HomeMy WebLinkAboutContract #: 1587 - From: 06-30-2022 To: 06-30-2023 - PSNI - School P TM
Professional Software for Nurses,Inc.
Service Level Agreement
This Service level Agreement("Agreement")made between Professional Software for Nurses,
Inc. ("PSNI") with Its principal address at 4 Limbo Lane, Amherst, NH 03031 and the Customer (as
defined below).This Agreement,Including the attached Schedule(s),Is effective on the date that both
parties have signed this Agreement(the"Effective Date").
WHEREAS PSNI is the exclusive licensee of SNAP Health Center EHR Software as further
described In Schedule B hereof and has the full right and authority to further license the service(defined
below)to Customer,and
WHEREAS PSNI desires to make the Service (defined below) available online as described In
Schedule B,on the terms and subject to the conditions set forth herein;and
WHEREAS the Customer,as a licensee of the Service,desires to utilize the Service on the terms
and conditions set forth in this Agreement.
1. Definitions.The following definitions(and additional definitions provided below)will apply:
1. "Activation Date"is defined in Section 24.1.
2. "Breach" means the handling of Customer Data without authorization,beyond the scope
of authorization, or In a manner or to an extent that compromises Customer Data or
violates applicable law.A Breach does not Include the handling of Customer Data that is
encrypted. A Breach also does not include (a)the unintended or good faith handling of
Customer Data by an employee of PSNI related to providing Services to the Customer or
(b)the disclosure of Customer Data by an employee of PSNI to another employee of PSNi,
as long as the Customer Data Is not otherwise further handled without authorization,
beyond the scope of authorization,or In a manner or to an extent that compromises the
Customer Data or violates applicable law.
3. "Customer" means the legal entity or Individual that enters Into this Agreement as
described on the Signature Page.
4. "Customer Data"means data,information or material provided or submitted by Customer
or any User to PSNI In the course of utilizing the Service. Customer Data specifically
excludes De-ldentified Data(as defined in Section 10.2.1).
5. "Customer Representative" means the Users designated by Customer as authorized to
create User accounts, administer Customer's use of the Service and otherwise represent
Customer for the purpose of this Agreement.
6. "Pricing Schedule"means Schedule A to this Agreement.
7. "PSNI Content" means PSNI supplied text, audio, video, graphics and other Information
and data related to or available by means of the Service or on PSNI's web site,including
Information and data created,developed, or structured by PSNI to store,save,evaluate,
compare,or analyze Customer Data.
8. "Service" means PSNI's online service as described In Schedule B and applicable
documentation on PSNI's web site.
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9. "Term"means the term of this Agreement as specified In Section 24.
10. "User" means one of Customer's employees,representatives,consultants,contractors or
agents and other persons expressly permitted by Customer In connection with Customer's
business affairs who are authorized to use the Service and have been supplied User
Identifications and passwords by PSNI at Customer's request.
2. Customer Use of the Service
1. PSNI grants Customer a non-exclusive,non-transferable(except as expressly permitted In
this Agreement)right to access and use the Service during the Term via the Internet under
and subject to the terms of this Agreement. PSNI will host the Service. PSNI reserves the
right to make changes and updates to the functionality and/or documentation of the
Service from time to time.
2. Customer Is permitted during the Term to store,print,and display the PSNI Content and
to permit Users to access it only In connection with use of the Service. No other use of
PSNI Content Is permitted. Customer will maintain and will require Its Users to maintain
PSNi Content as Confidential information(as defined below)of PSNI.
3. Number of Authorized Users
L Customer Is Initially authorized to permit use by the number of Users listed In the Pricing
Schedule.Customer,by Its Customer Representative, may add to the number of Users by
contacting PSNI customer support by email or phone. Customer will be bound by the
instructions and authorizations provided by its Customer Representative.
4. Fees Generally
L In consideration for the Service provided by PSNI to Customer, Customer agrees to pay
PSNI the fees as set forth In the Pricing Schedule (Schedule A) or as PSNI and Customer
otherwise agree in writing. In the event of a conflict between the Pricing Schedule and
another document or writing with respect to the fees payable under this Agreement,the
most-recent-in-time mutually agreed-upon writing(whether It Is the Pricing Schedule or
another writing)shall control,and such writing shall be Incorporated herein by reference
If it Is a writing other than the Pricing Schedule.
5. User-Based Fees;Payment
1. Subject to the fee structure and calculations stated In the Pricing Schedule, license fees
are due for the Service based on the number of billable Users. Customer shall pay PSNi
the fees as set forth on the Pricing Schedule (the "Fees").A User Is considered billable If
his or her account(with a username and password) Is available for login and use at any
time during the term.Customer agrees that charges will apply for all billable User accounts
including those that have been inactive during the term.
