This Synkwise End User License Agreement (“EULA”) is entered into between Synkron Systems, LLC, a Washington limited liability company (“Synkron”) and the authorized end user executing this EULA below (“End User”). The EULA shall be effective upon its digital execution by the End User (the “Effective Date”).
Recitals
Synkron is the developer and sole owner of certain computer software and user documentation called Synkwise, a comprehensive, multi-platform suite of SaaS-based software applications that support providers, caregivers and nurse delegators working in residential care environments. One of Synkron’s Synkwise subscribers (“Subscriber”) operates a residential care facility, and has entered into a software-as-a-service (“SaaS”) agreement with Synkron pursuant to which Subscriber’s authorized end users will have a license to use Synkwise. Subscriber’s authorized end users may include persons directly authorized by Subscriber, such as Subscriber’s facility consultants or contractors, pharmacies integrated for medication ordering and management, a resident’s family members or representatives, short term staff, relief caregivers, administrators and back office staff, medical clinicians, and other customized roles created at the request of the Subscriber. In addition, Subscriber’s authorized ends users may be designated by Subscriber’s staff members who are given the explicit authority to authorize other end users. By executing this EULA, End User represents and warrants that they are an authorized end user of a current, valid Synkwise Subscriber and that they agree to the terms and conditions of this EULA.
Terms
In consideration of the foregoing premises and the terms, conditions, warranties and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, Synkron and End User agree as follows:
1) Grant of Subscription License. Subject to the terms and conditions below, Synkron grants End User a limited, nontransferable, revocable, nonexclusive license to access and use, during their authorizing Subscriber’s subscription term, Synkwise and its related documentation (the “Application” or “Synkwise”) by accessing it over the internet from Synkron’s application server(s) for the sole purpose of facilitating Subscriber’s management of its residential care facility and its residents’ care needs (the “Licensed Use”). The license granted under this EULA is restricted solely to authorized end users of a Subscriber who has a current, fully paid subscription to use the Application. Each End User’s use of the Application is subject to this EULA and all Synkron privacy policies and site use policies in effect at the time of use.
2) Scope of License. Under this license End User may access the Application over an internet connection to Synkron’s Application server(s) to enter, process and retrieve data and to access the functionality and reports available through the Application for the Licensed Use. Under this license End User may not: (i) make copies of the Application; (ii) sublicense, rent, lease, lend or otherwise transfer the Application or End User’s rights under this license without the prior written consent of Synkron; (iii) allow use of the Application by anyone else; (iv) remove or obscure any Synkron copyright or trademark notices on Synkron-generated content; (v) use the Application or the host site as a service bureau for the benefit of any third party; (vi) display or otherwise expose the content or output of the Application to any artificial intelligence or predictive analytics application; (vii) bypass or disable any Synkwise security or access controls; or (viii) attempt to modify, convert, reverse engineer, reverse compile, change or reverse assemble the Application in any manner not otherwise expressly authorized by law.
3) Term of License – Termination. The license under this EULA shall terminate immediately upon the termination or expiration of the Subscriber’s subscription term. Synkron may terminate any End User license and the End User’s access to the Application at any time, for any reason, in its sole discretion.
4) Reservation of Intellectual Property Rights.
a. Trademarks. Synkron is the sole owner of the trademarks Synkron™ and Synkwise®, and it reserves all rights to their use. Any unauthorized use of its trademarks may subject End User to civil and criminal penalties under state and federal trademark laws and international treaties.
b. Copyright Interests. As between Synkron and End User, Synkron is the sole and exclusive owner of all copies of, and all copyright interests in, the Application and all derivative works and output of the Application. All rights not specifically granted in this EULA are reserved by Synkron. End User agrees to use the Application only for the Licensed Use set forth in this EULA and for no other purpose. As a continuing condition of the license granted in this EULA, End User agrees that they shall use their best efforts to protect the Application from unauthorized access, use, reproduction, publication or distribution. Any unauthorized use of the Application or the server(s) upon which it is hosted may subject End User to civil and criminal penalties under federal copyright law and international treaties.
