Updated: January 3, 2019
This is a subscription agreement (“Agreement”) between Soleran,Inc., (“Soleran”) and the entity or organization on behalf of which you areaccepting this Agreement (collectively, “_______________”) for access to the eAppTrack product family services, software or online tools (collectively, “eAppTrack”). In addition to the foregoing, references to eAppTrack, as used herein, shall include any and all proprietary documents and materials made available through eAppTrack and any and all accompanying and supporting software, services (whether or not provided online), content, and documentation, and the entire eAppTrack family of products that include eMediTrack. “Users” shall mean those individuals designated and authorized by you to access and use eAppTrack and who have been issued separate account registration and login information. Soleran and you are collectively referred to herein as the “parties.”
1. Product Terms
a. Description. eAppTrack is proprietary to Soleran and is protected by intellectual property laws and international intellectual property treaties. Your and your Users’ access to eAppTrack is licensed and not sold. Soleran reserves all rights not expressly granted to you, including, but not limited to, the right to alter, modify, update, enhance, or improve eAppTrack.
b. eAppTrack. Subject to the terms of this Agreement and upon payment of any applicable Fees (defined below), Soleran agrees to provide you with the number of non-exclusive, non-transferable user accounts for which you have subscribed in the Order Form (defined below) enabling you and your Users to access and use eAppTrack solely for your internal business needs. Each User account is valid for one user only and may not be shared concurrently or otherwise by or among multiple Users. You may harvest and/or reassign User accounts to new Users within your organization by notifying Soleran (for example, upon the departure or reassignment of a User). Users of eAppTrack are limited solely to your employees or independent contractors. You are responsible for your Users’ compliance with the terms of this Agreement.
c. Accessibility of eAppTrack. Soleran will use commercially reasonable efforts to make the core functions and features of eAppTrack available for access by you and your Users via the Internet ninety-nine (99%) of the time during normal business hours. You understand and agree that from time to time eAppTrack may be inaccessible or inoperable during normal business hours in the event of periodic maintenance procedures or repairs which Soleran may undertake of which Soleran notifies you at least twenty-four (24) hours in advance; provided that,periodic maintenance affecting the availability of core functions and features during normal business hours that exceeds four (4) hours during any contract month shall be included in the calculation of the service levels provided above.
d. Usage Limitations. Each User account will have 1 GB of storage space to store all Customer Data (defined below) loaded by such User. This space can be used as aggregate storage space throughout all of your User accounts. Additional storage can be purchased per User account at Soleran’s then-standard rates. Soleran reserves the right to implement reasonable usage limitations from time to time, including limitations on the number of page views and calls to Soleran’s interface.
e. Equipment. You shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for your and your User’s access and use of eAppTrack, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, and programs and services required to access and use eAppTrack.
f. Reverse Engineering. Modification, reverse engineering, reverse compiling, or disassembly of eAppTrack or any component thereof is expressly prohibited.
a. Account Security. You and your Users shall be responsible for the security,confidentiality and integrity of all information that Users receive or transmit through eAppTrack. You and your Users shall be responsible for any authorized or unauthorized access or use of a User account by any person. You shall use commercially reasonable efforts to monitor and control access to your Users’ accounts and account information. If at any time you learn or suspect that any of your Users’ account information has been disclosed or otherwise made known to any person other than the relevant User, you agree to immediately notify Soleran at security@eAppTrack.com. You agree to bear all responsibility for the confidentiality of your Users’ passwords and all use or charges incurred from use of eAppTrack through your Users’ accounts.
b. Security Statement. Soleran’s Security Statement is located at the following link: http://www.Soleran.com/Company/Security (“Security Statement”). While Soleran and its service providers undertake the security precautions set forth in the Security Statement, Soleran cannot guarantee security of your information. Soleran reserves the right to update and/or modify the Security Statement by notifying you of such changes at least thirty (30) days in advance.
d. Circumvention. You and your Users agree not to access eAppTrack, any part thereof or any information contained thereon through any technology or means other than through the applicable User’s account using the applicable User’s account information. You and your Users agree not to use or launch any automated system, including, without limitation, “robots,” “spiders” or “offline readers,” that accesses eAppTrack in a manner that sends more request messages to Soleran or eAppTrack in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. You and your Users agree not to collect or harvest any personally identifiable information, including account information, from eAppTrack or Soleran.