PSNI will Invoice annually for use of the Service at the beginning of the Initial Term (as
defined in Section 24)and at the beginning of each Renewal Term (as defined In Section
24),If applicable.All Invoices for any charges under this Agreement are due and payable
within 15 days of Invoice date and, at any rate, no later than August 31, of each year.
Customer's account will be considered delinquent (In arrears) if payment In full is not
received by the due date specified on the Invoice. Amounts due are exclusive of all
applicable taxes,levies,or duties,and Customer will be responsible for payment of all such
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amounts.All amounts are payable In U.S. dollars. If Customer believes that any specific
charge under this Agreement is incorrect, In order to obtain a credit, Customer must
contact PSNI In writing within 30 days of Invoice date setting forth the nature and amount
of the requested correction;otherwise Invoices are final.
6 Non-Payment
I In addition to other applicable remedies, PSNI reserves the right to suspend and/or
terminate Customer's access to the Service and/or terminate this Agreement, upon five
days'email notice,If Customer's account becomes delinquent(falls into arrears).
7. Account Information Submitted to PSNI
I Customer agrees to provide PSNI in writing with billing and contact information as PSNI
may reasonably require,Including Customer's legal company name,street address,email
address, and name and telephone number of an authorized billing contact,as well as the
name,User name and password of the Customer Representative.Customer is allowed one
extra logon-name (substitute, temporary users) for every two purchased user licenses.
Customer agrees to update this Information promptly In writing to PSNI and in any case
within 15 days,If there is any change.
8 Appropriate Use of the Service
of the Service
1. While Users may be any persons that Customer authorizes to use the Service for Its
business, Including, but not limited to, Customer's employees and contractors,
Customer may not sublicense,resell or supply the Service for use in or for the benefit of
any other organization, entity, business, or enterprise without PSNI's prior written
consent.
2 Customer's number of simultaneous users accessing the software at the same time is
limited to the number of purchased user licenses.
3. Customer agrees not to submit to the Service any material that Is illegal, misleading,
defamatory, indecent or obscene, In poor taste, threatening, infringing of any third-
party proprietary rights, Invasive of personal privacy, or otherwise objectionable
(collectively "Objectionable Matter"). Customer will be responsible to ensure that its
Users do not submit any Objectionable Matter. In addition, PSNI may, at its option,
adopt rules for permitted and appropriate use and may update them from time to time
on the PSNI web site;Customer and Customer's Users will be bound by any such rules.
PSNI reserves the right to remove any Customer Data that constitutes Objectionable
Matter or violates any PSNI rules regarding appropriate use,but is not obligated to do
so. Customer and Customer's Users will comply with all applicable laws regarding
Customer Data,use of the Service and the PSNI Content,including laws involving private
data and any applicable export controls. PSNI reserves the right to terminate this
Agreement for cause in case the Customer materially breaches the provisions of this
Section.
4. PSNI reserves the right to suspend or terminate immediately any Customer or User
account or activity that is disrupting or causing harm to PSNI's computers, systems or
Infrastructure or to other parties, or Is In violation of state or federal laws regarding
"spam," including,without limitation,the CAN-SPAM Act of 2003.Any such spamming
activity by Customer will be a material breach of this Agreement.
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9. Passwords and Access
L Customer is responsible for all activities that occur under Customer's User accounts.
Customer is responsible for maintaining the security and confidentiality of all User
usernames and passwords. Customer agrees to notify PSNI immediately of any
unauthorized use of any Service username or password or account or any other
known or suspected breach of security.
10. Customer Data
L Ownership and Data Quality
1. All Customer Data submitted by Customer to PSNi,whether posted by Customer or
by Users, will remain the sole property of, as applicable, Customer, such Users,
and/or any applicable third-party providers.
H. Customer shall bear sole responsibility for the accuracy, quality, Integrity, legality,
reliability,appropriateness of all Customer Data submitted to PSNI.
111. Customer hereby represents,warrants,and covenants to PSNI that Customer owns
or otherwise has and will have the necessary rights and consents in and relating to
the Customer Data so that, as received by PSNi and processed In accordance with
this Agreement, they do not and will not Infringe, misappropriate, or otherwise
violate any Intellectual property rights or any privacy or other rights of any third party
or violate any applicable law.
2 PSNI Use Restrictions
1. Subject to the terms and conditions of this Agreement, PSNI may develop de-
Identified data from Customer Data and use such de-identified data("De-Identified
Data")for product development,research,or other purposes.De-Identifled Data will
have all direct and indirect personal Identifiers removed. This Includes, but is not
limited to, name, ID numbers, date of birth, demographic Information, location
Information, and school ID. Further, PSNI agrees not to attempt to re-Identify De-
Identified Data and not to disclose De-Identlfled Data to any third party.De-Identlfied
Data will be used solely for PSNi's Internal use. De-identified Data is specifically
excluded from the definition of Customer Data.