5) Application Hosting.
a) Synkron shall, as a SaaS provider, host on Synkron-managed servers Subscriber’s customized licensed Application. Synkron will locate and manage the application host server(s) in a commercially reasonable manner. Synkron will make commercially reasonable efforts to enable End Users to access the Application on a consistent, full-time basis. However, End User understands and acknowledges that the availability and reliability of internet-mediated access to the Application is contingent upon multiple factors outside of Synkron’s control, and that Synkron does not warrant uninterrupted or error-free use of the Application. Synkron may, in its discretion, make maintenance equipment resets, perform hardware and software maintenance and conduct backup operations resulting in the temporary suspension of access to the Application. Synkron will make good faith efforts to have such temporary service suspensions occur outside of Subscriber’s normal hours of operation.
b) End User shall use the Application and Synkron’s Application hosting services in strict compliance with: i) the scope of, and limitations on, the authority granted to End User by their authorizing Subscriber; and ii) all local, state, federal and international laws and regulations, including, without limitation, all laws and regulations relating to privacy and medical records. End User shall not violate the rights of Subscriber or any third parties in using the Application. End User shall be solely responsible for accurately using the Application to document resident care and medication, and all other resident data.
c) End User shall keep its Application user password confidential so that no unauthorized persons can access the Application or Subscriber’s files on the server(s). End User shall immediately notify Synkron and their authorizing Subscriber if End User discovers any unauthorized use of its account passwords. End User shall be solely responsible for any unauthorized use or misuse of Subscriber’s files or data on the server arising from the use of End User’s password or other access credentials.
d) End User shall not use, nor allow others to use, Synkron’s server to send or receive unsolicited commercial e-mail (“spam”) or malware to any person or entity on the internet or the Synkwise platform, and will take immediate steps to prevent any other person or entity from spamming or propagating malware through its authorizing Subscriber’s account with Synkron. End User shall not use the Synkwise platform to transfer or receive any obscene, malicious, infringing or other unlawful content.
e) Although Synkron makes a commercially reasonable effort to secure its Application and Application servers, Synkron does not warrant that the Application or Application servers, or any material downloaded from the servers, will at all times be safe or free of viruses, spyware, ransomware, or other destructive malware or mechanisms. End User will be solely responsible for obtaining and using its own anti-virus and internet security software and appliances, and for identifying and avoiding social engineering threats, such as phishing attacks.
f. Synkron reserves the right, without prior notice: (i) to revise the Application and any of its modules and its underlying data at any time, provided that Synkron shall make commercially reasonable efforts to notify End User’s authorizing Subscriber no less than 5 business days in advance of any Application changes that materially affect the user interface or functionality of the Application; (ii) to change the address of the host server site(s) of the Application; and (iii) to amend any user or privacy policies in effect on the site(s) hosting the Application. Current site use and privacy policies, if any, will be available by link on the home page(s) of the Application, and End User’s accessing the Application in the future through use of their registered password constitutes End User’s acceptance of the then-current version of the Application, its underlying data, and its then-current site use and privacy policies.
6) Confidential Information. End User acknowledges that they will be accessing, or have access to, highly confidential information belonging to Subscriber and/or residents at Subscriber’s residential care facility (“Confidential Information”), and that such information is protected under state and federal laws and regulations (“Privacy Rules”). End User represents and warrants that they will: (i) keep the Confidential Information strictly confidential, and refrain from disclosing such information to any other person or entity without the express written consent of the parties owning or controlling such information except as specifically authorized and required to perform their obligations on behalf of Subscriber; (ii) use the Confidential Information solely for the purpose of performing their duties for the Licensed Use on behalf of Subscriber; and (v) upon demand, immediately surrender to the owner of the Confidential Information all notes, records, documentation, models, software, databases and other items or materials containing such Confidential Information. In the event End User has entered into a Business Associate Agreement (“BAA”) with the Synkwise Subscriber, End User agrees to use the Application in strict compliance with the BAA. In no event shall End User export, publish or otherwise transfer or download resident information, including using screenshots and database records, from the Synkwise platform. End User acknowledges that Synkron requires all of its workforce members to undergo HIPAA compliance training and to abide by policies and procedures that safeguard the confidentiality, integrity, and availability of ePHI.
