License Agreement

American College of Physicians, Inc.
Product License Agreement and Limited Warranty for
ACP PRACTICE ADVISOR®
Updated: November 8, 2011

The ACP Practice Advisor® is an online program available at www.practiceadvisor.org. ACP Practice Advisor is owned by ACP and is protected by law. This Agreement is a binding legal Agreement between American College of Physicians, Inc. (“ACP,” “Licensor”), the party entering into or executing this Agreement with ACP (“Licensee”), and individuals for whom Licensee has identified to ACP who will be using the Licensed Property pursuant to the terms of this Agreement. (“Registered Users”). This Agreement covers use of all content and features of the ACP Practice Advisor as granted by this Agreement.

 

  1. RIGHTS CONFERRED
    This License grants a non-exclusive, revocable, non-transferable License to the Licensee and associated Registered Users to access the Licensed Property in whole or in part within the terms of this Agreement.

  2. DEFINITION OF LICENSED PROPERTY
    ACP (“Licensor”) is the owner of an Internet-based product referred to in this License Agreement as the “ACP Practice Advisor” (the “Licensed Property”).

  3. GRANT OF LICENSE AND RESTRICTION OF USE
    Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and associated Registered Users, and Licensee, on its, his or her own behalf and the associated Registered Users, hereby accepts, a non-exclusive, revocable, non-transferable license to use the Licensed Property.

    Licensee and/or Registered Users acknowledge and agree that they are not allowed to duplicate or distribute all or any portion of the Licensed Property and are prohibited from making collective or derivative works from all or any portion of the Licensed Property or transferring for consideration any printed or electronic copy of any information or material from all or any portion of the Licensed Property other than through specific features or functions within the Licensed Property (e.g., policy templates, documents/tools specifically designed for customization by Users).

    Licensee and/or Registered Users acknowledge and agree that they may not (a) modify, network, loan, reverse compile, reverse assemble, reverse engineer, disassemble, or otherwise derive source code from the Licensed Property; (b) copy the content, except to make a single copy for archival purposes only and only within the permitted use above; (c) rent or lease the Licensed Property; (d) use the Licensed Property in any manner that infringes the intellectual property or other rights of another party; or (e) transfer the Licensed Property or any copy thereof to another party.

    Licensee and/or Registered Users acknowledge and agree that Licensor may modify the terms of this License Agreement at any time without notice to Licensee and/or Registered Users. Licensee and Registered Users should periodically revisit the Licensed Property to review the then-current terms of this License Agreement. Licensee and/or Registered Users acknowledge and agree that continued use of the Licensed Property constitutes their concurrence and acceptance of any modifications of this Agreement.

  4. LICENSE FEES
    Upon acceptance of the Agreement terms, Licensee shall pay Licensor a non-refundable fee for use of the Licensed Property, in whole or in part, during the Term of this Agreement, payable in U.S. Dollars by credit card for Internet-based purchases or through another mutually acceptable methodology for customized Agreements (i.e., for groups with >200 practice locations) based upon the licensing option selected. The fee is based on one of the two licensing options described below and with the understanding that this Agreement refers to the following anticipated use(s) of the Licensed Property:

    • Basic License:

      • Every Registered User has full access to the content of the Practice Advisor.

      • Every Registered User can review the average score for each ACP Practice Biopsy at the Practice level and compare the practice results to the Practice Advisor Community average.

      • One Practice Administrator can review average results on any ACP Practice Biopsy including current results and past averages at 3, 6, 12, 18, and 24 months previously.

      • One Practice Administrator can drill down to the ACP Practice Biopsy results for each member of the practice.

    • Premium License, which includes all features/functions of the Basic License plus the following:

      • Support for designating multiple Practice Administrators.

      • Provides the ability for Practice Administrators to review the average score across each ACP Practice Biopsy at the Practice level and for each Practice Location and identify results associated with any individual in any location that is part of the practice.

      • Allows a Group Administrator to access the average ACP Practice Biopsy results across all practices part of the group, or a specific module for any practice, any practice location, any individual User in any location.

      • Provides a Group Administrator with the ability to review average results over time (current and 3, 6, 12, 18, and 24 months previously) across all practices part of the group, any practice location, on any ACP Practice Biopsy.

