AccuCare Terms of Use

For AccuCare Web Version and Self-hosted SQL Server Version

IMPORTANT--THIS AGREEMENT FORMS A PART OF THE TRANSACTION SERVICE AGREMEENT AND MUST BE ACCEPTED BEFORE YOU, THE CUSTOMER, WILL BE PERMITTED ACCESS TO ACCUCARE. The Customer ("You") will be defined as, but not limited to, the entity, its employees, associates, affiliates, agents or representatives that will have access to the Software Product. This Software License and Support Agreement (this “Agreement”) is an agreement by you, the Customer, in favor of Orion Healthcare Technology, Inc. (“Orion”) regarding your use of the Orion software product known as AccuCare Web (accessed through any myAccucare.com web site and hosted by Orion's web server(s)) or AccuCare SQL Server version (hosted by you, the customer), which includes access to and use of computer software and a related database and may include associated media, printed materials, and “online” or electronic documentation including questions, images, icons and text incorporated into and/or accompanying the software (collectively, the “Software Product”).

You have agreed to purchase one or more licenses of the Software Product at the prices and upon the terms set forth in the Transaction Service Agreement ("TSA"), Attachment 1-A and any additional Attachments. This Agreement shall govern your use of the Software Product. In exchange for your agreement to these terms, Orion agrees to grant you the license as described below, provide the customer support described below and, if you have elected this option, to install the Software Product on your system.

BY INSTALLING OR USING THE SOFTWARE PRODUCT, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS OF THIS SOFTWARE LICENSE AND SUPPORT AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ATTEMPT TO ACCESS OR OTHERWISE USE THE SOFTWARE PRODUCT. INSTEAD, PROMPTLY CONTACT ORION FOR INSTRUCTIONS.

Orion retains all the intellectual property in the Software Product; you are acquiring a limited, non-exclusive license to access the Software Product and the number of computers (or licenses) that you obtain a license for, as set out more fully below.

The Software Product is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties. The Software Product is licensed, not sold.

Permitted Use/Grant of License AccuCare Self-hosted SQL Version
Orion hereby grants to you a personal, non-transferable and non-exclusive right to access the Software Product. This permits you to use one (1) copy of the Software Product on a single computer server; if you wish to use the Software Product on additional computers, you must obtain a separate license for each such computer. The Software Product shall be in “use” on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer. Installation on a network server for the sole purpose of internal distribution shall not constitute “use” for which a separate license is required, provided you have a separate license for each computer to which the Software Product is distributed.

Permitted Use/Grant of License AccuCare Web
Orion hereby grants to you a personal, non-transferable and non-exclusive right to use the Software Product for the duration of your subscription, as described in the Transaction Service Agreement. This "subscription" permits you to log on and use one (1) copy of the Software Product on a single computer at any single time; if you wish to use the Software Product on additional computers concurrently, you must obtain a separate license for each concurrent use. The Software Product shall be in “use” on a computer when it is accessed via the Internet with the end user's ID and password and company ID.

Reservation of Rights
All rights not expressly granted are reserved by Orion.

Copyright/Restrictions on Use/No Modification of Code
The Software Product (including the written materials, questions, images, icons and text incorporated into and/or accompanying the software) is owned by Orion and is protected by United States copyright laws. The Software Product also contains trade secrets and other proprietary materials, which are owned by Orion. You agree that you will not (1) copy the Software Product or any portion thereof, including, without limitation, the source code or any single line of code contained in the Software Product; (2) copy any of the written materials for any purpose; (3) modify, rent, lease, loan, create derivative works based upon, copy or distribute the Software Product in whole or in part; (4) export or grant a sub-license of the Software Product or the license contained herein to any other party unless authorized by Orion in writing; (5) allow the Software Product to be used by more than the number of computer workstations for which licenses have been purchased; and (6) reverse engineer, decompile, or disassemble the Software Product.

In addition to the agreement above, you expressly agree that you will not copy or modify any portion of the source code of the Software Product, including any single line of code for the Software Product. Any such modification or attempt to modify shall void all warranties of the Software Product and will cause you to incur additional service fees for the repair and restoration of the Software Product. Further, you expressly agree that you will not run any scripts, stored procedures or other code against Software Product without the prior written authorization from the President of Orion.

Ownership
Orion is the owner of all intellectual property rights in the Software Product, related written materials, logos and names, and all other related materials, which accompany the software. No title to the intellectual property in the above-described software or materials is transferred to you by this Agreement.

Limited Warranty
Orion warrants that the Software Product will perform substantially in accordance with the accompanying written materials for a period of one (1) year from the date of receipt by you of the Software Product provided that you comply at all times with all terms of this Agreement (including the restrictions on use and the nonmodification restriction) and further provided that your computer system meets the minimum system requirements set forth in this Agreement and any minimum system requirement of any future upgrade of the Software Product utilized by you.

ORION DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS. ORION DOES NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET YOUR PARTICULAR REQUIREMENTS OR THAT ITS OPERATION WILL BE ERROR FREE.

IN NO EVENT SHALL ORION BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THIS SOFTWARE PRODUCT, EVEN IF ORION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ORION’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. THE LIMITATIONS AND EXCLUSIONS STATED HEREIN SHALL SURVIVE A BREACH OF THIS AGREEMENT.

Orion is not responsible for any problems that may occur as a result of any incompatibility between the Software Product and any other software or hardware.

Some states/jurisdictions do not allow the exclusion of implied warranties, nor the exclusion or limitation of liability for consequential or incidental damages. THEREFORE, THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE PRODUCT.

