TERMS OF USE

USER AGREES THAT IN USING THIS SOFTWARE THEY HAVE READ THIS, UNDERSTAND IT AND UNDERSTAND THAT THEY ARE BOUND BY ITS TERMS AND CONDITIONS. IF USER DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS, THEY MUST PROMPTLY DISCONTINUE THE USAGE OF THIS SOFTWARE AND RETURN ALL DOCUMENTATION PERTAINING TO THE SOFTWARE TO SAPPHIRE IMMEDIATELY.

BY ACCEPTING THIS you the user (USER) are an authorized USER able to utilize the proprietary Sapphire eMAR software owned by and licensed by SapphireHealth, LLC., which specifically consists of e-prescribing, eMAR,and pharmacy reporting and prescription reconciliation; hereinafter knows as SOFTWARE. This is a License for end user rights and is not a sale of this SOFTWARE. SAPPHIRE will continue to own all rights and title to the SOFTWARE subject to the rights permitted pursuant to these TERMS OF USE. UPON ACCEPTANCE, USER ACKNOWLEDGES THAT THEY HAVE READ AND UNDERSTAND THE TERMS OF USE AND WILL BE BOUND BY ALL ITS TERMS.

Now, therefore; in consideration of the mutual promises and the TERMS OF USE made herein the USER is bound as follows:

Electronic Health Record (EHR) Acceptable Usage Policy:

 

Purpose:

The purpose of this policy is to ensure the secure and appropriate use of the organization's EHR system. All users of the EHR system are responsible for adhering to this policy.

 

Policy:

 

Only authorized individuals, who have been trained and granted access by the organization, are allowed to access the EHR system.

1. Users may only access the EHR system during authorized hours as specified by their organization.
2. Users must only access the EHR system using authorized means, such as organization-approved computers and devices.
3. Users must not share their login credentials with anyone, including other authorized users.
4. Users must log out of the EHR system when not in active use and must lock their computers when away from their desks.
5. Users must report any suspicious activity or security breaches immediately to the appropriate parties, such as the IT department or the organization's designated security officer.
6. Users must not use the EHR system for any unauthorized or illegal activities.
7. Users must not access or share patient information without a valid need to know, and must maintain confidentiality of all patient information in accordance with the organization's policies and procedures.

ENFORCEMENT:

Violations of this policy may result in disciplinary action, if you have any questions or concerns about this policy, please contact your supervisor."

SOFTWARE LICENSING and DEFINITION OF SOFTWARE

END USER RIGHTS AND USE - SAPPHIRE grants USER a non-exclusive, non-transferable end user rights to utilize this SOFTWARE strictly by the USER specifically for its designated facility which is setup by SAPPHIRE and serviced exclusively (with the exception of emergency prescriptions) with pharmacy dispensing services by Diamond Drugs, Inc., Indiana, PA.

SOFTWARE - Means, collectively: (i) SOFTWARE identified above; including the Source Code form of the SOFTWARE located on SAPPHIRE’S website or other medium; (ii) design, format, digital images, stock photographs, clip art, fonts or other artistic work (“Stock Files”); (iii) related explanatory written or electronic materials and any other possible documentation related thereto (“DOCUMENTATION”); (iv) upgrades, updates, addition or modified versions provided by SAPPHIRE.

LIMITATION END USER RIGHTS - USER may not copy, distribute, share passwords or make derivative works of the SOFTWARE except in addition: (i) USER may not use, modify, translate, reproduce, share passwords or transfer the right to use the SOFTWARE or copy the SOFTWARE except as expressly provided HEREIN (ii) USER may not sell, sub-license, rent, lease, transfer or lend the SOFTWARE (iii) USER may not reverse engineer, reverse compile, disassemble, create derivative works or otherwise attempt to discover the Source Code of the SOFTWARE, except to the extent that this restriction is expressly prohibited by law. USER also agrees and understands that they are fully responsible for maintaining the confidentiality of passwords associated with any account they use to access the SOFTWARE. Accordingly, USER agrees that they will be solely responsible to SAPPHIRE for all activities that occur under their account. If USER becomes aware of any unauthorized use of their password they agree to notify SAPPHIRE immediately. USER further understands that they are only permitted to utilize the SOFTWARE in a way permitted and/or authorized by their professional license, appropriate facility administrator and as appropriate licensed personnel.