      The price of the Basic License option depends only on the number of clinicians who are going to be using the Practice Advisor. “Clinicians” refers to physicians, nurse practitioners, and physician assistants. While the price is based on the number of clinicians, designated members of the practice (e.g., RNs, LPNs, Medical Assistants, administrative staff, educators) will have access to the Practice Advisor® under the License as additional Registered Users. The Premium License requires payment in addition to the Basic License for the additional features. The fee for the Premium License also depends on the number of clinicians who are going to be using the Practice Advisor, but the price points are in three tiers (<50 clinicians; 51–75 clinicians; 76+ clinicians). The current fees can be found here.

      Additional fees will be required if during the Term, Licensee desires to provide access for additional Clinicians to the Licensed Property above the number of Clinicians for which the original License was purchased at the inception of this Agreement or the Licensee desires to upgrade from a Basic License to a Premium License. It is the responsibility of the Licensee to contact the Licensor through the administrative features within the Licensed Property or by contacting the Licensor via email or phone (practiceadvisor@acponline.org or 202-261-4556) when such amendments to this Agreement are desired.

  5. TERM AND TERMINATION
    This Agreement refers solely to the version 2.0 of the Licensed Property released in July 2011 and is valid for the period of time commencing upon your acceptance of this Agreement and ending 365 days (one year) later (“Term”), unless this Agreement is terminated earlier in accordance with this Paragraph 5. Each License is for a 12-month period with an option to renew on or near the one-year anniversary of the license at the then prevailing license fees for additional periods of one (1) year each of which shall constitute a Term.

    Licensor may terminate this Agreement and the right to access and use Licensed Property by Licensee and associated Registered Users, or any part thereof, at any time, with or without “cause.” If Agreement is terminated without “cause,” Licensor shall provide prorated reimbursement based on the time remaining in the Term.

    Licensee may terminate this Agreement at any time with written notice to Licensor, provided that in the case of such termination, Licensee shall not be entitled to any refund of the license fees required to be paid pursuant to Paragraph 4.

    1. Either party may terminate this Agreement upon and each of the following shall constitute ”cause”;: (a) any breach by the other party following written notice of said breach and such other party’s failure to cure such breach within thirty (30) days following receipt of such notice including but not limited to any registration abuse by Licensee; (b) upon the other party making a general assignment of substantially all of its assets for the benefit of its creditors; or (c) upon the filing of a petition in bankruptcy or under any insolvency law by or against such other party, which petition is not dismissed within sixty (60) days after it was filed.

    Effects of Termination

    Upon the termination of this Agreement, upon breach of this Agreement by Licensee or associated Registered Users, or at the end of the Term, all rights granted to Licensee and associated Registered Users hereunder with respect to their use of the Licensed Property shall terminate and access to the Licensed Property will be terminated immediately without further notice.

  6. SURVIVAL
    The following sections shall survive any termination or expiration of this Agreement: 5, 7, 9, & 14.

  7. OWNERSHIP OF LICENSED PROPERTY AND RESERVATION OF RIGHTS

    1. Licensee and/or all Registered Users acknowledge and agree that:

      1. Licensed Property is licensed to Licensee and/or Registered Users on an “AS IS” basis without any warranty of any nature including but not limited any implied warranty of merchantability, non-infringement, accuracy and fitness for a particular purpose. The Licensor shall not be liable for any damage or loss of any kind arising out of or resulting from the use of the Licensed Property by Licensee and/or associated Registered Users (including data loss or corruption), regardless of whether such liability is based in tort, contract or otherwise. If the foregoing limitation is held to be unenforceable, the Licensor’s maximum liability shall not exceed the amount of the license fees paid for the Licensed Property.

      2. Subject to Paragraph (b), Licensor hereby represents that: (i) it has full right and authority to grant Licensee and/or Registered Users the license to the Licensed Property and all other rights granted by Licensor hereunder; (ii) to the best of Licensor’s knowledge the Licensed Property does not infringe upon or violate any patent, copyright, license or other property right of a third party; and (iii) to the best of Licensor’s knowledge the Licensed Property is in compliance with all applicable laws and regulations.

