a.“Affiliate ” shall mean, with respect to any entity, (i) any other entity Controlled, directly or indirectly, by such entity, (ii) any entity that Controls, directly or indirectly, such entity; or (iii) any entity, directly or indirectly, under common Control with such entity. For the purpose of this definition, “Control ” means the power to direct or cause the direction of (whether directly or indirectly) the management or policies of any entity, through the ownership of voting securities, through contract or through any other means.b.“Agreement ” shall mean this Napier’s Standard Terms and Conditions and any other notification issued by Napier from time to time as an addendum to this Agreement;c.“Business Day ” shall mean any day other than a Saturday, and Sunday or a public/statutory holiday in Territory.d. “Business Hours ” shall mean the hours from 9:00 AM to 6:00 PM on Business Days in the Territory.e. “Care Recipient(s) ” shall mean the persons whose vitals shall be recorded and/or monitored using the Software.f. “Confidential Information ” means any oral, written, graphic or machine and eye‑readable information, disclosed by the Discloser relating to the Discloser’s business or Discloser’s Affiliates or any of their third party suppliers, partners or customers, including, without limitation, information relating to patents, patent applications, research, product plans, proposals, specifications, Training Videos, price lists, drawings, customer information, procedures, proposed products, products, developments, inventions, processes, designs, software requirements specification, drawings, engineering, formulae, markets, software (including source and object code), trade secrets, processes, internal structure, user interfaces, hardware configuration, computer programs, algorithms, business plans, business opportunities, agreements with third parties, services, customers, marketing or finance information, techniques, services and like information of, or provided by the Discloser or its Affiliates or any of their third party suppliers. Confidential Information includes this Agreement, the Software and all Enhancements, modifications, Fixes and updates. Notwithstanding the forgoing, any other information which is reasonably understood to be confidential or proprietary based on the circumstances of disclosure or the nature of the information itself or any information pertaining to the Customer, such information shall be treated as Confidential Information at all times. Confidential Information shall not include any information that:
is lawfully known by the Recipient at the time of disclosure without any obligation to keep the same confidential,
is or becomes through no fault of the Recipient available to the public,
is independently developed by the Recipient without use or reference to such Confidential Information,
is authorized to be disclosed in writing by the Discloser, or
is rightfully disclosed to it by a third party without restriction
g. “Customer” shall mean shall mean the entity that has entered into this Agreement with Napier for the use of the Software.
h. “Corrective Maintenance” shall mean the provision of Workarounds and solutions in response to any Errors in the Software in accordance with the terms of this Agreement.
i. “Discloser” shall mean the Party disclosing Confidential Information under this Agreement.
j. “Designated Environment” shall mean the hardware and software necessary for the proper functioning of the Software, including third party database software.
k. “Enhancements” shall mean any modification, update, upgrade or addition to the Software that, when made or added to the solution or modules currently being used by Customer, provides minor functionality enhancements but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Napier to all its customers as part of support and maintenance service. Enhancements shall also include changes, if any made to the Software in order to address specific requirements set out by the Customer pursuant to the grant of license. Enhancements are generally denoted by minor version level (such as, version 1.1, version 1.2 and so on) changes as determined by Napier. Enhancements do not include New Versions, add-ons, or further customization of the Software that Napier may provide at its standard scale of charges from time to time in force. An enhancement, feature, functionality or update requested by the Customer based on the specific needs or requirements of the Customer shall not form part of the Enhancements that may be made available under this Agreement.
l. “Error” shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the documentation due to any programming defect in the Software, when the Software is used. The term “Error” shall not include any failure or inability of the Software that:
results from the misuse or improper use of the Software;
does not materially affect the operation and use of the Software;
results from any modification to the Software that is not a Napier authorized change;
results from any cause beyond reasonable control of Napier including third party hardware, software, firmware or malware.
m. “Fix” shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by the Customer, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Napier to all its customers under this Agreement.
n. “Go-Live” shall mean shall mean the Software is migrated to the production server to be used in the live environment or the Software is formally available to be used in the live environment, whichever is earlier.
o. “Implementation Services” shall mean the implementation services agreed to be provided by Napier under this Agreement, as further detailed in clause 4 of Schedule I and Section B of Schedule II in this Agreement.
p. “Insolvency Event” means (i) the filing of bankruptcy petition against either Party, (ii) the appointment of receiver, trustee or liquidator for any of the assets of such Party,(iii) filing of a petition for re-organization under any bankruptcy or other similar laws by either Party, (iv) making of an assignment for the benefit of such Party’s creditors, or (v) being adjudged bankrupt or insolvent by any court of competent jurisdiction.
q. “Intellectual Property Rights” shall mean any patents, copyrights, trademarks, service marks (whether registered or not), registered designs, database right, design right, moral right or any other property rights that grant similar rights as the foregoing, anywhere in the world, including those subsisting in the Software and its associated documentation, or any inventions, drawings, performances, software, databases, ideas, methodologies in any manner related to the Software.
r. “License Subscription Term” shall mean the time period for which the Customer shall be authorized to use the Software as notified by Napier.