11. PSNI will not mine customer data for any purposes other than those agreed to by the
parties. Data mining or scanning of user content for the purpose of advertising or
marketing to students or their parents Is prohibited.
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Iv. PSNI will not use Customer Data to advertise or market to students or their parents.
PSNI will handle Customer Data only in accordance with this Agreement.In doing so,
PSNI will handle only the minimum amount of such Customer Data necessary to
perform Services and for other permitted purposes set forth herein,and PSNI shall
not permit any person to handle such Customer Data If that person Is not authorized
to do so. PSNI may disclose such Customer Data to employees of PSNI only if
necessary for PSNI to perform the Services or for such other permitted purposes.
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21. Limited License to Customer Data
11.1 Subject to the terms and conditions of this Agreement, Customer grants to PSNI a non-
exclusive license to use, copy, store, transmit and display Customer Data to the extent
reasonably necessary to provide and maintain the Service.
12. PSNI's Ownership
12.1 PSNI and Its suppliers retain all rights in the Service and PSNI Content, Including PSNI's
information, data, and software structures related to storing, saving, evaluating,
comparing,and analyzing data,including Customer Data,and all related means thereof.
This Agreement grants no ownership rights to Customer. No license is granted to
Customer; Customer has a right to access and use the Service In accordance with this
Agreement.The PSNI name,the PSNi logo, and the product names associated with the
Service are trademarks and/or service marks of PSNI or third parties,and they may not be
used without PSNI's prior written consent.
13. Security Measures
L PSNI will use commercially reasonable security measures to protect Customer Data
against unauthorized disclosure or use, as set forth herein. A copy of PSNI's security
policies in effect from time to time shall be provided to the Customer at the Customer's
request
2. PSNI will maintain physical, technological, and administrative safeguards protecting all
Customer Data in compliance with applicable law.
3. PSNI shall handle Customer Data using only information systems and electronic devices
(1)owned by PSNI,(1i)maintained in a secure facility controlled by PSNI In the United
States,(111)using up-to-date commercially reasonable software and security systems,
Including f€rewali,anti-virus,anti-malware,and anti-spyware software,(Iv)with
software and security systems that detect multiple failed attempts to log-on and disable
the account being used to attempt to log-on,and(v)Implementing unique strong
usernames and passwords.
4. PSNI shall transmit Customer Data by email,file transfer protocol,or other means of
digital,analog,or electronic transmission only If the entire transmission or the personal
information contained therein is encrypted.PSNI shall transport Customer Data In
electronic format only If the electronic device used for the transportation,or the
Customer Data being transported, Is encrypted.This Section 13.4 applies only to
transmissions of Customer Data initiated by PSNI.Customer acknowledges that PSNI has
no control over how other parties,including Customer,may choose to transmit data to
PSNI.
5. PSNI shall store any Customer Data In hard copy format,during non-working hours,only
In a locked filing cabinet or similar equipment or room at a secure facility controlled by
PSNI in the United States. PSNI shall print or otherwise render or generate Customer
Data In hard copy format only If and to the extent doing so is necessary to perform the
Services,
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6. PSNI shall not dispose of or destroy any Customer Data without express written
authorization from the Customer.PSNI shall dispose of any Customer Data In hard copy
format only in a manner that renders it essentially unreadable and Indecipherable,
such as by shredding,burning,or pulverizing.
7. PSNI shall conduct periodic assessments to determine what Customer Data PSNI has,
whether PSNI Is subject to any new,additional,or reoccurring risks to such Customer
Data,and whether PSNi should implement any new or additional measures to
mitigate such risks and,if so,the measures that PSNI should implement.
8 PSNI shall maintain a written data security policy and shall provide such policy to the
Customer at the Customer's request.
9. PSNI shall maintain,and test periodically,an incident response plan and a
commercially reasonable disaster recovery system and plan that Includes the
Customer Data.
a Breach
PSNI shall notify the Customer of any known,suspected,or threatened,Breach of Customer Data
within PSNI's possession,custody,or control without unreasonable delay,and in no event later
than any deadline for such notification prescribed by applicable law,after PSNI's first receipt of
information related to such Breach. At the time of such initial notification and continuing
thereafter, PSNI shall fully disclose to the Customer any and all information that PSNI has or
receives concerning such Breach,including the following types of information:
(a)names and all other information available about any and all persons affected by the Breach;
(b)the nature and scope of any and all Information compromised or potentially compromised in
the Breach or as a result of the Breach; (c)timing,manner,and cause of the Breach;and(d)any
and all acts taken in response to such Breach. PSNI shall provide the Customer with any and all
assistance and cooperation reasonably requested by the Customer related to any Breach of
Customer Data, and shall follow and comply with any and all reasonable requests made and
instructions provided by the Customer related to such Breach. Except to the extent legally
compelled,PSNI shall not disclose to any person,other than its attorneys and the Customer,any
Information related to any known,suspected, or threatened Breach of Customer Data without
prior express authorization from the Customer.