      3. Licensor possesses sole ownership of the Licensed Property except where noted (where the Licensed Property provides links to materials in the public domain and/or owned and made publicly available by other entities). The Licensor is not responsible for the content of external links or the use of those external links by Licensee or associated Registered Users. Licensor will make a good faith effort to maintain such external links but cannot guarantee that they will remain current at all times. The provision of links to external web resources from the Licensed Property in no way constitutes formal endorsement of such external content by the Licensor. The Licensee and associated Registered Users agree to abide by any conditions imposed by the owners of the external links.

      4. Except as expressly set forth herein, all rights of whatever nature in and to the Licensed Property are reserved by Licensor including, without limitation, the right to authorize others to license and/or use the Licensed Property.

      5. Licensor reserves the right to discontinue or make changes to the Licensed Property at any time without notification.

    2. Licensee and/or all Registered Users acknowledge and agree that:

      1. Licensee and/or the Registered Users have no right to sub-license the Licensed Property to others free or for a fee; and

      2. Licensee and/or the Registered Users shall acquire no ownership interests and/or rights to the Licensed Property by virtue of this Agreement or otherwise; and

      3. Licensee and/or the Registered Users shall not, during the Term of this Agreement or at any other time thereafter, directly or indirectly, contest or aid others in contesting Licensor’s ownership of the Licensed Property; and

      4. Licensee and/or the Registered Users shall not, during the Term of this Agreement or at any other time thereafter, do anything to impair Licensor’s ownership of, or that may result in adverse impact to, the validity of, or the reputation of the Licensed Property; and

      5. Licensee and/or the Registered Users shall be responsible for advising those to whom the Licensee provides access to the Licensed Property (i.e., associated Registered Users) the conditions of this License Agreement and the authorized uses of the Licensed Property as described under CONDITIONS in Section 8 hereof.

    3. In the event Licensee or associated Registered Users become aware of any infringement by third parties of any right licensed herein, or any other use of the Licensed Property, Licensee shall promptly notify Licensor in writing of such infringement or use, and shall do such acts and assist in supplying such information as is necessary or desirable in relation thereto. Licensor shall take only those steps which, in its sole discretion, are necessary to enforce its rights, including the engagement of legal counsel of its own choosing. Nothing herein shall obligate Licensor to take any action against any allegedly infringing party.

    4. The use of the Licensor’s service marks, trademarks, names and logos is prohibited without the expressed written prior approval of the Licensor.

    5. Upon Licensor’s request, Licensee will cooperate fully, at Licensor’s expense, in confirming, perfecting, preserving and enforcing Licensor’s rights in the Licensed Property. During the Term of this Agreement, at Licensor’s request, Licensee shall indicate in its use of the Licensed Property that such Licensed Property is owned by Licensor and that Licensor owns the copyright rights therein.

  8. CONDITIONS

    1. Licensee agrees to provide access to the Licensed Property only to those individuals and practices identified during the Registration Process who are associated with the Licensee (each a “Registered User”). Licensee and all Registered Users of the Licensed Property agree to complete all required fields during the registration process. Licensee must notify Licensor of additional individuals and/or practices which the Licensee wishes to add to this Agreement that are in addition to those included in the original License and initial Registration Process and pay any additional fees due.

    2. Only Registered Users associated with the Licensee, or a sponsoring entity, may access the Licensed Property under this Agreement.

    3. Licensor may contact Licensee and Registered Users by email to request completion of satisfaction surveys to support continued improvement of the Licensed Property.

    4. Registered Users acknowledge that ACP Practice Biopsy® results will be available for viewing by the Practice or Group administrator.

    5. The Licensed Property provides general guidance and recommendations. Licensor is not responsible for the actions of, or expenses incurred by, Licensee or associated Registered Users in response to the information presented in the Licensed Property.

    6. De-identified information collected through the Licensed Property may be used in analyses, presentations and publications by ACP.

    7. Discussion forums in the Licensed Property are meant to foster the sharing of information to advance practice improvement. By participating in the discussion forums, Registered Users acknowledge and agree that they may only submit, post, or display content to or on the site in accordance with the following understanding:

      • Postings may not be: 1) abusive, threatening, obscene, defamatory or libelous; 2) fraudulent, deceptive or misleading; 3) in violation of another’s copyright, trademark or any other intellectual property right; or 4) otherwise unlawful or objectionable to ACP.

         

      • Postings may not be in violation of confidentiality provisions of any agreement between a Registered User and another entity, including but not limited to, revealing or otherwise disclosing internal business practices, fee schedules, or other rates or terms of compensation, claims payment, medical or quality management policies or procedures.