7) Nature of Relationship. The parties acknowledge and agree that this EULA creates a licensing relationship and that it does not constitute or create an employment, joint venture, partnership or franchise relationship. End User warrants that they have the right to enter into this EULA pursuant to an active subscription agreement held by their authorizing Subscriber, and that their use of the Application will not violate any contractual obligations to which they are subject.
8) Disclaimer of Professional Advice. The information and other output provided by and through the Application is not intended to constitute medical advice, legal advice, tax or accounting advice, or any other advice of a professional nature. The content and output of the Application should not be used as a substitute for professional advice. End User should always consult with their authorizing Subscriber or their own attorney, accountant, medical professionals and other applicable professionals for advice before making important business or personal decisions or advising others. End User’s reliance on the data and other output provided by the Application is solely at their own risk.
9) Limitation of Warranties. Other than the warranties expressly set forth in this EULA, Synkron makes no other warranties, express or implied. Synkron specifically disclaims, to the fullest extent allowed by applicable law, all implied warranties and conditions, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose and any warranties under the Uniform Computer Informational Transactions Act, as may be adopted by any jurisdiction from time to time. The Application, and the server(s) upon which the Application is hosted, including all materials and information contained therein and any products or services made available through the host site(s), are provided on an “as is” and “as available” basis. Synkron does not guarantee or warrant that access to the host site(s) of the application will be uninterrupted or error-free, or that any defect in the Application will be corrected.
10) Limitation of Remedies. In no event shall Synkron be liable to End User for any indirect, incidental, special or consequential damages or lost profits arising out of or related to this EULA or the performance or breach thereof, even if Synkron has been advised of the possibility thereof. In particular, Synkron shall not be liable for the loss of information arising from the use of, or inability to use, the Application. Synkron’s liability to End User, if any, whether arising under contract or based upon a claim of strict liability, negligence or some other tort or statutory claim, shall in no event exceed the total amount of the payments made by the End User’s authorizing Subscriber to Synkron during the 3-month period preceding the event(s) upon which a claim of liability is predicated. The warranties and remedies set forth above are exclusive and in lieu of all others, oral or written, express or implied. End User acknowledges and agrees that the limitations of warranties and remedies contained herein are a material basis for the license rights granted herein, and that Synkron would not offer such license rights and services without End User’s agreement to such limitations.
11) Indemnification. End User agrees to indemnify, defend and hold Synkron and its officers, directors, members, managers, employees, agents and affiliates harmless from all claims, demands, liabilities and damages of any kind or nature, including, without limitation, attorney’s fees and litigation costs, arising out of or related to End User’s use of, or inability to use, the Application.
12) Communication/Notices. All communications regarding the Application and End User’s use of the Application pursuant to this EULA shall be made through the designated representatives of Synkron and the End User’s authorizing Subscriber, as set forth in Synkron’s SaaS Subscription Agreement with the Subscriber, as may be amended from time to time.
13) Notice of Default. Neither Synkron nor End User shall be deemed in default until the party claiming the default has given written notice to the other party and the claimed default has not been remedied within 30 days after such notice is delivered.
14) Remedies Upon Default. In the event of a default, the non-defaulting party shall be entitled to pursue all remedies available to it under the laws of the state of Washington and applicable laws of the United States. In addition, the parties agree that in the event of a breach of any of the covenants contained in Sections 1, 2, 4, 5 or 6 of this EULA, such a breach will result in irreparable and continuing damage in an amount which is not readily ascertainable and for which there will be no adequate remedy at law. In the event of any breach of such covenants, the non-breaching party shall be entitled to injunctive relief and such other and further relief, including damages, as may be provided by law.