15. Restrictions on Use of the Service
Customer may not alter, resell or sublicense the Service or provide It as a service bureau.
Customer agrees not to reverse engineer the Service or Its software or other technology.
Customer will not use or access the Service to:(1)build a competitive product or service,(11)make
or have made a product using similar ideas,features,functions or graphics of the
Service,(111)make derivative works based upon the Service or the PSNi Content or(Iv)copy any
features,functions or graphics of the Service or the PSNI Content.Customer will not"frame"or
"mirror"the Service. Use, resale or exploitation of the Service and/or the PSNI Content except
as expressly permitted In this Agreement Is prohibited.
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16. Pri_ vary
I PSNI's privacy policies,as In effect from time to time,can be accessed on PSNI's web site
[www.cloud.snaphealthcenter.com]. PSNI reserves the right to modify its privacy and
security policies from time to time in its business judgment and as it deems required for
compliance with applicable law.The publicly-accessible privacy policies on PSNI's website
are a general privacy policy and may be superseded by provisions of this Agreement.To
the extent any conflict exists between this Agreement and such privacy policies, this
Agreement shall prevail.
2 PSNI may,from time to time, contact Users (excluding students and their parents)who
have logged on to the Service at least once In the 90 days preceding such communication,
at the contact Information stored in Users'profiles or otherwise supplied by Customer or
Users(Including as part of Customer Data),for the permissible purposes set forth below.
Users will have the option to opt out of such communications.Such permissible purposes
Include:
1. Updates, alerts, reminders, and other Information about events that may affect a
User's use of the Service or otherwise related to the Service;and
11. Advertising, marketing, promotional, and other Informational material related to
other products or services offered by PSNI or any of its partners or affiliates.
17. Warranty Regardlne the Service
a. PSNI warrants that the Service will perform in all material respects to the functionality as
described In applicable online user documentation available as part of the Service via PSNI's
web site.
I& Scheduled Maintenance;Service Level Commitment,Technical Support
1 PSNI will periodically schedule the complete or partial shutdown of the Service for
maintenance, bug fixes, upgrades, or other reasons ("Scheduled Maintenance").
Scheduled Maintenance will be Implemented In such a way as to minimally interrupt the
use of and the access to the Service by Customer under this Agreement.PSNI shall provide
Customer with email notice 48 hours In advance any Scheduled Maintenance that will
disable the Service for more than three consecutive hours.PSNI may perform emergency
maintenance services at any time during the Term of this Agreement without prior notice
to Customer.
2 PSNI will provide access to the Service for Customer on a twenty-four hour a day,seven
days a week (247) basis, except for Scheduled Maintenance and except for any
downtime, delays, loss or Interruption of hosting services which are caused by
telecommunications or network service providers outside of PSNI's firewall, a Force
Majeure Event (as deflned in Section 30.6), or interruptions or failures caused by
Customer or the equipment or facilities utilized by Customer. PSNI does not provide any
guarantee of up time of the Service or refunds for any downtime of the Service.
3. During the Term,PSNI shall provide technical support to Customer for SNAP Health Center
and all optional software hosted on PSNI servers.Telephone (toll free in U.S.) and email
technical support available Mon through Fri from 7:30 AM - 6;00 PM Eastern Time
excluding federal holidays
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19. Additional Warranties
Each party represents and warrants that it has the legal power and authority to enter into this
Agreement.Customer represents and warrants that it has not falsely Identified itself or provided
any false Information to gain access to the Service and that Customer's billing information is
correct.
2b. Professional Services
1. Customer may retain PSNI to perform professional services ("Professional Services") as
the parties may agree upon in writing In the form of a work order or other writing("Work
Order"). PSNI will use reasonable efforts to carry out the Professional Services stated In
the Work Order and to provide any resulting functionality in the Service made available
online to Customer and Customer's Users.Except as the parties otherwise agree in a Work
Order,Professional Services and the results thereof are made available"AS IS."
2 Unless otherwise agreed In writing in the Work Order, Professional Services are provided
by PSNI on a time and materials basis at PSNI's then applicable rates and subject to such
deposit or advance payment as PSNi may require. Maintenance and support of code or
functionality created by means of Professional Services will likewise be on a Work Order
basis under this Section unless otherwise agreed in writing. The code and functionality
made or provided under this Section and all Interests therein,including copyrights,will be
PSNI's property.Access to the results of Professional Services will be available as part of
the Service during the Term unless otherwise agreed In writing.The Initial Work Order(if
any)is attached as Schedule C.Unless otherwise agreed in a Work Order,PSNI may bill for
Professional Services on a weekly or monthly basis,at Its discretion.