s. “Location” shall mean shall mean the location of the Customer for installation and use of the Software.
t. “Technical Support” shall mean the technical support agreed to be provided by Napier under this Agreement, as further detailed in clause 4 of Schedule I and section C of Schedule II of this Agreement.
u. “Metadata” is a set of anonymized data that forms the underlying basis for the definition or description for the data.
v. “Napier” shall mean Napier Healthcare Solutions Pte. Ltd. of 100 Pasir Panjang Road #04-03, Singapore 118518.
w. “New Version” shall mean any modification, update, upgrade or addition that, when made or added to solution, provides major functionality enhancements or changes the overall utility, functional capability, or application. New Versions are generally denoted by major version level (such as, version 1.0, version 2.0 and so on) changes, as determined by Napier.
x. “Party” means either Napier or Customer individually, and “Parties” means Napier and Customer collectively, and in each case, their Affiliates, successors and permitted assigns.
y. “Recipient” shall mean the Party receiving Confidential Information under this Agreement.
z. “Service Request” shall mean a request for support which may be raised by the Customer under this Agreement.
aa. “Software” shall mean the Software specified by Napier to the Customer. The Software is made available by Napier to the Customer and the User(s) as a service through the internet in accordance with this Agreement.
bb. “Territory” means the country where the Location for installation and use of the Software is.
cc. “Trial Usage” means Napier’s Software provided to the Customer with limited functionalities for the purpose of evaluating the Software for commercial usage.
dd. “User(s)” shall mean the Customer’s personnel authorized by the Customer to access the Software, by allocation of a unique username and password.
ee. “User(s) Data” shall mean all information and data entered by the User(s) by using the Software, including (i) any personal health information related to the Care Recipient(s), and (ii) any information relating to the medical health practitioners and the Customer.
ff.“Workaround” shall mean a plan, or a method provided by Napier for an identified Error, that will ensure the normal operation of the Software until a resolution or restoration is implemented.
2.1 Subject to the payment of the applicable fees payable to the Napier for the use of the Software in the Territory and the Customer’s compliance with the terms of this Agreement, Napier grants the Customer a limited, non-exclusive, non-transferable and revocable right to use the Software in accordance with the terms of this Agreement.
2.2 The Customer shall have the right to use the Software for the License Term as specified by Napier to the Customer, subject to the right of Napier to suspend or terminate this right to use in accordance with the terms of this Agreement. The Customer shall be responsible for the use of the Software by the Users and shall ensure that the Users comply with the terms of this Agreement while using the Software.
2.3 The Customer acknowledges that it acquires only a limited right to use the Software, in accordance with the terms of this Agreement. All intellectual property right in and to the Software, (including but not limited to the user interface, algorithms, formulae, scripts, graphics, work flows, processes, software, methodologies, and databases), shall continue to vest solely and exclusively with Napier, and any of Napier’s licensors.
2.4 The Customer further acknowledges that the Software contains Napier’s proprietary information and trade secrets and is protected by applicable laws.
2.5 The Customer shall not have the right to use Napier’s domain name, business name or trade mark, except as may be authorized by Napier under this Agreement for using the Software.
2.6 The Customer shall use the Software only for its internal purposes. The Customer shall not do or permit anything to be done in respect of the Software, other than as expressly permitted by this Agreement. Without prejudice to the generality of the immediately preceding sentence, the Customer shall not (a) commercially exploit the Software (including by making it available to any third party) without the prior written consent of Napier; (b) distribute or transmit any part of the Software by any means without the prior written consent of Napier; (c) copy any features, functions or user interfaces/graphics from the Software; (d) remove or modify any markings or any notice of Napier’s rights from the Software; or © commit or permit or otherwise cause the commission of any breach of the right to use, such as (i) sharing passwords and other authentication or login credentials; or (ii) permitting the use of the Software by any third party in a manner that subverts the need of such third party to purchase rights of use for the Software; or (iii) deconstruct or reverse engineer the Software; or (iv) access, store, distribute or transmit any viruses, worms, time bombs, or similar programs.
2.7 The Customer shall not and shall ensure that its Users shall not indulge in any illegal activities while using the Software. The Customer shall not and shall ensure that its User(s) shall not host, display, upload, modify, publish, transmit, update or share any information while using the Software, that:
belongs to another person and with respect to which the Customer does not have any right to host, display, upload, modify, publish, transmit, update or share while using the Software;
is grossly harmful, harassing, blasphemous, defamatory, fraudulent, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
harms minors in any way;
infringes any patent, trademark, copyright or other proprietary rights;
involves the sale or promotion of any illegal business activities or prohibited products or services;
violates any law for the time being in force;
deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
impersonates another person; or
contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
2.8 Further, the Customer agrees that it shall and shall ensure that its User(s) shall:
not copy, distribute or disclose any part of the Software in any medium, including without limitation by any automated or non-automated “Scripting”;
not use any automated system, like “robots”, “spiders” and “offline readers” to access the Software in a manner that sends more request messages to Napier servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Napier grants the operators of public search engines revocable permission to use spiders to copy materials from the publicly available searchable indices of the materials, not caches or archives of such materials);
not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Software;
not access the Software through any technology or means other than those provided or authorized by Napier;
not violate any requirements, procedures, policies or regulations of any networks connected to the Software;
not hack, spam or phish Napier or other users;
ensure truthful and accurate User(s) Data is entered into the Software through the Software;
not cause, or aid in, the destruction, manipulation, removal, disabling, or impairment of any portion of the Software, including the de-indexing or de-caching of any portion of the Software from a thirty-party’s website, such as by requesting its removal from a search engine; and
ensure immediate updating of the data as provided by the respective stakeholder.