3. Intellectual Property
a. Soleran Intellectual Property. The intellectual property utilized in providing eAppTrack is the valuable, confidential and copyrighted property of Soleran. You and your Users may use eAppTrack as permitted herein and may not otherwise disclose, modify, adapt, translate, or create derivative works based on eAppTrack or any component thereof without the prior written consent of Soleran. As between the parties, Soleran owns all right, title, and interest in and to eAppTrack, including without limitation, any and all proprietary documents and materials made available through eAppTrack and all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, patents and goodwill therein, and all images, photographs, illustrations, graphics, audio, video and other content therein. Soleran®, the Soleran logo, eAppTrack™ and the eAppTrack™ logo, eMediTrack™and the eMediTrack™ logo are service marks of Soleran. All other trademarks, service marks and logos used on the website or through eAppTrack are the trademarks, service marks or logos of their respective owners.
b. Customer Data. eAppTrack allows you to upload data selected by your Users (the“Customer Data”) into the eAppTrack system. In connection with Customer Data, you affirm, represent and warrant that you own or have the necessary licenses, rights, consents and permissions to use and authorize Soleran to use all Customer Data and to enable inclusion and use of the Customer Data in the manner contemplated here under. You retain all ownership rights in the Customer Data. By uploading Customer Data to eAppTrack, you hereby grant Soleran a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate,incorporate, prepare derivative and collective works utilizing, display and perform the Customer Data for purposes of providing eAppTrack and the services to you under this Agreement. Additionally, you grant to Soleran a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable and transferable license to use, reproduce, adapt, perform, compile, display,incorporate, modify and create derivative and collective works utilizing non-PHI Customer Data in a de-identified format for the improvement of eAppTrack and Soleran’s other products and services (as may exist now or in the future) and for such other lawful purposes as Soleran sees fit. For the avoidance of doubt, Soleran will compile and present any such Customer Data that it so uses in such a manner that data cannot reasonably uniquely identify, either explicitly or implicitly, you or any individual.
c. Inaccurate Customer Data. All Customer Data originates from you and your Users, and as such, is beyond the control of Soleran. Soleran neither initiates the uploading of such Customer Data nor monitors the specific content or accuracy of the Customer Data being uploaded. Without limiting the generality of any other provision of this Agreement, Soleran shall have no responsibility for or liability related to the accuracy, content, currency, completeness or delivery of the Customer Data provided by you or any of your Users. You are responsible for the accuracy, content, currency, completeness and delivery of the Customer Data uploaded by your Users, and you warrant that the Customer Data posted by your Users is accurate, current and complete.
d. Suggestions. You grant to us a royalty-free, worldwide, transferable, sublicenseable,irrevocable, perpetual license to use or incorporate into eAppTrack any suggestions, enhancement requests, recommendations or other feedback provided by you or your Users relating to the operation of eAppTrack.
4. User Representations
5. Prohibited Uses
You are responsible for any and all acts and omissions that occur under each of your User’s account or password, and you and your Users agree not to engage in unacceptable use of eAppTrack, which includes, without limitation, use of eAppTrack to: (a) disseminate or transmit material that, to a reasonable person, may be abusive, obscene, pornographic,defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (b)disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property rights of any person; (c) interfere,disrupt or attempt to gain unauthorized access to other accounts on eAppTrack or any other computer network; (d) disseminate, store or transmit viruses, trojan horses or any other malicious code or programs; (e) disseminate or otherwise make available any proprietary documents or materials made available through eAppTrack to third parties unrelated to your internal business needs without the prior written consent of Soleran; and/or (f) violate any statute,law, rule or regulation or otherwise violate the legal rights of a third person.
6. Fees and Payment
a. Payment. You shall pay to Soleran (or to its third party payment services provider, if any) the subscription and other charges set forth in the applicable order form(whether online or otherwise) (“Order Form”), the first such payment due and payable immediately upon submission of the Order Form and any other payments due monthly, quarterly or annually as set forth in the Order Form(“Fees”). All Fees, Taxes and other charges shall be billed manually, ACH or other payment method by Soleran or its third party service provider, if any. Fees are quoted and payable in United States dollars and are based on services and accounts purchased as opposed to actual usage. In the event the Agreement is renewed as set forth in Section 8, you agree that Soleran may automatically charge you for the Fees due for the renewal term based upon your then-current usage of eAppTrack using your previous payment method.
b. Collection and Taxes. You shall be responsible for and shall pay Soleran all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon(“Taxes”), whether imposed now or hereinafter by any governmental entity. You agree to pay interest at the rate equal to the lesser of 1.5% per month, or the maximum rate allowed by applicable law, on any outstanding balance,together with costs of collection, including attorneys’ fees and costs.