2L Indemnification
L PSNI will defend, Indemnify, and hold Customer (and Its officers, directors, employees
and agents) harmless from and against all costs, liabilities, losses, and expenses
(including reasonable attorneys'fees)(collectively,"Losses")arising from any third party
claim, suit, action, or proceeding arising from: (1) the actual or alleged Infringement of
any United States copyright,patent,trademark,or misappropriation of a trade secret by
the Service or PSNI Content(other than that due to Customer Data); provided,however,
that PSNI will not provide indemnification if the Loss or Losses were caused by alteration
of any Software, PSNI Content, or other component of the Service by anyone except
PSNI, or use of Software, PSNI Content, or other component of the Service by anyone
not authorized by PSNI, in combination with unauthorized software or other materials,
or in a manner that does not comply with the applicable documentation; or (11) PSNI's
grossly negligent or intentional acts or omissions in its performance of this Agreement.
Customer shall promptly notify PSNI of such a claim.In case of such a claim under Section
21.1(a), PSNI may, in its discretion, (a) procure a license that will protect Customer
against such claim without cost to Customer, (b) replace the Service with a non-
infringing Service, or (c) if PSNI deems such remedies not practicable, PSNI may
terminate the Service and this Agreement without fault. THIS SECTION STATES
CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS
ALLEGING INFRINGEMENT.
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2. Customer will defend, indemnify, and hold PSNI (and its off!GeFs, dire6tors, employees and
agents) harmless from. and against all Losses arising out of or in connectlan h -a , I
adlen, or preGeed!Ag by a third party (i) alleging that the Customer [;iata or otheF data or
3. GustemeF will defend, Indemnify, and hold PSNI (and its offiGeFs, dir-erters, emplayees and
legal ordeF eF proress that seeks GustomeF Data and/oF other custenner-re-lated Informatler;or.
data, InGluding, without Ilmitation, PFOMpt payment to 12011 of all co-Sts (InGluding attorneys'
-akso agrees to pay PSNI for its staff time In responding to such thiFd-paky subpoena
4. In case of any claim that Is subject to indemnification under this Agreement, the party that is
Indemnified ("Indemnitee")will provide the indemnifying party("Indemnitor") prompt written
notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any
demand,action,orsult on anyclaim subject to Indemnification underthis Agreement.Each party
will cooperate in good faith with the other to facilitate the defense of any such claim and will
tender the defense and settlement of any action or proceeding covered by this Section to the
Indemnitor upon request.Claims may be settled without the consent of the Indemnitee,unless
the settlement includes an admission of wrongdoing,fault or liability or subjects Indemnitee to
restrictions on its business.
22. Disclaimers; Limitations of Liabilities
1. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE
WARRANTIES OFFERED BY PSNI. THERE ARE NO OTHER WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS STATED IN
SECTIONS 17, 18,19,AND 20 ABOVE,THE SERVICE AND PSNI CONTENT ARE PROVIDED TO
CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS. CUSTOMER ASSUMES ALL
RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION
GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER'S PURPOSES. PSNI
DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR- FREE OR
UNINTERRUPTED. PSNI IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY
CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
2 The Service may Include gateways, links or other functionality that allows Customer
and/or Users to access third party services ("Third Party Services") and/or third-party
content and materials ("Third Party Materials"). PSNI does not supply and is not
responsible for any Third-Party Services or Third-Party Materials,which may be subject to
their own licenses, end-user agreements, privacy and security policies, and/or terms of
use. PSNI MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD-PARTY
MATERIALS.