2.9 The Customer shall not make any copies of the Software, without the prior written consent of Napier.
2.10 This license does not grant the Customer any right to enhancements, fixes, updates or customizations, Napier releases post the grant of the license unless (i) Napier deems it fit to make such enhancements, fixes, updates or customizations available to all its customers, with or without additional cost and at Napier’s discretion; or (ii) if they are made available by Napier as specified in section C of Schedule II under this Agreement.
2.11 Open Source and Third-Party Software: The Software licensed hereunder may include open source and third-party software. To the extent the Software contains any open source and third-party software, the Customer hereby agrees to adhere to the license terms applicable to such open source and third-party software. Notwithstanding anything stated elsewhere in this Agreement or in any Schedules, all open source and third-party software are provided on an “as-is” basis and Napier hereby disclaims all liabilities, damages (even if advised of the possibility of damages), warranties, indemnities and all other obligations (implied or explicit) with respect to such components.
2.12 Content: Any content uploaded by the Customer or its Users shall be subject to the applicable laws and shall be the sole and absolute responsibility of the Customer. Napier may also, at any time, suspend or terminate the Customer’s or its Users’ access to the Software, if such suspension or termination is required for (i) safety purposes, (ii) to prevent a security breach, or (iii) to prevent any irreparable damages or losses to Napier or any other third party.
2.13 Third Party Hardware, Third Party Software and Internet Connection: Napier shall not be responsible for the provision of and any concerns relating to (a) any computer systems and android or iOS mobiles and tablets, (b) any third-party software on the computer systems, mobiles and tablets, or (c) internet connection. Use of the mobiles and tablets shall be governed by the terms and conditions and the user guides of the mobiles and tablets. Support for the mobiles and tablets shall be provided by the third-party manufacturers of these mobiles and tablets. The Customer shall also arrange for internet connection on its own and Napier shall not be responsible for any lack of internet connectivity that affects the performance of the Software.
2.14 Audit: Napier shall be entitled to audit the Customer’s use of the Software and other records necessary to verify the Customer’s compliance with the terms of this Agreement, in such periodicity as Napier may deem necessary. The cost for the audit shall be borne by Napier, however the Customer shall bear all costs if the audit reveals any breach of the terms of this Agreement. In case any discrepancy is found in the use of the Software by the Customer, the Customer shall (a) correct such discrepancy immediately and (b) pay the applicable License fees to Napier as stated in section Quarterly Audit. Napier may also require the Customer to pay any penalty, at Napier’s discretion, for violating the license terms. In the event the discrepancy is not corrected, and the relevant fees and penalty are not paid by the Customer, Napier shall be entitled to terminate the Agreement and recover damages. Napier’s right to audit shall survive any termination of this Agreement for a period of 2 (two) years.
2.15 Napier acquires no right, title, or interest from the Customer under this Agreement in or to the User Data, including any intellectual property rights therein. All control and access to the User Data shall be with the Customer and Napier shall not have any control or access rights to the User Data. While Napier shall not have any intellectual property rights over the User Data, Napier shall retain all intellectual property rights of the Metadata. By accepting this Agreement, the Customer grants to Napier a license to create, host, store, and distribute such Metadata with Napier’s partners or other entities and use it for the purpose of operating and improving the Software. The Customer shall ensure that it procures the consent of all persons, including patients, whose data will be uploaded in the Software. The Customer shall ensure necessary consent of respective persons if it provides access to Napier, for availing Implementation Services and Technical Support from Napier.
2.16 Software Evaluation: The Customer acknowledges that the Customer has, evaluated the Software in line with the Customer’s business needs and fully satisfied in respect of the Software from all aspects, including but without limitation to usability and security vulnerabilities.
3.The Software
3.1 Commencement: The license subscription of the Software by the Customer shall start and end on the License Subscription Term Commencement Date as notified by Napier to the Customer.
3.2 Renewal of Subscription term: The Subscription term shall automatically renew at the end of the License Subscription Term on an annual basis subject to payment condition. The Customer shall not terminate the License Subscription before the expiry of the License Subscription Term. Non-renewal of the License Subscription will result in immediate suspension of the use of the Software by the Customer. 3.3 Suspension for non-payment: Napier shall issue an invoice for all the fees payable for License Subscription Term in accordance with this Agreement. In the event the Customer fails to pay such fees of License Subscription Term within seven (7) days of the date of the invoice, Napier reserves the right to suspend the use of the Software by the Customer, in part or in whole, until full payment is received, without prejudice to any other rights or remedies which Napier may be entitled to hereunder or at law. Napier will give the Customer an advance notice of thirty (30) days regarding the imminent suspension of Customer’s use of the Software under this clause. Customer agrees that Napier shall not be liable to Customer or any third party for any costs, liabilities, damages, awards, actions, claims, losses, and expenses (including reasonable legal fees and disbursements) arising from or relating to the suspension of the Software resulting from Customer’s non-payment of fees.