Minimum and Recommended System Requirements for AccuCare Self-Hosted SQL Version
The Software Product has been designed to run only on a system with the following minimum requirements and by installing the Software Product you agree to have the following in place at all times:

Minimum Requirements

• Server OS: Windows Server 2008 R2 (standard or higher)
• Database: Microsoft SQL Server 2008
• Web Server: Internet Information Services (IIS) 7

Recommended

• Server OS: Windows Server 2012
• Database: Microsoft SQL Server 2008
• Web Server: Internet Information Services (IIS) 8

Additional

• 4GB RAM (per server, 8GB recommended if IIS + SQL are on the same machine)
• 4GB Disk Space (additional needed for Chart Management)
• Network Connection to Server: Broadband (3Mbps or Faster)
• Modern Web Browser: Internet Explorer 11 or higher, Mozilla Firefox, or Google Chrome
• SQL Server Client Tools installed on same machine as IIS
• SQL Server installed on a secondary HD (recommended)
• Remote Administration capability provided to Orion via VPN

Minimum System Requirements for AccuCare Web
The Software Product has been designed to run on a system (computer workstation) with the following minimum requirements and by using the Software Product you agree to have the following in place at all times:

• Operating System: Windows XP or Higher
• Web Browser: Internet Explorer 11 or Higher, Mozilla Firefox, Google Chrome
• Internet Connection: Broadband (DSL, Satellite, Cable)

Minimum System Requirements for Future Software Product Upgrades/Updates
In addition, you agree that with respect to any upgrades/updates you purchase (or are granted at no charge) in the future for the Software Product, you will upgrade your computer server, desktops and other systems to meet any new or additional Minimum System Requirements for such upgrade.

Customer Support for AccuCare Self-hosted SQL Version
You agree to pay a customer support fee (set forth in the TSA). The customer support fee is subject to an increase with accordance to the TSA. At your option, the customer support fee can be paid monthly by credit card or ACH (automated clearing house) transaction. Please contact Orion to provide the necessary information and authorization.

Your customer support payment entitles you to basic customer support of the Software Product, limited to eight hours per calendar month, by accessing Orion’s help desk via phone or e-mail, from 8:00 a.m. to 5:00 p.m. CST, Monday through Friday. Any time spent above and beyond the eight hours of support per calendar month will be billed to you at the rate of $125 per hour. Orion has no liability for solving Software Product issues resulting from your illegal/unauthorized modification of the Software Product, its code or any setting required for the proper functioning of the Software Product, or the illegal/unauthorized running of any scripts, stored procedures or other code against Software Product. In the event Orion is unable to find a solution to a technical problem in the Software Product via telephone, email or other remote means, Orion may send an Orion representative to your offices to further diagnose and solve the problem. Regardless of the cause or fault of the event or issue, you shall reimburse Orion for all time and expenses relating to the on-site visit at Orion’s thencurrent hourly rate. You acknowledge that the Software Product contains millions of lines of code and an illegal/unauthorized modification in one line of code can require line-by-line review of the code by Orion in order to solve any technical issues resulting from such change.

In addition, you understand that by self-hosting the AccuCare browser based system, there will be no support on AccuCare software version 5.5e or earlier for the upgraded location. All previous versions must be archived or uninstalled.

Customer Support for AccuCare Web: Clinical EHR and Billing
Orion shall provide active software support services, for clinical EHR issues, limited to 4 hours per calendar month, by accessing Orion’s help desk via phone or e-mail, from 8:00 a.m. to 5:00 p.m. CST, Monday through Friday. Any time spent above and beyond the four hours of support per calendar month will be billed to you at the rate of $125 per hour. Included in your AccuCare Web clinical EHR support services may include, but not limited to, online CEU services (in partnership with NAADAC), 24-hour access to online user guides and tutorials at no charge. AccuCare Web billing issues are limited to 1 hour per calendar month, with additional support purchased per month at the current support rate (see Account Manager for rates).
Orion will also apply periodic updates/upgrades to the Software Product at no charge to customers who have current subscriptions. Orion will allow the customer to transfer the use of licenses of their AccuCare subscription one time per subscription year. Any transfers beyond the allowance will be billed to you at the current fee.

Data Retrieval for AccuCare WebOrion Healthcare Technology securely stores all customer data on web servers, which are backed up to digital tapes every night. Tapes are transferred off-site weekly for storage in a secure, environmentally controlled data archive facility for up to 14 days, and stored on Orion's web server(s) for up to 30 days. Only an authorized release of information will allow access to these backups (hourly fees may apply). In the event your organization requests Orion to perform data backup procedures (and archiving) beyond the 30 days (in accordance with HIPAA) you will be charged a fee at Orion's current market rate for that service. Orion is not liable for any negligence from the customer regarding their responsibility to comply with HIPAA regulations.

TerminationOrion may terminate this license without notice if you fail at any time to comply with any of the terms of this Agreement. Such termination by Orion shall be in addition to any and all other legal remedies that may be available to Orion.
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MiscellaneousThis is the entire agreement between you and Orion concerning your license to use the Software Product and related materials. This Agreement supersedes all prior agreements, whether oral or written, regarding this subject matter. Except with respect to Minimum System Requirements necessitated by upgrades of the Software Product and an annual increase in the customer support fee (or increases in subscription fees), no amendment to or modification of this Agreement shall be binding unless in writing and signed by duly authorized representative of Orion. This Agreement shall be governed by the laws of the State of Nebraska. Should you have any questions concerning this Agreement, or if you desire to contact Orion for any reason, please contact either at the following address: Orion Healthcare Technology, Inc., 18047 Oak Street, Omaha, NE 68130 (402) 341-8880 or at [email protected].