3. The parties expressly recognize that, although PSNI shall take commercially reasonable
steps to prevent security breaches,it is impossible to maintain flawless security.PSNI shall
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not be liable for any damage caused by unauthorized destruction, loss, interception,
disclosure, or alteration of any Customer Data by unauthorized persons, unless such
unauthorized destruction, loss, Interception, disclosure, or alteration Is caused by the
gross negligence(or more culpable act or omission)of PSNI or its agents,representatives,
officers,or employees.Except In the event of unauthorized destruction,loss,Interception,
disclosure,or alteration of Customer Data caused solely by the gross negligence(or more
culpable act or omission) of PSNI or its agents, representatives, officers, or employees,
Customer shall not make any claim against PSNI for lost data, re-run time, inaccurate
input,or work delays resulting from Customer's use of the service,
4. EXCEPT AS OTHERWISE PROVIDED IN SECTION 22.6, BELOW, IN NO EVENT WILL EITHER
PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT
MATTER UNDER ANY LEGAL OR EQUITABLE THEORY,INCLUDING BREACH OF CONTRACT,
TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY,AND OTHERWISE, FOR ANY: (a) LOSS
OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b)
IMPAIRMENT,INABILITY TO USE OR LOSS,INTERRUPTION OR DELAY OF THE SERVICES;(c)
LOSS,DAMAGE,CORRUPTION OR RECOVERY OF CUSTOEMR DATA, OR BREACH OF DATA
OR SYSTEM SECURITY;(d)COST OF REPLACEMENT SERVICES; (e) LOSS OF GOODWILL OR
REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL,
ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR
DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF
ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
5. EXCEPT AS OTHERWISE PROVIDED IN SECTION 22.6, BELOW, IN NO EVENT WILL THE
AGGREGATE LIABILITY OF PSNI ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED
THE TOTAL LICENSE FEES PAID TO PSNI UNDER THIS AGREEMENT IN THE ONE
(1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING
LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6. The exclusions and limitations in Sections 22.4 and 22.5, above, do not apply to: (1)
Customer's payment obligations under this Agreement; (11) Customer's breach of
Sections 8(Appropriate Use of the Service),9(Passwords and Access)or 10.1 (Customer
Data); (III) either party's Indemnification obligations under Section 21, above; and (iv)
PSNI's obligations resulting from its grossly negligent or more culpable act or omission,
under Section 22.3,above.
23. Confidentiality
1. "Confidential Information"means non-public information,technical data or know-how of
a party and/or its affiliates, which is furnished to the other party In written or tangible
form in connection with this Agreement.Oral disclosure will also be deemed Confidential
Information if It would reasonably be considered to be of a confidential nature or If It is
confirmed at the time of disclosure to be confidential.
2. Notwithstanding the foregoing, Confidential Information does not include information
which Is: (1)already In the possession of the receiving party and not subject to a
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confidentiality obligation to the providing party; (11) independently developed by the
receiving party;(ill)publicly disclosed through no fault of the receiving party,(iv)rightfully
received by the receiving party from a third party that Is not under any obligation to keep
such Information confidential; (v) approved for release by written agreement with the
disclosing party;or(v1)disclosed pursuant to the requirements of law,regulation,or court
order, provided that the receiving party will promptly Inform the providing party of any
such requirement and cooperate with any attempt to procure a protective order or similar
treatment.
3. Neither party will use the other party's Confidential Information except as reasonably
required for the performance of this Agreement. Each party will hold In confidence the
other party's Confidential information by means that are no less restrictive than those
used for Its own confidential materials.Each party agrees not to disclose the other party's
Confidential Information to anyone other than Its employees or subcontractors who are
bound by confidentiality obligations and who need to know the same to perform such
party's obligations hereunder.The confidentiality obligations set forth In this Section will
survive for three(3)years after the termination or expiration of this Agreement.
4. Upon termination or expiration of this Agreement,except as otherwise agreed in writing
or otherwise stated In this Agreement,each party will,upon the request of the disclosing
party,either:(1)return all of such Confidential Information of the disclosing party and all
copies thereof In the receiving party's possession or control to the disclosing party;or(11)
destroy all Confidential Information and all copies thereof In the receiving party's
possession or control.The receiving party will then,at the request of the disclosing party,
certify in writing that no copies have been retained by the receiving party,Its employees
or agents.
S, In case a party receives legal process that demands or requires disclosure of the disclosing
party's Confidential Information,such party will give prompt notice to the disclosing party,
If legally permissible,to enable the disclosing party to challenge such demand.
24. Term and Termination
The Term commences on the"Effective Date."The"Activation Date"will be the date that
PSNi first makes the Service available to Customer to accept student demographic flies
and provides email or written notice of such availability to Customer.
he u r P ..fr: te:°mlinafe,WL gr 6fg�o�mt se.. i�..,w ,. y� i�a�iaM �Iin which case.
the_customer w0l,o l py e1 nslbiLf_! XW 4pyn es Incurred L!L the,,date o not
ice,'
ti
of termination.
The initial term of this Agreement("Initial Term")will begin on the Effective Date and will
end on August 31 of the calendar year following the Effective or Renewal date. This
Agreement will automatically renew for successive one-year periods (each a "Renewal
Term") beginning at the end of the initial Term, unless Customer selects the Annual
Reissue Required option on the signature page herein to opt-out of automatic renewal,or
provides notice of termination not less than 60 days before the end of the initial Term or
current Renewal Term,as applicable.Applicable pricing,Including annual minimum fees,
will continue unchanged from the previous term unless PSNI notifies Customer of changes
In pricing at least 30 days prior to the expiration of the Initial Term or current Renewal
Term,as applicable.PSNi reserves the right to terminate this Agreement for convenience
not less than one year's notice.
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4. PSMI,In its sole discretion,may suspend or terminate Customer's username and password,
account,or use of the Service and/or terminate this Agreement if Customer materially
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breaches this Agreement and such breach has not been cured within 10 business days of
notice of such breach.
