
Intellectual Property
Ownership; Feedback
. As between
you and us, (a) we own all right, title, and interest, including all
intellectual property rights, in and to the Cloud Services and (b) you own all
right, title, and interest, including all intellectual property rights, in and
to Customer Data. If you or any of your employees, contractors, or agents sends
or transmits any communications or materials to us by mail, email, telephone,
or otherwise, suggesting or recommending changes to the Cloud Services,
including without limitation, new features or functionality relating thereto,
or any comments, questions, suggestions, or the like (“Feedback”), we
are free to use such Feedback irrespective of any other obligation or
limitation between you and us governing such Feedback. All Feedback is and will
be treated as non-confidential. You hereby assign to us on your behalf, and
shall cause your employees, contractors, and agents to assign, all right,
title, and interest in, and we are free to use, without any attribution or
compensation to you or any third party, any ideas, know-how, concepts,
techniques, or other intellectual property rights contained in the Feedback,
for any purpose whatsoever, although we are not required to use any Feedback.
8.
Limited Warranty and Warranty
Disclaimer
.
T
HE CLOUD SERVICES ARE PROVIDED “AS IS”
AND COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR
TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES,
OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER
PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY
INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S
SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF
HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9.
Indemnification
.
(a)
Company Indemnification
.
(i)
Company shall indemnify, defend,
and hold Customer harmless from and against any and all losses, damages,
liabilities, deficiencies, claims, actions, judgments, settlements, interest,
awards, penalties, fines, costs, or expenses of whatever kind, including
[reasonable] attorneys’ fees (“Losses”), incurred by Customer resulting
from any third-party claim, suit, action, or proceeding (“Third-Party Claim”)
that the Cloud Services, or any use of the Cloud Services in accordance with
this Agreement, infringes or misappropriates such third party’s US patent or copyright,
provided that Customer promptly notifies Company in writing of the Third-Party
Claim, cooperates with Company, and allows Company sole authority to control
the defense and settlement of such Third-Party Claim.
(ii)
If such a Third-Party Claim is
made or Company anticipates such a Third-Party Claim will be made, Customer
agrees to permit Company, at Company’s sole discretion, to (A) modify or replace
the Cloud Services, or component or part thereof, to make it non-infringing, or
(B) obtain the right for Customer to continue use. If Company determines that
neither alternative is reasonably available, Company may terminate this
Agreement, in its entirety or with respect to the affected component or part,
effective immediately on written notice to Customer. This Section 9(a)(ii) sets
forth your sole remedies and our sole liability and obligation for any actual,
threatened, or alleged Third-Party Claims that the Cloud Services infringe,
misappropriate, or otherwise violate any intellectual property rights of any
third party.
(iii)
This
Section 9(a)
will not apply to the extent that any such
Third-Party Claim arises from Customer Data or Third-Party Products.
(b)
Customer Indemnification
. Customer shall indemnify, hold harmless, and, at Company’s
option, defend Company and its officers, directors, employees, agents,
affiliates, successors, and assigns from and against any and all Losses arising
from or relating to any Third-Party Claim (i) that the Customer Data, or any
use of the Customer Data in accordance with this Agreement, infringes or
misappropriates such third party’s intellectual property rights; or (ii) based
on Customer’s or any Authorized User’s negligence or willful misconduct or use
of the Cloud Services in a manner not authorized by this Agreement; provided
that Customer may not settle any Third-Party Claim against Company unless Company
consents to such settlement, and further provided that Company will have the
right, at its option, to defend itself against any such Third-Party Claim or to
participate in the defense thereof by counsel of its own choice.
10.
Limitations of Liability
. IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR
OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN
VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL
OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY
OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT
GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF
THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE
OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING
OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR
OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE
TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The
exclusions and limitations in this Section 10 do not apply to the parties’
obligations under
Section 9.
11.
Term and Termination
.
(a)
Term
. The Cloud Services term begins on the 1st
day of the month directly proceeding the Effective Date and continues until
terminated. Cloud Services that are specified to automatically renew will renew
for successive one-year terms unless earlier terminated pursuant to this
Agreement’s express provisions or either party gives the other party written
notice of non-renewal at least 30 days prior to the expiration of the
then-current services period.
(b)
Termination
. In addition to any other express termination right
set forth in this Agreement:
(i)
Either party may terminate this
Agreement upon 30 days’ advance notice.
(ii)
Either party may terminate this
Agreement, effective on written notice to the other party, if the other party
breaches this Agreement, and such breach: (A) is incapable of cure; or (B)
being capable of cure, remains uncured 30 days after the non-breaching party
provides the breaching party with written notice of such breach.