15) Attorney’s Fees. If a party to this EULA breaches any term of this EULA, then the other party shall be entitled to recover all expenses of whatever form or nature, costs and attorney’s fees reasonably incurred to enforce the terms of this EULA, whether or not suit is filed, including such costs or fees as may be awarded in arbitration or by a court at trial or on appeal. In addition, in the event either party to this EULA becomes a debtor subject to the United States Bankruptcy Code, the non-debtor party shall be entitled to recover any expenses, costs and fees, including attorney’s fees, incurred in connection with enforcing its rights against the debtor party, whether those rights arise under this contract or involve matters arising solely under the Bankruptcy Code.
16) Dispute Resolution/Arbitration. In the event a dispute arises between the parties relating to or arising out of this EULA, the parties agree to work in good faith to resolve such dispute informally. If the parties are incapable of resolving such dispute informally, any party may submit the dispute to mediation with the Arbitration Service of Portland, located in Portland, Oregon (“ASP”), and such mediation shall occur under the ASP’s then current mediation rules. All parties shall participate in good faith in such mediation. In the event such mediation does not result in a resolution of the dispute, the dispute may, at the election of both parties, be resolved by binding arbitration, and a party may then, but only then, initiate an arbitration proceeding with the ASP under ASP’s then current arbitration rules. In such arbitration, the arbitrator’s fees shall be shared equally by the parties during the course of the arbitration, but shall be recoverable as costs to the prevailing party. The arbitrator will control the scheduling of all events and will resolve all disputes, including disputes regarding pretrial procedure and discovery. The decision of the arbitrator (or arbitration panel) will be binding, and any party may submit the decision as an enforceable judgment with any court of competent jurisdiction. Nothing herein shall preclude a party from seeking declaratory or injunctive relief in a court of competent jurisdiction.
17) Non-Waiver. The failure or delay of any party to require performance of, or to otherwise enforce, any condition or other provision of this EULA shall not waive or otherwise limit that party’s right to enforce, or pursue remedies for the breach of, any such provision or condition. Any waiver by a party of any particular condition or provision of this EULA, including this non-waiver provision, shall not constitute a waiver or limitation on that party’s right to enforce performance of, or pursue remedies for the breach of, any other condition or provision of this EULA. Any waiver of a party’s rights under this EULA must be contained in a writing signed by the waiving party.
18) Successor Interests. This EULA is not voluntarily assignable or transferable by End User. Subject to this restriction, this EULA is binding upon and shall inure to the benefit of the successors, assigns and bankruptcy estates of each of the parties.
19) Governing Law. This EULA shall be governed by and construed in accordance with the laws of the state of Washington, without regard to or application of Washington’s conflict of law provisions, and by applicable United States copyright law.
20) Jurisdiction, Venue. Subject to Section 16 above, the parties agree that any suit, action or arbitration proceeding arising out of or relating to this EULA shall be brought in Clark County, Washington, and the parties expressly consent to the personal jurisdiction over them of any state or federal court in Clark County, Washington. The parties reserve their rights under the Federal Rules of Civil Procedure to remove an action to federal court.
21) Severability. If any court of competent jurisdiction finds any term of this EULA, or of any other document or instrument referred to or contemplated in this EULA, to be invalid or unenforceable, such determination shall not affect the validity and enforceability of the remainder of the EULA, and the court shall enforce the EULA in such a manner as to give substantial effect to the intent of the parties as expressed in the EULA.
22) Paragraph Headings. All paragraph headings in this EULA appear for convenience of reference, and shall not affect the meaning or interpretation of the EULA.
23) Amendments. This EULA may be amended or modified only by a written instrument executed by the parties which expressly states the intent of the parties to modify or amend this EULA.
24) Entire Agreement. This EULA shall constitute the entire agreement between the parties pertaining to the subject matter of the EULA and shall supersede all prior discussions, negotiations, understandings, representations and agreements, whether oral or written. All terms of this EULA, including its recitals, are contractual.