Commercial License

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CARESET COMMERCIAL DATA LICENSE AGREEMENT

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING DATA.
These terms and conditions govern the release and use of the data (“Licensed Data”) made available to you (“Licensee”) from CareSet Systems, Inc. (“Licensor”).

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***Background***

Licensor’s products and services include data obtained by Licensor under license from third party sources and with respect to which Licensor has certain moral, legal, and contractual obligations. To honor these obligations, Licensor requires that Licensee agree to the terms and conditions of this Agreement regarding Licensee’s access to these data in connection with Licensor’s products and services.

***Terms and Conditions***

—License Grant. Subject to the terms and conditions of this Agreement and any related agreement between the Parties regarding Licensor products and services that include data provided by Licensor to Licensee, Licensor grants to Licensee, and Licensee accepts, a limited, revocable, personal, non-exclusive, non-assignable, non-transferrable, and non-sublicensable license for Licensee, by and through its employees, agents, and service providers who are reasonably authorized by Licensee to act on its behalf, to access, use, copy, modify, and create derivative works of the data provided by Licensor, including as part of a commercial product, as long as the following terms are passed along as part of your subsequent data license.

—Acknowledgment. You agree to include acknowledgement of Licensor in all articles, press releases or other publications in which data obtained from this site is published. Such acknowledgement shall reference only the specific data obtained from this site and no other data.

—Restrictions on Use of Data. Licensee shall not use data provided by Licensor, or combine data provided by Licensor with other data sources: (a) intentionally to deduce the identity of any individual that is not already expressly identified in the data provided by Licensor (except that the Licensee is a treating provider of the given patient, and already has access to the information); (b) to create fraud or abuse; (c) to exploit patients; or (d) to market directly to patients.

—Suppression of Data. Licensee acknowledges that some or all of the Licensed Data received from Licensor is suppressed prior to release, according to the suppression policies of Licensor’s third party data sources. Licensor may further suppress data above and beyond the policies of its third party data sources. Suppression may include, but is not limited to, the current CMS policy which states that no cell (e.g., admissions, discharges, patients) combining a count of less than 11 may be displayed nor may any use be made of percentages or other mathematical formulas if they result in, or imply, the display of a cell of less than 11.

—Data Protection and Privacy Laws. Licensee will not use, intentionally or unintentionally, any of the Licensed Data released to Licensee in a manner contrary to, or in violation of, applicable law, such as laws pertaining to data protection or privacy.

—Restriction on Distribution to Third Parties; No Resale. Licensee is prohibited from distributing substantial portions of the raw data provided by Licensor (i.e., greater than twenty-five percent (25%) of the raw data included in any data file or dataset identified by Licensor) to third parties other than service providers who are providing services to Licensee for Licensee’s internal purposes that are consistent with the purpose for which Licensor provided such data to Licensee (e.g., research, analysis, marketing, etc.). Licensee is strictly prohibited from reselling raw data provided by Licensor. As used in this paragraph, “raw data” are data that have not been modified substantially from the form and format provided by Licensor.

—Compliance with Data Retraction Notices. In order for Licensor to comply with obligations Licensor has to its licensors regarding the retraction of data, including inaccurate or flawed data, Licensee shall destroy any data file or dataset provided by Licensor that is the subject of a data retraction notice issued by Licensor to Licensee. Licensee shall promptly certify in a signed writing its compliance with this paragraph with respect to any data file or dataset upon Licensor’s reasonable request.

—Cooperation with Investigations and Reports. Licensee shall reasonably cooperate in any investigation or report conducted by Licensor regarding any alleged or actual unauthorized use, reuse, or disclosure of data provided by Licensor to Licensee, as well as in any proposed resolution of any problems identified by such an investigation or report.

—Safeguarding Data. Licensee shall use commercially reasonable efforts to safeguard data provided by Licensor to prevent any unauthorized party from accessing the data.

—Transmitting of Information. Licensed Data from Licensor will be transmitted to Licensee over a medium that may be beyond the control and jurisdiction of Licensor and its Licensees and suppliers. Accordingly, neither Licensor nor any of its Licensees or suppliers assume any liability for or relating to the delay, failure, interruption, or corruption of any data or other transmitted information.

—Entity Clarification. Licensor is not acting as a “business associate” (as that term is defined in 45 CFR 160.103) of any person or entity in connection with this site or the use of any data obtained from this site by such person or entity. Licensor is not operating this site for the purpose of providing any services to any “health care provider” (as defined in 45 CFR 160.103) or any “health plan” (as defined in 45 CFR 160.103).

—Use of Websites. Licensee will not use any of Licensor’s websites in any manner that could harm, infect, take over, disable, overburden or otherwise impair any of the computer systems used for the sites, including the servers, networks, or other components connected to or used for this site.

—Responsibility for Personnel. Licensee shall ensure that its employees, agents, and service providers who have access to data provided by Licensor observe and comply with the terms and conditions of this Agreement. Licensee shall be solely responsible to Licensor for the observance and compliance with all terms and conditions of this Agreement by Licensee’s employees, agents, and service providers.

—Disclaimer of Warranties. EXCEPT FOR THOSE EXPRESS WARRANTIES AND REPRESENTATIONS MADE BY LICENSOR IN A SEPARATE SIGNED WRITING, LICENSOR DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING DATA PROVIDED BY LICENSOR TO CUSTOMER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY, AND CUSTOMER MAY NOT RELY UPON SUCH INFORMATION OR ADVICE.
ALTHOUGH LICENSOR USES GOOD FAITH EFFORTS TO PROVIDE ACCURATE, RELIABLE DATA TO CUSTOMER, LICENSOR, FOR ITSELF AND ON BEHALF OF ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT ANY DATA PROVIDED BY LICENSOR ARE ACCURATE OR ERROR-FREE.

—Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, ITS AFFILIATES, OR ITS LICENSORS, OR ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR CONTRACTORS, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), NOR FOR ANY DAMAGES ARISING FROM DELAY; LOSS OF GOODWILL; LOSS OF, DAMAGE TO, OR INTERRUPTION OF DATA OR NETWORKS; LOST PROFITS, REVENUE, OR SAVINGS (ACTUAL OR ANTICIPATED); OTHER ECONOMIC LOSS IN CONNECTION WITH OR ENSUING FROM USE OF DATA PROVIDED BY LICENSOR; OR INABILITY TO USE DATA PROVIDED BY Licensor, EVEN IF CUSTOMER OR SUCH THIRD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.

—Precedence and Modification. The provisions of this Agreement shall control over and supersede with respect to any contradictory or ambiguous provisions, or the lack of specific provisions, in any other agreement, statement of work, order, or other understanding between the Parties relating to data provided by Licensor to Licensee and all other subject matter of this Agreement. Further, this Agreement supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to data provided by Licensor to Licensee and all other subject matter covered by this Agreement. The terms of this Agreement shall not be modified except by a writing signed by an authorized representative of both Parties.

—Scope and Survival. Irrespective of the expiration or termination of any other agreement or understanding between the Parties, this Agreement shall apply to all data provided by Licensor to Licensee for as long as Licensor provides data to Licensee and until Licensee certifies in writing that it has destroyed all such data.

—Severability. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any court of competent and appropriate jurisdiction, then such provisions are waived to the extent necessary for this Agreement to be otherwise enforceable.

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