By virtue of this Agreement, each party may have access to information that is confidential to the other party(“Confidential Information”). Soleran’s Confidential Information shall include,but not be limited to, any documents or materials made available through eAppTrack, the eAppTrack software, documentation, formulas, methods, know how, processes,designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, terms and pricing, and any information clearly identified in writing or which, by its nature, should reasonably be known by User at the time of disclosure as confidential. Your Confidential Information shall include Customer Data submitted via eAppTrack that is non-public, proprietary information. Each party acknowledges that the disclosing party’s Confidential Information constitutes valuable,proprietary information of the disclosing party, and each party agrees that it shall use the disclosing party’s Confidential Information solely in accordance with the provisions of this Agreement and shall not use or disclose, or permit to be used or disclosed, the same, directly or indirectly, to any third party without the disclosing party’s prior written consent. Each party shall safeguard the disclosing party’s Confidential Information from unauthorized use and disclosure using measures that are equal to the standard of performance used it to safeguard its own Confidential Information of comparable value, but in no event less than reasonable care. The following information will not be considered Confidential Information: (a) information which was in the public domain prior to its disclosure; (b) information which becomes part of the public domain by any means other than through violation of this Agreement; (c)information independently developed by the receiving party without reference to the disclosing party’s Confidential Information, already in the receiving party’s possession prior to receipt from the disclosing party, or rightfully provided to the receiving party from a third party without restriction; or (d)information produced in compliance with any court or administrative order;provided, however, that the receiving party gives the disclosing party reasonable notice that such Confidential Information is being sought by a third party, so as to afford the disclosing party the opportunity to limit or prevent such disclosure. Further, each party agrees that it shall disclose the disclosing party’s Confidential Information only to such of its representatives and/or employees who have a need to know such information for the furtherance of this Agreement.
8. Term; Termination
a. Term; Renewal. This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until the expiration of the period set forth in the Order Form unless otherwise earlier terminated in accordance with this Agreement. Except as otherwise specified in the applicable Order Form,all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days prior the end of the relevant subscription term. The Fees during any such renewal term shall be the same as those charged during the prior term unless Soleran provides you with written notice of an increase in Fees at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such increase in Fees shall not exceed seven percent (7%) over the applicable Fees for materially similar access to or number of equivalent accounts for eAppTrack in the immediately prior subscription term, unless the Fees in such prior term was designated in the relevant Order Form as promotional or one-time.
b. Additional Methods of Termination of eAppTrack Soleran reserves the right, in its sole discretion and at any time and for any reason, to terminate the terms of this Agreement as to eAppTrack upon thirty (30) days’ notice to you.
c. Effect of Termination. Upon termination, you and your Users shall terminate all use of eAppTrack, including, without limitation, you and your Users’ use of any and all proprietary documents and materials made available through eAppTrack,and each party shall return or destroy the other party’s Confidential Information (provided that Soleran may retain your Confidential Information subject to the confidentiality obligations of this Agreement to the extent incorporated into Soleran’s disaster recovery backups or as otherwise permitted or required by law). If requested within thirty (30) days after the effective date of termination of this Agreement, Soleran will make available to you for download a file of all requested Customer Data in comma separated value(.csv) format. After such thirty day period, Soleran shall have no obligation to maintain or provide any Customer Data and shall thereafter,unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. All dues and fees in the Order Form that have not been paid and are due in the remaining term of the Order Form, will be due upon termination of this agreement if terminated prior to thirty (30) days from the expiration date of the Order Form.
9. Disclaimer of Warranties
Except as otherwise expressly provided herein or otherwise prohibited by law, eAppTrack is provided “as is” without warranty of any kind,express or implied. Your and your users’access to and use of eAppTrack is at your sole risk. Soleran does not warrant that your or your users’ use of eAppTrack will be uninterrupted or error free, nor does Soleran make any warranty as to any results that may be obtained by use of eAppTrack, nor does Soleran provide any warranty related to the timeliness, sequence, accuracy, adequacy or completeness of any documents, materials or information provided through eAppTrack. Soleran makes no other warranties, express or implied, including, without limitation,any implied warranties of merchantability or fitness for a particular purpose,in relation to eAppTrack.
10. Limitation of Liability
Except as otherwise prohibited by law, under no circumstances shall Soleran be liable to you, any user or any other person for any indirect,incidental, consequential, special or punitive damages for any matter arising from or relating to this agreement, eAppTrack or the internet generally,including, without limitation, your or your users’ use or inability to use eAppTrack,any changes to or inaccessibility of eAppTrack, delay, failure, unauthorized access to or alteration of any transmission or data, any material or data sent or received or not sent or received, any transaction or agreement entered into through eAppTrack, or any data or material from a third person accessed on or through eAppTrack, whether such liability is asserted on the basis of contract,tort or otherwise. Except as otherwise prohibited by law, in no event shall Soleran’s total liability for direct damages exceed the total purchase price and/or fees paid, if any, by you to Soleran hereunder. If you are dissatisfied with eAppTrack,your sole and exclusive remedy shall be for you and your users to discontinue use of eAppTrack and terminate this agreement in accordance with section 8.