4. Implementation Services and Technical Support
4.1 Implementation Services: Napier shall provide Implementation Services to the Customer in accordance with the terms for Implementation Services specified in section B of Schedule II. The Software shall be provided on an as-is basis and no customizations or change requests with respect to the functionality of the Software shall be provided.4.3 Cloud-hosting service provider: Napier and/or the Customer may use third party cloud hosting service providers to facilitate the installation of the Software, and for storing the User(s) Data. User data shall be stored and will reside in the Territory unless otherwise specified by Napier. The Customer understands and agrees that it shall abide by, and shall ensure that the User(s) shall abide by, the terms of use of such third-party cloud-hosting service providers while using the Software.5.Fee :
Fee: The Customer shall pay Napier the following fees for use of the Software:
The Customer shall pay the fees for use of the Software as notified by Napier.
Taxes: The fee for the Software shall be exclusive of any local taxes.
Invoice: The invoices for the fee payable under this Agreement shall be settled by the Customer within seven (7) days upon issuance by Napier.
Non-Refundable: All fees paid to Napier are strictly, NON REFUNDABLE under any circumstances.
6. Confidentiality
6.1. Non-Disclosure Obligations (a) The Recipient shall, and shall procure that its employees shall:
(i) maintain confidentiality of the Confidential Information;
(b) Without limiting the foregoing, Recipient agrees that it will exercise the highest standard of care in protecting the Discloser’s Confidential Information and such standard shall not be lower than the standards used by Recipient in protecting its own Confidential Information of a similar nature.
6.2 Survival of Confidentiality Obligations (a) Confidentiality obligations under this Agreement shall remain in effect during the term of this Agreement and shall survive for a period of five (5) years after the expiry of this Agreement.
7. Warranties and Disclaimers
7.1. Each Party warrants that: (a) it has the full rights, power and authority to enter into the Agreement and to perform its obligations as stated in the Agreement; (b) its execution of the Agreement and performance of its obligations as stated in the Agreement do not and will not violate any other agreement to which it is a party; (c) this Agreement will constitute a legal, valid and binding obligation of such Party when executed and delivered; and (d) it shall comply with all laws applicable to such Party.7.2. Subject to clause 2.8 of this Agreement, Napier hereby warrants that it shall not willfully breach the Intellectual Property Rights of any third parties. Napier’s sole obligation in respect of a breach of this warranty shall be, at its sole discretion, to (a) exercise all reasonable efforts, consistent with the industry standards, to modify or rectify the Software to correct the defective performance; or (b) deliver at no additional cost a new copy of the Software if the Customer gives Napier prompt written notice of any claims under the foregoing warranty.
7.3. Subject to the foregoing, the Software is provided to the Customer on an “as-is” and “as available basis”. Napier is not responsible for any failure of the telecommunications network or other communications links utilized to gain access to the Software. Napier is not responsible for any loss or damage resulting from the transfer of data over communication networks and facilities, including the internet.
7.4. The Customer shall take full responsibility for monitoring the vitals’ readings of the Care Recipient(s) by appropriately qualified medical professionals. The Customer shall indemnify, defend and hold Napier harmless against any claim and/or and any costs, liabilities, damages, awards, losses and expenses (including reasonable legal fees and disbursements) that Napier may incur or suffer due to the breach of the obligation stated in the immediately preceding sentence by the Customer.
7.5. Napier does not represent, warrant or guarantee that the Software shall be free from loss, corruption, attack, virus, interference, hacking, or other security intrusion.
7.6. Napier shall not be liable under this Agreement: (a) if the Software is not used in accordance with this Agreement; or (b) if any defect in or deficiency in the Software is caused (i) due to the computing environment of the Customer or the User(s), (ii) due to the communication network or internet connection being used by the Customer or the Users, (iii) due to use of any third party hardware or software that is not recommended by Napier, or (iv) due to any action not directly and solely attributable to Napier. Napier disclaims any warranty or representation to the User(s) or to any third parties under this Agreement.
7.7. Napier disclaims any warranty that (a) the Software will meet the Customer’s requirements; (b) the Customer’s use of the Software will be timely, uninterrupted, secure or error-free; (c) any information obtained by the Customer by using the Software will be accurate or reliable; and (d) any defects or errors in the Software provided to the Customer will be corrected.
7.8. Except to the extent expressly provided otherwise in this Agreement; Napier expressly disclaim all other warranties, conditions, representations and guarantees; whether express or implied and whether arising by law, custom or statements of Napier or third parties, including but not limited to any warranty of merchantability, fitness for purpose or non-infringement. Napier makes no endorsements of and provides no warranties or support with respect to any open source software, third party software and third-party hardware. The Customer assumes all risks as well as all responsibilities related to the use of the third-party hardware, open source or third-party software. Napier further expressly disclaims any warranty or representation to authorized User(s), or to any third party.