Unless stated otherwise in the DOCUMENTATION, USER shall not display, modify, reproduce or distribute any of the Source Code, Stock Files or features included with this SOFTWARE. In the event that the DOCUMENTATION allows USER to display the Stock Files, USER shall not distribute the Stock Files on a stand-alone basis, i.e., in circumstances in which the Stock Files constitute the primary value of the product being distributed. USER should review the “Read-Me” files associated with the Stock Files that USER utilizes to ascertain what rights USER has with respect to such materials. Stock Files may not be used in the production of libelous, defamatory, fraudulent, infringing, lewd, obscene or pornographic material or in any otherwise illegal manner; USER may not register or claim any rights in the Stock Files or derivative works thereof.USER agrees that they shall only utilize the SOFTWARE as specifically directed by SAPPHIRE in a manner that complies with all applicable laws in the jurisdiction in which USER utilizes the SOFTWARE, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

COPYRIGHT - The SOFTWARE and all rights, without limitation including proprietary rights therein, are owned by SAPPHIRE and/or its authorized licensors and affiliates and are protected by international treaty provisions and all other applicable national laws of the country in which it is being utilized. The structure, organization and code of the SOFTWARE are part of the valuable trade secrets and confidential information of SAPPHIREand/or its authorized licensors and affiliates. USER may not copy the SOFTWARE, except as set forth in the section titled Limitations on End User Rights. Any copies which USER is permitted to make pursuant to the AGREEMENT must contain the same copyright and other proprietary notices that appear on the SOFTWARE.

WARRANTY - USER ACKNOWLEDGES THAT THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER SAPPHIRE, ITS LICENSORS OR AFFILIATES NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OR MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. THERE IS NO WARRANTY BY SAPPHIRE OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET USER REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. USER ASSUMES ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE USER INTENDED RESULTS AND FOR THE USE AND RESULTS OBTAINED FROM IT.

COMMENCEMENT AND TERMINATION–The TERMS OF USE are binding upon acceptance of terms and dated electronic signature which is completed at time of initial log in and verification by you the USER. USER may terminate USERS LICENSE at any time by ceasing to utilize the SOFTWARE, having facility administrator remove their access from the system and permanently destroying and/or returning, at the USER’S own expense all related materials provided by SAPPHIRE or its SOFTWARE. If USER fails to comply with any provision of these TERMS OF USE, SAPPHIRE will notify USER in writing of the non-compliance concern. If USER does not comply with the non-compliance concern immediately, USER’s end user rights will automatically terminate. In either event, USER must immediately and permanently return at USER’s own expense all related SAPPHIRE and SOFTWARE material. Upon termination USER agrees to immediately pay all its outstanding obligations to SAPPHIRE.

LEGAL DISCLOSURE ASSIGNMENT - USER may not assign, sublicense or transfer any rights or obligations under the TERMS OF USE, the SOFTWARE or any enhancements SOFTWARE, updates, upgrades, modifications or amendments. SAPPHIRE may assign or transfer, its rights and obligations hereunder at its discretion to any third person or legal entity without USER’S prior written permission.

LIMITATION OF LIABILITY - TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SAPPHIRE, ITS EMPLOYEES OR LICENSORS OR AFFILIATES BE LIABLE WHATSOEVER FOR ANY PATIENT INJURY, LOST PROFITS, REVENUE, SALES, DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER; CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SAPPHIRE OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES, STATES AND/OR JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, SAPPHIRE ITS EMPLOYEES OR LICENSORS OR AFFILIATES’ LIABILITY SHALL BE LIMITED TO $50.00 US DOLLARS. NOTHING CONTAINED HEREIN SHALL PREJUDICE THE STATUTORY RIGHTS OF ANY PARTY DEALING AS A CONSUMER. NOTHING CONTAINED HEREIN LIMITS SAPPHIRE’S LIABILITY TO USER IN THE EVENT OF DEATH OR PERSONAL INJURY RESULTING FROM SAPPHIRE’S NEGLIGENCE. SAPPHIRE IS ACTING ON BEHALF OF ITS EMPLOYEES AND LICENSORS OR AFFILIATES FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND/OR RESTRICTING OBLIGATIONS, WARRANTIES AND LIABILITY AS PROVIDED IN THIS CLAUSE, BUT IN NO OTHER RESPECTS AND FOR NO OTHER PURPOSE. USER’S SOLE AND EXCLUSIVE REMEDY AND SAPPHIRE’S SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH HEREIN.

INDEMNIFICATION - USER shall defend, indemnify, and hold harmless, SAPPHIRE and their respective officers, directors, employees, agents, members, shareholders, partners, joint ventures, affiliates, successors and assigns from and against any and all liabilities, obligations, claims, demands, suits, losses, expenses damages, fines, judgments, settlements and penalties, including, without limitation, costs, expenses and attorneys’ fees incident thereto, arising out of or based upon contract damages, property damage or bodily injury, including death at any time resulting there from, to any person, including SAPPHIRE employees, affiliates or agents, occasioned by or in connection with (1) SAPPHIRE’S performance of, or failure to perform, the contract duties hereunder; (2) a violation of any laws or any act or omission by SAPPHIRE during the performance of the contract duties hereunder; (3) a breach of the of TERMS OF USE by SAPPHIRE or (4) patent or copyright infringement by SAPPHIRE. The aforesaid obligation of indemnity shall be construed so as to extend to all legal, defense and investigation costs, as well as all other reasonable costs, expenses and liabilities incurred by the USER indemnified, from and after the time at which the party indemnified received notification, whether verbal or written, that a claim or demand is to be made or may be made. SAPPHIRE’S obligations under this Section do not extend to any liability caused by the sole negligence or deliberate indifference of the USER. This Section shall survive the termination.