5. In the event that this Agreement is terminated(for any reason),PSNI will,within 30 days
of a Customer's request,make available export health records for each student in PDF or
other common file type.The customer data will be made available for download for 30
days following the customer notice of availability, after that date the file and databases
will be deleted from PSNI servers. An optional export database can be provided at
Customer request for an additional per student per year charge. Customer agrees and
acknowledges that PSNI has no obligation to retain and may delete Customer Data that
remains In PSNI's possession or control more than 60 days after termination.
6. Any termination by Customer prior to the end of the Initial Term or any Renewal Term will
not result Is a refund of any fees or other pending charges.
z The following provisions will survive termination: all definitions, Customer's accrued
financial obligations, the license to Customer Data to the extent reasonable for PSNI's
discharge of Its post-termination obligations,and the following Sections and paragraphs:
1(Definitions),6.2(Overdue Payments),10.1(Customer Data),12(PSNI's Ownership),13
(Restrictions on Use of the Service),21(indemniflcation),22(Disclaimers and Limitations),
23 (Confidentiality), 24.6 (Survival of Provisions), 26 (Notice), 28 (Governing Law,
Jurisdiction;Venue);29(Non-Solicitation),and 30(Miscellaneous).
8. Clients may request the following services upon termination (service fees apply):
€. Export database(MSSQL)for transfer of student data to another software
program.
1€. PSNI to retain a copy(DVD)of the student data for a period of not more than5
years.
25. Regulatory Compliance
Customer represents that It,or the school or educational Institution or agency for which Customer is an
employee or agent,receives funds from the United States Department of Education.PSNI represents
and warrants that it will comply with the data security requirements of the i:amily Educational Rights
and Privacy Act
26. Notice
("FERPA").Customer further represents and warrants that it Is not considered to be a"covered
entity" under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). If
Customer does not receive funds from the Department of Education and If Customer is
considered a covered entity under HIPAA,then PSNI will be considered a"business associate"
under HIPAA,be required to comply with HIPAA,and the parties will be required to enter Into
a business associate agreement pursuant to HIPAA.
PSNI may give notice by means of electronic mail to Customer's email address on record in
Customer's account or by written communication sent by first class mail or by courier service to
Customer's address on record in Customer's account.Such notice will be deemed to have been
given upon the expiration of 36 hours after mailing(if sent by first class mall)or sending by
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Professional Software for Nurses,Inc.
courier or 12 hours after sending(if sent by email),or,If earlier,when received.Customer may
give notice to PSNI by email to Info@promedsoftware.com.A party may,by giving notice,change
its applicable address,email,or other contact Information.
Customer shall designate a contact person within Its organization who shall serve as PSNI's
primary contact in the event of a Breach of Customer Data that requires notification to the
Customer. Customer shall keep the name and contact information of such designated contact
person up-to-date.In the event PSNI is unable to reach such designated contact person during a
breach notification event, PSNI shall be deemed to have satisfied its breach notification
obligations by providing such notification by any one of the methods of giving notice set forth in
the first paragraph of this Section 26,above.
77. Assignment
This Agreement may not be assigned by Customer without the prior written approval of PSNI but
may be assigned by PSNI with written notice to Customer to(1) a parent or subsidiary, (ii) an
acquirer of all or substantially all of PSNI's assets Involved in the operations relevant to this
Agreement, or (111)a successor by merger or other combination.Any purported assignment In
violation of this Section will be void. This agreement may be enforced by and is binding on
permitted successors and assigns.
28. !governing Law;Jurisdiction;Venue
This Agreement shall be construed and enforced in accordance with,and the rights of the parties
shall be governed by, the laws of the State--94 •Nt: �,Wafopshire )Tyimonwealt:l;— of
M assachusetts, without regard to conflict of laws principles. Each of the parties to this
Agreement Irrevocably consent to the jurisdiction of the courts of the
a Ise M tth,.pf IlA s chusetts and the United States District Court for the District
of l e S S )mq,Sp as well as to the jurisdiction of all courts to which an appeal
may be taken from such courts,for the purpose of any suit,action or other proceeding arising
out of any of their obligations hereunder or with respect to the transactions contemplated
hereby. Each of the parties to this Agreement expressly agree to submit to the Jurisdiction of
such courts for the purposes of resolving any dispute between the parties and waive any and all
objections they may have to venue in such courts.
29. Non-Solicitation
During the Term of this Agreement and for a period of one year thereafter, Customer will not,
and will ensure that its affiliates will not,directly or Indirectly.(1)solicit for employment or for
performance of any services any person employed by PSNI or(11)hire or engage for any services
any person employed by PSNI.