(iii)
Either party may terminate this
Agreement, effective immediately upon written notice to the other party, if the
other party: (A) becomes insolvent or is generally unable to pay, or fails to
pay, its debts as they become due; (B) files, or has filed against it, a
petition for voluntary or involuntary bankruptcy or otherwise becomes subject,
voluntarily or involuntarily, to any proceeding under any domestic or foreign
bankruptcy or insolvency law; (C) makes or seeks to make a general assignment
for the benefit of its creditors; (D) applies for or has appointed a receiver,
trustee, custodian, or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its
property or business
; or (E) is
excluded or suspended from participation in Medicare, Medicaid, TRICARE (f/k/a
CHAMPUS and CHAMPVA) or any other federal, state or local governmental health
care program.
(c)
Effect of Termination
. Upon termination of this Agreement, Customer shall
immediately discontinue use of the Company IP. No expiration or termination of
this Agreement will affect Customer’s obligation to pay all Fees that may have
become due before such expiration or termination, or entitle Customer to any
refund.
(d)
Survival
. This Section 11(d), Sections 7, 8, 9, 10, 12, 14, and 15
, and any
right, obligation, or required performance of the parties in this Agreement
which, by its express terms or nature and context is intended to survive
termination of this Agreement, will survive any such termination
.
12.
Modifications.
We may modify this Agreementfrom time to time in which case
we will update the “Last Revised” date at the top of these Terms. If we make
changes that are material, we will use reasonable efforts to attempt to notify
you, such as by e-mail and/or by placing a prominent notice on the first page
of the Site. However, it is your sole responsibility to review this Agreement from
time to time to view any such changes. The updated Agreement will be effective
as of the time of posting, or such later date as may be specified in the
updated Agreement.
Your
continued use of the Cloud Services after the effective date of the
modifications will be deemed acceptance of the modified terms.
13.
Export Regulation
. The Cloud Services utilize software and technology
that may be subject to US export control laws, including the US Export
Administration Act and its associated regulations. You shall not, directly or
indirectly, export, re-export, or release the Cloud Services or the software or
technology included in the Cloud Services to, or make the Cloud Services or the
software or technology included in the Cloud Services accessible from, any
jurisdiction or country to which export, re-export, or release is prohibited by
law, regulation, or rule. You shall comply with all applicable federal laws,
regulations, and rules, and complete all required undertakings (including
obtaining any necessary export license or other governmental approval), prior
to exporting, re-exporting, releasing, or otherwise making the Cloud Services
or the software or technology included in the Cloud Services available outside
the US.
14.
Governing Law and Jurisdiction
. This Agreement, and all matters arising out of or
relating to this Agreement, are governed by the laws of the State of Delaware,
United States of America, without giving effect to the conflict of laws
principles and rules of the State of Delaware (to the extent such principles or
rules would require or permit the application of the laws of any jurisdiction
other than those of the State of Delaware).
All disputes arising out of or relating to this Agreement will be
subject to the exclusive jurisdiction and venue of the state and federal courts
seated in Jackson County, Kansas City, Missouri. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action,
or proceeding in such courts and irrevocably waive and agree not to plead or
claim in any such court that any such suit, action, or proceeding brought in
any such court has been brought in an inconvenient forum.
15.
Miscellaneous
. This Agreement constitutes the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous understandings, agreements,
representations, and warranties, both written and oral, with respect to such
subject matter. Any notices to us must be sent to our corporate headquarters
address available at www.breakoutmeded.org/contact and must be delivered either in
person, by certified or registered mail, return receipt requested and postage
prepaid, or by recognized overnight courier service, and are deemed given upon
receipt by us. Notwithstanding the foregoing, you hereby consent to receiving
electronic communications from us. These electronic communications may include
notices about applicable fees and charges, transactional information, and other
information concerning or related to the Cloud Services. You agree that any
notices, agreements, disclosures, or other communications that we send to you
electronically will satisfy any legal communication requirements, including
that such communications be in writing. The invalidity, illegality, or
unenforceability of any provision herein does not affect any other provision
herein or the validity, legality, or enforceability of such provision in any
other jurisdiction. Any failure to act by us with respect to a breach of this
Agreement by you or others does not constitute a waiver and will not limit our
rights with respect to such breach or any subsequent breaches. This Agreement
is personal to you and may not be assigned or transferred for any reason
whatsoever without our prior written consent and any action or conduct in
violation of the foregoing will be void and without effect. We expressly
reserve the right to assign this Agreement and to delegate any of its
obligations hereunder.