CONFIDENTIALITY OF INFORMATION - Except as expressly necessary to maintain SAPHIRE’s interests, USER agrees to keep confidential and not to use or to disclose any information related to SAPPHIRE’s business. USER further agrees that, upon termination, it will neither take nor retain, without prior written authorization from SAPPHIRE, any records, files or other documents or copies thereof or other information of any kind belonging to SAPPHIRE including but not limited to its business, SOFTWARE, sales , except to the extent required by law. To the extent any SAPPHIRE information disclosed to another party including material subject to attorney-client privilege, work product doctrine or any other applicable privilege, such information shall remain entitled to all protection under these privileges. All information disclosed shall remain SAPPHIRE’S property and that USER agrees that SAPPHIRE is entitled to seek injunctive or other equitable relief without the necessity of posting bond, cash or otherwise. USER shall be responsible for any breach of these terms by its representatives or affiliates. This Section will survive the termination or expiration of the TERMS OF USE. USER hereby acknowledges that the SOFTWARE including any DOCUMENTATION, Source Code, translations, compilations, partial copies and derivative works contains Confidential and Proprietary information belonging exclusively to SAPPHIRE or its designated third party supplier. Confidential and Proprietary Information does not include: (i) information already known or independently developed by the User outside the scope of this relationship by personnel not having access to any Confidential and Proprietary Information; (ii) information in the public domain through no wrongful act of the USER, or (iii) information received by the USER from a third party who was free to disclose it. EXPORT CONTROL - The SOFTWARE, including technical data, includes cryptographic software subject to export controls under the U.S. Export Administration Regulations (“EAR”) and may be subject to import or export controls in other countries. The EAR prohibits the use of the SOFTWARE and technical data by a Government End-User, as defined hereafter, without a license from the U.S. government. A Government End-User is defined in Part 772 of the EAR as “any foreign central, regional or local government department, agency or other entity performing governmental functions; including governmental research institutions, governmental corporations or their separate business units (as defined in part 772 of the EAR) which are engaged in the manufacture or distribution of items or services controlled on the Wassenaar Munitions List, and international governmental organizations. This term does not include utilities (telecommunications companies and Internet service providers; banks and financial institutions; transportation; broadcast or entertainment; educational organizations; civil health and medical organizations; retail or wholesale firms; and manufacturing or industrial entities not engaged in the manufacture or distribution of times or services controlled on the Wassenaar Munitions List.)” USER agrees to strictly comply with all applicable import and export regulations and acknowledge that USER has the responsibility to obtain licenses to export, re-export, transfer or import the SOFTWARE. USER further represents that they are not a Government End User as defined above and USER will not transfer the SOFTWARE to any Government End User without a license from SAPPHIRE.

APPLICABLE LAW AND GENERAL PROVISIONS–The TERMS OF USE are governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania. All disputes arising from or relating to the TERMS OF USE shall be given prompt and serious efforts to be resolved internally. If the disagreement cannot be resolved between both parities internally in a timely manner, within 60-days, the parties agree to arbitrate the dispute using the American Arbitration Associations rules and procedures. The arbitration procedures shall take place in Indiana, Pennsylvania, in the English language, and the decision of the Arbitration panel is final and unappeasable. If any part of the TERMS OF USE is found void and unenforceable, it will not affect the validity of the balance of the USE TERMS, which shall remain valid and enforceable according to its terms.

NOTICES – All notices and return of SOFTWARE, documentation and printouts must be delivered return receipt to SapphireHealth, LLC, 645 Kolter Drive, Indiana, PA 15701.

ENTIRE UNDERSTANDING – THESE TERMS OF USE SETS FORTH THE ENTIRE UNDERSTANDING RELATING TO THIS SUBJECT MATTER AND MAY BE AMENDEDAT ANY TIME BY SAPPHIRE. ANY TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY USER IN CONNECTION WITH ANY OPERATION AND SUPPORT OF SOFTWARE THAT ARE IN ADDITION TO, DIFFERENT FROM OR INCONSISTENT WITH THE TERMS AND CONDITIONS OF THE TERMS OF USE ARE NOT BINDING ON SAPPHIRE AND ARE INEFFECTIVE. ONLY AUTHORIZED OFFICERS (NOT SALES PERSONS OR OTHER STAFF) OF SAPPHIRE HAVE AUTHORITY, ON BEHALF OF SAPPHIRE, TO MODIFY THIS, OR TO MAKE ANY WARRANTY, REPRESENTATIONOR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS OR PROMISES, OR ANY OTHER TERMS OF USE EXPRESSLY SET FORTH IN THE TERMS OF USE. SUCH CHANGES OR MODIFICACTIONS, WHEN MADE, WILL BE PROVIDED TO THE USER AND THE CONTINUED USE OF THE SOFTWARE AFTER NOTICE OF THE CHANGES OR MODIFICATIONS IS AN ACCEPTANCE BY THE USER OF THOSE CHANGES OR MODIFICATIONS.