M Miscellaneous
L Severability. if any of the provisions of this Agreement,or portions thereof,are declared
under statute or applicable law to be invalid or unenforceable,it will be adjusted rather
than voided,if possible,to achieve the intent of the parties. Otherwise,this Agreement
shall be construed and enforced as if such Illegal,invalid or unenforceable provision had
never comprised a part of this Agreement and the remaining portions of this Agreement
shall remain In full force and effect and shall not be affected by the Illegal, invalid or
unenforceable provision or by Its severance here from.Furthermore,in lieu of such Illegal,
invalid or unenforceable provision, there shall be added automatically as part of this
Agreement,a provision as similar in terms to such Illegal,invalid or unenforceable
Confidential 101Page JA U RY2022
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Professional Software for Nurses,Inc.
provision as may be possible, legal,valid and enforceable,and if it is not possible to add
such a provision,the parties agree to attempt to negotiate an amendment that carries out
the economic intent of the provision(s)found Invalid or unenforceable.
2. No Agency. No joint venture, partnership, employment, or agency relationship exists
between Customer and PSNI as a result of this Agreement or use of the Service.
3. No Waiver.The failure of PSNI to enforce any right or provision In this Agreement will not
constitute a waiver of such right or provision unless acknowledged and agreed to by PSNI
In writing.
4. Headings.The captions of the sections of this Agreement are for convenience of reference
only and in no way define, limit or affect the scope or substance of any section of this
Agreement.
5. Force Majeure. Except for the Customer's payment obligations,if the performance of this
Agreement by either party is prevented, hindered, delayed or otherwise made
impracticable by reason of any flood, riot, fire, judicial or governmental action, labor
disputes,act of God or any other causes beyond the control of such party,that party will
be excused from such to the extent that it is prevented, hindered or delayed by such
causes.This Section does not relieve either party from any liability under this Agreement
(or at law)from negligent or willful acts or failures by such party.
6. Entire Agreement.This Agreement,together with any applicable Schedules,comprises the
entire agreement between Customer and PSNI and supersedes all prior or
contemporaneous negotiations, discussions or agreements, whether written or oral,
between the parties regarding the subject matter contained herein.No amendment to or
modification of this Agreement will be binding unless In writing and signed by an
authorized representative of each party.
7. Acknowledgement, By signing this Agreement,the parties to this Agreement acknowledge
that they have read this Agreement, understand It, and intend to fulfill each and every
promise.In addition,each party acknowledges that It has had the opportunity to have the
Agreement reviewed by Independent legal counsel prior to signing the Agreement, and
each party's decision whether to sign this Agreement is its own voluntary decision and
each party agrees to be bound by Its terms and conditions.
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Signed as a binding Agreement by the parties as of the Effective Date:
Professional Software for Nurses,Inc.:
By(Authorized Signatory): _ te: 6 24 2022
Print Name: peer(odes Title:Chief Executive Officer
North Andover
By(Authorized Signatory).,,.,, ��� �° � � Date:
Print Name: ,. Title:�k ei
Street Address:566 Main Street
City,State,Zip:N1gjth Andover,MA 01B45
Country:
Email Address for Contact:
Annual Reissue Required.By signing below,Customer requests to opt-out of automatic renewal of the
present Service Agreement and acknowledges that this Agreement will therefore terminate at the end
of the initial Term under Section 24.
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'i
Schedule A
SAMPLE Pricing Schedule
Service Cost
New user Cloud setup $100 per user one-time fee
SNAP Health Center Software as a Services $800 per user paid annually or as
get contract
Optional Services
Immunization link(selected state registries) $50 per user paid annually
Medicaid Link(to selected third party billing companies) $50 per user paid annually
Health portal $0.50 per student paid annually
Prices subject to change with 30-day notice
I
Service Cost
New user Cloud setup $100 per user one-time fee
SNAP Health Center Cloud Services $225 per user paid annually
SNAP Health Center program maintenance&support $300 per user paid annually or as
per contract
tional Services
Immunization link(selected state registries) $50 Der user paid annually
Medicaid Link(to selected third party billing companies) $50 per user paid annually
Health portal $0.50 per student aid annually
Prices subject to change with 30 day notice
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Schedule 8 Service
Description
1. Software as a Service plan
1. Internet access to SNAP Health Center software.
i. IHP software
R. ISCAT software
2. Access to purchased optional software.
3. Storage and backup of Customer entered data.
4. Program updates
S. Telephone technical support
6. Importing of student demographic Information for selected SIS's
2. Customer Licensed Software plan
7. Internet access to customer licensed SNAP Health Center software
8. Access to customer licensed optional software.
9. Storage and backup of Customer entered data.
10. Program updates
11. Telephone technical support
12. Importing of student demographic information for selected SIS's
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Schedule C
Work Order for Professional Services
None
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