7.9. THE CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
7.10. THE CUSTOMER UNDERSTANDS AND AGREES THAT THE SOFTWARE IS NOT INTENDED TO BE SUBSTITUTE FOR MEDICAL ADVICE AND NAPIER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT IN THE MEDICAL TREATMENT BY THE HEALTHCARE PROFESSIONALS AND ANY CONSEQUENCES THEREOF.
7.11. For any breach of the foregoing warranties, the Customer’s sole and exclusive remedy, and Napier’s sole obligation, is to address such breaches as a part of Technical Support in accordance with the provisions under Section C of Schedule II of this Agreement.
8. Legal and Regulatory Compliance
8.1. The Customer covenants that the Customer shall, obtain, maintain and file, at its own cost, all regulatory authorizations, clearances, approvals, reports, permits, registrations and licenses necessary for the Customer to use the Software within the Territory, including those related to the collection, use, processing, transfer and disclosure of personally identifiable health information of residents/ patients. The Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of residents’/ patients’ data which is entered by its authorized User(s). In the event the residents’/ patients’ data contains any personally identifiable information, the Customer shall ensure that it has all the permissions, approvals and licenses required under applicable law, including the consent of the residents/ patients, to collect, upload, post, email, transmit, store, receive or share such personally identifiable information in the use of the Software.8.2. The Customer acknowledges, provides its consent and shall procure the residents’/ patients’ consent for the storage of the User(s) Data within or outside the Territory. Customer further acknowledges, provides its consent and shall procure the residents’/ patients’ consent for the implementation and support teams of Napier or its subcontractor, which may be located within or outside the Territory, to have limited access to the User(s) Data (including personally identifiable information of residents/ patients) on a need to know basis.
8.3. The obligation of Napier to provide the Software is conditional upon the procurement of consent of the residents/ patients by the Customer. Upon Napier’s request, the Customer shall provide confirmation and evidence of procurement of residents’/ patients’ consent by the Customer.
8.4. The Customer shall take full responsibility for monitoring the vitals’ readings of the residents/ patients by appropriately qualified medical professionals. The Customer shall indemnify, defend and hold Napier harmless against any claim and/or and any costs, liabilities, damages, awards, losses and expenses (including reasonable legal fees and disbursements) that Napier may get exposed to due to the breach of the obligation stated in the immediately preceding sentence by the Customer.
8.5. The Customer hereby represents and warrants that the Customer will use the Software in accordance with applicable law. Any contravention of applicable law as a result of the Customer’s use of the Software is the Customer’s sole responsibility, and Napier shall have no liability for any such violation of applicable law.
8.6. Without prejudice to clause 8.4, the Customer shall comply with and shall ensure, in the use of Software, the compliance of the data protection laws in the Territory and any requirements of license or registration by any other relevant authorities in the Territory for use of the Software. The Customer shall indemnify, defend and hold Napier harmless from any loss or liability that may be caused to Napier due to the breach by the Customer of its obligation in the immediately preceding sentence.
8.7. In the event of non-compliance with applicable data protection laws by the Customer, Napier shall have the right to suspend or terminate this Agreement with notice to the Customer.
9. Indemnification
9.1 Subject to clause 2.12 of this Agreement, Napier shall indemnify, defend and hold the Customer harmless from any claims, losses, damages and liabilities (including reasonable legal costs) arising from any third-party claim that the Software breaches or violates any intellectual property of any third party, except to the extent that:(i) such breach or violation is due to materials or information provided by the Customer to Napier,
9.3 The Customer shall take full responsibility to ensure that only appropriately qualified professionals shall be authorized as User(s) and shall indemnify, defend and hold Napier harmless against any action and/claim in this regard and any costs, liabilities, damages, awards, losses and expenses (including reasonable legal fees and disbursements) that Napier may get exposed to as a result of the Customer’s failure to authorize only appropriately qualifies professionals as User(s).
9.4 The indemnifying Party shall have control over the defense of any indemnified claim, provided that the indemnified Party may participate in such defense, at its own cost.
10. Limitation of Liability
10.1 Notwithstanding anything stated elsewhere in this Agreement, in no event shall Napier be liable under this Agreement for any (a) indirect, consequential, incidental, punitive, exemplary or special losses arising under or in connection with this Agreement, whether arising in contract, tort (including negligence), equity, misrepresentation or otherwise; (b) for any: (i) loss of profits, (ii) loss of business, (iii) loss of contracts, (iv) loss of revenues, (v) loss of operation time, (vi) loss of anticipated savings, (vii) increased costs, (viii) wasted expenditure, (ix) loss of goodwill, (x) loss of reputation, (xi) loss or inaccuracy or corruption of data, (xii) loss of programs, whatsoever or howsoever arising out of this Agreement or the use of the Software, even if the loss or damages was reasonably foreseeable or Napier had been advised of the possibility of such damages.10.2 Notwithstanding anything stated elsewhere in this Agreement, in no event shall the maximum aggregate liability of Napier, its group companies, directors, employees and agents to the Customer, arising under or in connection with this Agreement (whether in contract, tort or otherwise) exceed ten percent of the fees received by Napier from the Customer for the use of the Software during the six months preceding the date the liability originated.