      • Postings are statements of personal views and opinions, and not those of Licensor or any other organization or person. Individuals are solely responsible and liable for their account, postings, use of the site and services, and any claims, damages, losses or expenses arising directly or indirectly from any of the foregoing; and the Licensed Property is acting as a conduit for the distribution of postings and Licensor is not undertaking any obligation or liability relating to any postings or other User activities.

      • Licensor reserves the right, to be exercised in its sole discretion, to remove any Posting for any reason and at any time, but has no obligation to do so. Licensor may block the individual who posted the offending comment from future postings.

      • In consideration of allowing Registered User to have an account, place postings and otherwise use the site and services, Registered User grants Licensor a perpetual, binding, worldwide, royalty-free, and non-exclusive license to reproduce, modify, translate, publish, display, telecommunicate, and distribute postings to the discussion forum.

    8. Licensor will provide access to Licensed Property via a username/password combination for all Registered Users based on the type and size of License. Licensee and each Registered User are responsible for maintaining the strict confidentiality of username/password combinations and for any damages or losses incurred or suffered as a result of its failure to do so. Licensor is not liable for any harm caused by or related to the theft of username/password combinations, disclosure of such, or unauthorized access and use the Licensed Property using a Registered User’s username/password. Licensee and Registered Users agree to immediately notify Licensor if they become aware of any unauthorized uses or need to deactivate access due to security concerns.

  9. INDEMNIFICATION
    Licensee and Registered Users hereby assume all responsibility for and agree to indemnify, defend, and hold harmless Licensor, its officers, directors, employees and agents, from and against any and all damages, losses, claims, suits or other expenses, including reasonable attorney’s fees, whatsoever, arising out of, or related to, use of the Licensed Property by Licensee or associated Registered Users, or breach of any of the terms in this Agreement.

    Licensor shall indemnify, defend and hold harmless Licensee, its officers, directors, employees, associated Registered Users, and agents, from and against any and all damages, losses, claims, suits, or other expenses, including reasonable attorney’s fees, whatsoever, arising out of or related to Licensor’s: (a) misrepresentations and (b) breach of any of the terms of this Agreement.

  10. ASSIGNABILITY AND NO WAIVER
    Licensee and/or associated Registered Users may not assign, sublicense, nor transfer its obligations or interest in this Agreement. The failure to enforce any of the terms and conditions of this Agreement by either party shall not be deemed a waiver of any other right or privilege under this Agreement.

  11. ENTIRE AGREEMENT AND SEVERABILITY
    This Agreement constitutes the entire agreement between the parties and supersedes any prior oral or written agreements concerning the subject matter hereof and may only be amended by a written agreement signed by both parties hereto. If amendment is needed, please contact practiceadvisor@acponline.org or 202-261-4556.

    If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.

  12. NOTICE
    All notices, requests, approvals, demands, and other communications required, given, or made in connection with the terms and provisions of this Agreement shall be deemed to have been given or made upon receipt if delivered in writing: 

    (a) Email to the address below,

    (b) Via facsimile to the fax numbers identified below (if any), or

    (c) Mailed via certified mail or national overnight delivery service to the below listed addresses or to such other address as the addressee may designate in writing in the manner provided herein:

    If to Licensor:
    American College of Physicians, Inc.
    190 N. Independence Mall West
    Philadelphia, PA 19106-1572
    PHONE 202-261-4556
    FAX 202-401-835-0443
    EMAIL practiceadvisor@acponline.org


    If to Licensee
    Licensor will use the information provided at time of Registration to make Notice to Licensee.


  13. BINDING EFFECT
    This Agreement shall be binding by the parties and permitted assigns.

  14. DISPUTES AND GOVERNING LAW
    Any disputes concerning this Agreement shall be subject to the exclusive jurisdiction of the federal and state courts in the Commonwealth of Pennsylvania and both parties hereto consent to the subject matter and personal jurisdiction of such courts over any such dispute. In the case of any dispute concerning this Agreement, the prevailing parties shall be entitled to its reasonable attorney’s fees incurred in enforcing its rights hereunder.

    This Agreement shall be governed by the internal laws of the Commonwealth of Pennsylvania, without regard to choice of law principals.