Soleran is not an insurer with regard to performance of eAppTrack. The disclaimer of warranties and the limitation of liability and remedy are a reflection of the risks assumed by the parties in order for you and your users to obtain the right to use eAppTrack at the specified price, if any. You agree to assume the risk for: (I) all liabilities disclaimed by Soleran contained herein; and (ii) all alleged damages in excess of the amount, if any, of the limited remedy provided here under.
You agree to indemnify, hold harmless and defend Soleran, its members, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement; (b) your and your Users’ use of eAppTrack,including any Customer Data, data or work transmitted or received by your Users; (c) any unacceptable use of eAppTrack by your Users or through your Users’ accounts, including, without limitation, any Customer Data or any statement, data or content made, transmitted or republished by your Users which is prohibited under applicable law or by this Agreement; (d) any intentional or negligent act or omission of your Users; and/or (e) your Users’ violation of any third party rights, including, without limitation, any intellectual property or privacy right.
a. IndependentContractors. The parties and their respective personnel, are and shall beindependent contractors and neither party by virtue of this Agreement shallhave any right, power or authority to act or create any obligation, express orimplied, on behalf of the other party.
b. Assignment. You shall not assign or otherwise transfer your license under this Agreement or any of your rights or duties here under to another party, by operation of law or otherwise, without the prior written consent of Soleran. Any attempted assignment or transfer in contravention of this Agreement shall be void and of no effect. Soleran may assign this Agreement at any time without advance written notice to you.
c. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof,whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
e. Notice. Unless otherwise provided in this Agreement, all notices shall be in writingand shall be deemed to be delivered when sent by first-class mail, postageprepaid, or when sent by facsimile or e-mail to either party’s last known postoffice, facsimile or e-mail address, respectively. You hereby consent tonotice by email and posting on Soleran’s web site. Unless otherwiseprovided in this Agreement, all notices shall be directed to the parties attheir respective addresses or to such other address as either party may, fromtime to time, provide to the other party.
f. Law. This Agreement shall be treated as though it were executed and were to be performed in Johnson County, Kansas, USA. The rights and obligations under this Agreement shall not be governed by the United Nations Convention on Contracts or the International Sale of Goods, the application of which is expressly excluded, but such rights and obligations will instead be governed by the laws of the State of Kansas, USA. This Agreement shall be interpreted in accordance with and governed by the laws of the State of Kansas, USA, without regard to conflict of law principles.
g. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts located in or serving Johnson County, Kansas, USA. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts located in or serving Johnson County, Kansas, USA. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts located in or serving Johnson County, Kansas, USA and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court located in or serving Johnson County, Kansas, USA.
h. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation,service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits,actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts located in or serving Johnson County, Kansas, USA.
i. Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, but not limited to, the unauthorized use or duplication of eAppTrack or any of the proprietary documents and materials made available through eAppTrack or a breach of the confidentiality provisions of this Agreement, would cause irreparable harm and significant injury to Soleran which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Soleran has the right to enforce the provisions of this Agreement in a court of competent jurisdictionby injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies Soleran may have for your breach of this Agreement.
j. Attorney’s Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
k. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
l. Force Majeure. If the performance of any part of this Agreement by either party(other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, telecommunications interruption, slow-speed of the Internet or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
m. Survival. The terms and provisions of Sections 1(a), 1(f), 3, 4, 7, and 9-12 shall survive any termination or expiration of this Agreement.
n. Entire Agreement. This Agreement, including any other documents referenced herein and hereby incorporated by this reference, constitutes the complete and exclusive statement of the agreement between the parties with respect to eAppTrack and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written,between the parties concerning eAppTrack. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
o. Export Compliance. You and your Users shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using eAppTrack. Without limiting the generality of the foregoing, you represent that (i) you and your Users are not named on any U.S. or other applicable government list of persons or entities prohibited from receiving exports, and (ii) you shall not permit Users to access or use eAppTrack in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction. You recognize and acknowledge that some countries (including, without limitation,Belgium, China (including Hong Kong), France, India, Indonesia, Israel, Russia,Saudi Arabia, Singapore and South Korea) have restrictions on the use of encryption within their borders or the import or export of encryption even if only for temporary personal or business use, and you further acknowledge and agree that you and your Users are ultimately responsible for complying with any and all government export and other applicable laws.
ReferencedPolicies and Statements:
Security Statement: http://www.Soleran.com/company/security