10.3 Nothing in this Agreement shall exclude or limit the Customer’s liability to Napier for (a) any illegal content uploaded by the Customer or its User(s) using the Software, (b) any liability relating to residents’/ patients’ data as a result of breach of the terms of the Agreement by the Customer or its User(s), (c) fraud, (d) death or personal injury caused by the Customer’s negligence or intentional misconduct, and (e) any liability which cannot be excluded or limited as a matter of law.
10.4 The Customer shall always use all reasonable endeavors to avoid or mitigate any losses which may arise under or in connection with this Agreement, regardless of its form.
11. Term and Termination
11.1 Term: This Agreement shall continue to be in force for the periods notified by Napier, unless the Agreement is terminated earlier in accordance with the terms and conditions set forth in this Agreement.11.2 Termination:
(a) Napier may terminate this Agreement forthwith:
after providing a thirty (30) days’ written notice to the Customer, in case the Customer has committed a material breach of the terms of this Agreement that can be remedied, and fails to cure the breach within 30 (thirty) days of the date of the written notice specifying the breach;
in case the Customer commits a breach that is incapable of remedy;
in case an Insolvency Event occurs for the Customer; or
in case the Customer fails to make payments by the Due Date under this Agreement.
(b) Customer may terminate the Implementation Services under this Agreement by providing a thirty days’ written notice to Napier:
In case Napier has committed a material breach of the terms of this Agreement relating to Implementation Services, and fails to cure the breach within 30 (thirty) days of the date of the written notice specifying the breach; or
in case an Insolvency Event occurs for Napier.
11.3 Effect of Termination or Expiry (a) In the event of termination or expiry of this Agreement:
Customer shall immediately cease all use of the Software;
Customer shall certify to Napier that it has destroyed or returned all copies of the Software and associated documentation, in accordance with Napier’s instructions, and has ceased all use of the Software;
Customer shall immediately pay to Napier the full amount of all amounts then or thereafter due together with any interest thereon up until the date of payment (whether before or after judgment);
Napier shall immediately cease performing any Technical Support under this Agreement;
Both Parties shall immediately cease to use in any way whatsoever, all intellectual property or Confidential Information of the other Party unless otherwise agreed in writing between the Parties.,/li>
(b) The expiry or termination of this Agreement shall be without prejudice to any other rights or remedies which either Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such expiry or termination, including without limitation, provisions relating to content (clause 2.9), audit (clause 2.11), confidentiality (clause 6), warranties and disclaimers (clauses 7.1 and 7.4 to 7.10), legal and regulatory compliance (clause 8), indemnification (clause 9), limitation of liability (clause 10), governing law and dispute resolution (clause 12) and general provisions (clause 13).
12.Dispute Resolution and Governing Law
12.1 The Agreement shall be construed, interpreted and applied in accordance with, and shall be governed by the laws of the Republic of Singapore.
12.2 Any dispute or claim arising out of or in relation to this Agreement shall be submitted for arbitration in Hyderabad, Telangana in accordance with the arbitration rules of the Arbitration Centre of Singapore.
12.3 The language of arbitration shall be English. The prevailing Party in any dispute shall be entitled to reasonable attorney’s fees and expenses.
12.4 Notwithstanding anything stated above in this clause, each Party shall have the right to seek any injunctive or equitable relief, at any time, from a competent court in the applicable jurisdiction in Republic of Singapore.
13. General Provisions
13.1 Publicity: The Customer hereby permits Napier to include its name and logos and grants Napier the right to identify the Customer as a customer in its listings, websites and collateral marketing materials in line with the Customer’s marketing guidelines. Customer hereby agrees to provide a good report of reference and an opportunity for a visit on prior intimation, for Napier’s existing and prospective customers on request.
13.2 Non-Solicitation: Each Party agrees that during the term of this Agreement and for a period of twelve (12) calendar months after the termination or expiry of this Agreement, it will not, directly or indirectly, induce, solicit or entice any employee or contractor of the other Party or its Affiliates to leave its employment or contract with the other Party or its Affiliates, without the prior written consent of the other Party.
13.3 Force Majeure: Napier shall not be liable for any failure or delay in the provision of the Software (including Implementation Services and Technical Support under clause 4 of Schedule I) or non-functionality of the Software caused by any event beyond Napier’s reasonable control, including without limitation, i) act of God, fire, lightning, explosion, war, civil disorder, flood, industrial dispute, (ii) plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions (iii) act of central or local government or other authorities, or (iv) failure, malfunction, or error due to denial-of-service (DoS) and distributed denial-of-service (DDoS) attacks, malware and ransomware attacks including computer viruses, Trojan horses, worms, spyware, unauthorized hacking etc.
13.4 No Third-Party Rights: A person who is not a Party to this Agreement shall have no right to enforce any of its terms, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of any doubt, nothing in this clause shall affect the rights of any permitted assignee or transferee of this Agreement.
13.5 Assignment: The Customer shall not have the right to assign, transfer or offer as security any right nor interest or delegate any obligation arising under this Agreement without Napier’s express written approval and in accordance with the transfer process set out by Napier. However, Napier may assign this Agreement to an affiliate or an acquiring party or the merged entity in the event of a merger or a sale of all or a substantial portion of Napier’s assets or stock and to that effect this Agreement shall inure to the benefit of successors and assigns.
13.6 Independent Contractors: It is expressly understood that the Parties are independent contractors, and that neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both Parties hereto.
13.7 Entire Agreement: This Agreement, along with Schedule I and II, set forth the entire agreement and understanding of the Parties with respect to the subject matter hereof, and supersedes all prior oral and written agreements, understandings, representations, conditions and all other communications relating thereto.
13.8 Severability: The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
13.11 Excusing Causes:
(a) Napier shall not be liable for any failure to perform (or any delay in performing) the Implementation Services and/or the Technical Support under this Agreement if the failure or delay results from any of the following (each, an “Excusing Cause”):
a failure or delay by the Customer or any third party (including but not limited to the government or any of its agencies) in performing any of their obligations that has an impact on the provision of the Implementation Services and/or the Technical Support; a failure or delay by the Customer or any third-party vendor to provide Napier with assistance, inputs, information, infrastructure or facilities as stated in this Agreement or as may be reasonably required for the performance of Napier’s obligations under this Agreement; inaccurate or misleading information, ineffective infrastructure, misleading functional or technical specification or detailed design supplied by the Customer to Napier; or Napier acting in accordance with an express instruction provided by the Customer.
(b) Napier shall make all reasonable endeavors to continue to provide services to mitigate the impact of Excusing Cause and Customer shall compensate Napier for any additional costs and expenses incurred by Napier as a result thereof.
13.12 Notices:
(b) Either Party may change the afore-mentioned address by notice to the other Party.
13.13 Special Terms (Applicable for Trial Usage only)
(b) Napier shall not be liable to address or obliged to provide any assistance in respect of any issues in the Software during the Trial Usage.
(c) In the event the Customer’s evaluation concludes that the Software does not meet the Customer’s expectations, the Customer’s option shall only be limited to unsubscribe the Software. For the avoidance of doubt, the Customer nor any other third party (if any) shall have any claims against Napier for any damages, for the Trial Usage of the Software.
(d) Napier shall have the right to audit the Software usage and in case the Software use exceeds the Permitted Usage or you request additional User(s), Napier shall invoice you an additional usage fee at the discretion of Napier.
(e) The Customer shall have no rights/claims/title in any manner whatsoever in Napier’s products/offerings which may derive out of the data collected from the Customer during the Trial Usage.
(f) The Customer is not entitled to (i) extend the Trial Usage under any and all circumstances; (ii) carry forward unutilized User(s) and/or Care Recipient(s) for use upon expiry of the Trial Usage; and (iii) change User(s) and/ Care Recipient(s) upon registration.
(g) Upon the expiry of the Trial Usage, the Customer may activate the license subscription subject to payment and further terms as specified by Napier.
(Not applicable to Trial Usage and Renewal of License Subscription) Schedule II A. DESCRIPTION OF THE SOFTWARE Software name and version: as notified by Napier. B. TERMS FOR IMPLEMENTATION SERVICES Implementation Services shall be provided subject to the following terms:
1. The Software shall be provided as notified by Napier. Napier shall not provide the following unless explicitly specified by Napier:
a. any customizations, modification or change requests with respect to the functionality of the Software;
2. Implementation shall be provided for the Location(s) as specified by Napier.
3. The duration of Implementation Services shall be as specified by Napier as the Project Plan. Any change to the duration of Implementation Services shall be discussed and mutually agreed between the Parties.
4. On receipt of all the fees for the Software by Napier, the Customer will receive a user-id, auto generated password and a link using which the Customer may change the auto generated password.
5. All implementation activities shall be delivered through the efforts from the offshore team. Any additional travel and related cost shall be mutually agreed between the Parties.
6. Master Data:
a. Before go-live, Customer shall be prepared with all the necessary Master Data based on the check list provided by Napier.
b. Napier will provide master data upload templates (formats) for certain masters (e.g., Services, Employee, Tests etc.), Patient demographic information (e.g. name, date of birth, gender) for registration and physical stock.
c. Customer shall populate the templates provided by Napier with the necessary master data.
d. Napier shall upload the data in the application. Customer shall be responsible for verifying correctness of uploaded master data.
e. Data verification is the Customer’s responsibility. The Customer shall provide the Master Data with no duplicates.
f. Transaction data migration is out of scope of the Implementation Services.
7. Training:
a. The initial training shall be provided remotely at the Location and subsequently any additional training (if required) will be provided from offshore locations via web meetings. Travel and accommodation cost shall be borne by Customer for Napier employee traveling to Customer location.
8. Napier shall deploy its resources as per the planned activities/schedule. If the Customer causes delay in providing Master Data or ensuring User(s) availability for training activities, then the Customer shall pay for the additional days spent by Napier on time and material basis.
a. The Customer agrees to pay Napier the per day change request rates as charged by Napier.
11. Any additional services (like on premise implementation or training, increase in number of sites, etc.) shall be provided on time and material basis. Napier shall charge the Customer additional fee for the additional services at a mutually agreed rate.
C. TERMS FOR TECHNICAL SUPPORT
Napier shall provide the following Technical Support to the Customer:
1. Corrective Maintenance: Napier shall provide Corrective Maintenance for resolution of Errors. Such Corrective Maintenance shall be provided upon the Customer raising Service Requests in accordance with the process as detailed in Schedule II, Section C, clause 2 (c) below. All Corrective Maintenance would be provided either by Telephone Support or Ticket Support. In no event, shall any Corrective Maintenance be provided on premise.
(i) Web Support: Napier shall provide the link for the web support at the time of start of Technical Support and the Customer shall abide by and shall ensure that the User(s) shall abide by, the terms of use of any third-party service providers while using the Software.
(ii) Telephone Support: The telephone number for support shall be provided by Napier’s support team at the time of start of Technical Support.
4. Management of Service Request:
(a) The management of Service Request for the Software shall be in accordance with the following parameters. However, any Technical Support requirement, that is dependent upon the third-party cloud service provider, shall be provided in accordance with the maintenance support terms offered by the third-party cloud service provider.
Determination of Severity Level:
Business and financial exposure
Work outage
Number of clients affected
Availability of Workarounds
Acceptable resolution time
Classification of Error based on Severity Level:
Severity Levels
Description
“Critical”
Error renders the Software completely unusable. No Workaround is available. A large number of User(s) and/or the Software’s performance is severely impacted.
“Medium”
Error is an inconvenience or causes inconsistent behavior, which does not impede the normal functioning of the Software. It could be an Error that occurs inconsistently and affects small number of User(s). It may also contain visual Errors where the graphical display of the program is not ideal, but still functioning correctly.
“Low”
Error/request has a small degree of significance, or is a minor operational or configuration issue, or is a “one off” case. A “one off” case occurs when the Error occurs infrequently and cannot be replicated easily. These are Errors that do not impact the daily use of the Software. A low Error is something that does not affect normal use, and can be accepted for a period of time, but User(s) would eventually want the Error to be fixed.
Severity Levels
Description
case. A “one off” case occurs when the Error occurs infrequently and cannot be replicated easily. These are Errors that do not impact the daily use of the Software. A low Error is something that does not affect normal use, and can be accepted for a period of time, but User(s) would eventually want the Error to be fixed.
(b) Change in Classification: The classification assigned to an Error may be changed by mutual agreement of the Parties in the following manner:
Downgrade of Severity Levels: If, during the Service Request process, the Error no longer warrants the severity level as assigned to it, based on its current impact on the production operation, then the severity level will be downgraded to the severity level that most appropriately reflects its current impact.
Upgrade of Severity Levels: If, during the Service Request process, the Error warrants the assignment of a higher severity level than that currently assigned, based on the current impact on the production operation, then the severity level will be upgraded to the severity level that most appropriately reflects its current impact. In requesting any assignment of a higher severity level, the Customer must provide Napier with sufficient information that demonstrates the increased impact of the issue on the production operation.
(c) Response Time: The approximate response time based on classification of an Error in shown in the table below:
Severity Level of the Error
Response Time
Critical
1 Hour
Medium
4 Hours
Low
8 Hours
Note: Response time is the time taken by Napier to acknowledge a Service Request.
Complexity of the issue
Requirement of a code change
Delay from the User(s) in providing additional information
(d) Closure of Service Request: Service Requests will be closed or deemed to be closed:
(i) when the Customer receives a Workaround or information that resolves the issue and the Customer agrees that the issue has been resolved; or
(ii) when the Customer has not responded for 5 (five) Business Days after Napier has communicated to the Customer that the issue has been closed.
Corrective Maintenance shall include 30 Service Requests or 80 hours per year whichever is consumed first.
5. Scheduled Maintenance: Napier shall schedule downtime for maintenance on a periodic basis and shall inform the Customer in advance. Napier shall make all efforts to conduct this scheduled maintenance during non-peak hours.
6. The Out of Scope Services are as follows:
Installation, configuration or modification of any third-party software used by the Customer
User(s) related configuration of the Software;
Errors in the Software caused by Customer’s negligence or improper use of the Software by the Customer;
Data cleansing services for damaged, duplicate or lost data caused by the Customer not following the quality control processes;
Back-up Data verification and validation stored on the cloud.
Restoration of data;
Maintenance for third party software or hardware being used by the Customer;
Providing Enhancements and New Version;
Fixing Errors:
that cannot be reproduced or verified by Napier in spite of reasonable efforts;
in the Software caused by third party software or hardware, including virus, worm, trojan, or similar malicious code not introduced by Napier; and/or
caused due to Customer’s non-acceptance of any Fixes provided by Napier.
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