Forcura Terms and Conditions
These Forcura Terms and Conditions (“Terms”) by and between Forcura, LLC (“Forcura”) and the WellSky customer listed on the applicable Order Form (“Customer”) govern Customer’s access to and use of one or more applications (each, an “Application”) provided by Forcura.
- Definitions. The following terms shall have the meanings ascribed to them in these Terms:
(a) “Authorized User(s)” means, collectively, the employees of Customer, its affiliates, and any physician clinics, therapy centers, hospitals, hospital clinics, or other referral agents accessing or using the Applications solely on behalf and for the benefit of Customer and solely for Customer’s internal healthcare business operation purposes only.
(b) “Customer Data” means all data, information, and records stored, submitted, or inputted by Customer or an Authorized User into or through the Applications.
(c) “Documentation” means any digital, printed, or any other form of technical, user, and reference manuals, notes, instructions and summaries, technical release notes, specifications, and any other supporting documentation related to the Applications.
(d) “Error” means a reproducible defect or combination of defects in the Application that results in a failure of the applicable Application.
(e) “Severity 1 Error” means an Error in which Customer’s business is severely impacted or there has been a critical work stoppage created by the Error, or the Applications are non-operational.
(f) “Severity 2 Error” means an Error that affects the overall functionality of the applicable Application, but the key elements are functioning properly with possible workarounds or the Application is operational but a significant feature is not operating properly and there is an immediate impact on Customer.
- License Grant. Subject to these Terms, Forcura hereby grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable license during the term of Customer’s license agreement with WellSky to: (i) access and use the Applications solely for Customer’s internal healthcare business purposes; and (ii) to permit its Authorized Users to access and use the Applications solely in connection with the operation of Customer’s healthcare business. Customer is solely responsible and liable for, and Forcura hereby expressly disclaims all liability with respect to, all acts and omissions of any Authorized User.
- Prohibited Uses. Neither Customer nor any Authorized User may: (i) make any copy, reproduction, or derivative work of any of the Applications; (ii) make any copy or derivative work of or modification to any of the documentation for the Applications; (iii) sell, assign, convey, publish, or otherwise transfer its rights to use the Applications; (iv) sublicense the Applications to any third party or otherwise allow any other person or entity to access or use the Applications other than Authorized Users; (v) decompile, disassemble, reverse engineer, or modify in any way, any of the Applications, or otherwise attempt to derive or gain access to the source code of the Applications, in whole or in part; (vi) reconfigure or redeploy the Applications in a manner not expressly authorized by Forcura; (vii) bypass or breach any security device or protection used by the Applications or access or use the Applications other than by an Authorized User; (viii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Applications or Forcura’s provision of the Applications to any third party, in whole or in part; (ix) use the Applications in connection with any illegal or unlawful activity or in a manner that causes, results in, encourages, solicits, or publicizes a crime or illegal or unlawful activity; and (x) remove, alter, or obscure any proprietary notice or legend of Forcura, its suppliers, or licensors upon any and all copies of the Applications or any documentation therefor.
- Reservation of Rights. Subject to the limited rights expressly granted in these Terms, Forcura reserves all rights, title, and interests in and to the Applications, including without limitation all derivative works, updates, or customizations thereof, including without limitation all intellectual property and proprietary rights therein.
- Customer Data. Customer exclusively owns all rights, title, and interest in and to all Customer Data. Forcura may use on a perpetual, irrevocable basis Customer Data that has been de-identified or anonymized as permitted by applicable law, and any and all insights, usage statistics, analytic data, benchmarking data, and similar types of insights and data that describe or relate to the performance, features, or functionality of the Applications for Forcura’s business purposes so long as such use does not identify a natural person or Customer as the source of the data.
- Suggestions and Feedback. Forcura shall have, and Customer hereby grants, a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual right and license to use, modify, and incorporate into the Applications any ideas, suggestions, enhancements, recommendations, or other feedback provided by Customer, its Affiliates, or their respective Authorized Users.
- Warranty; Disclaimer.
(a) Warranty. Forcura warrants that the Applications will perform in accordance with the applicable Documentation. In the event of a breach of this warranty that results in a Severity 1 Error or Severity 2 Error (each, a “Warranty Error”) with respect to the Applications, and Customer provides notice thereof to Forcura, Forcura will repair or provide a workaround for the Warranty Error so that the applicable Application performs in accordance with the applicable Documentation in all material respects. If, however, after repeated efforts (not to exceed thirty (30) days), Forcura is unwilling or unable to correct or provide a workaround for the Warranty Error so that the applicable Application performs in accordance with the foregoing functionality warranty, Customer may terminate these Forcura Terms, WellSky shall provide Forcura with written notice thereof, and Forcura shall provide a refund of any prepaid and unearned subscription fees for the Application terminated as of the date the breach of the functionality warranty was first reported for such Application by Customer.
(b) Disclaimer. Except as set forth in Section 7.a., The Applications are provided “as is,” and Forcura makes no warranties of any kind, whether express, implied, statutory, or otherwise, and specifically disclaims all implied warranties, including any warranties of merchantability, results, noninfringement, or fitness for a particular purpose, or that the operation of the Applications will be uninterrupted or error-free or that all errors will be corrected or will meet Customer’s or any other person’s requirements. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE APPLICATIONs are ADMINISTRATIVE TOOLs DESIGNED TO ASSIST CUSTOMER’S DOCUMENT WORKFLOW IN THE OPERATION OF CUSTOMER’S HEALTHCARE BUSINESS OPERATIONS. HOWEVER, CUSTOMER REMAINS SOLELY RESPONSIBLE FOR ITS HOME HEALTH SERVICES AND ALL CODING, DATA ELEMENTS, DOCUMENTATION, AND CLAIMS FOR REIMBURSEMENT RELATED THERETO. THE APPLICATIONs DO NOT PROVIDE MEDICAL, LEGAL, OR BILLING ADVICE. FORCURA MAKES NO WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED IN CONNECTION WITH OR RESULTS OBTAINED THROUGH USE OF THE APPLICATIONs, AND FORCURA SHALL HAVE NO LIABILITY FOR ANY CLAIM ARISING FROM ANY USE OF SUCH INFORMATION OR RESULTS.
- Indemnification.
a. Customer shall indemnify, defend, and hold harmless Forcura for any third-party claims and all resulting liabilities, losses, damages, costs, and expense (including reasonable attorneys’ fees and expenses) arising out of or resulting from Customer’s use of the Applications in breach of these Terms.b. Forcura shall indemnify and defend Customer from any third-party claim alleging that the use of the Applications by Customer as contemplated by these Terms infringes a U.S. patent issued as of the effective date of these Terms or any copyright, trademark, or trade secret rights of a third party. Forcura shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such claim or agreed to by Forcura in any settlements arising out of such claim; provided, that (i) Customer promptly gives written notice of the claim to Forcura; (ii) Customer gives Forcura sole control of the defense and settlement of the claim (provided that Forcura shall not settle any claim unless it unconditionally releases Customer of all liability); (iii) Customer provides to Forcura, at Forcura’s cost, all reasonable assistance; and (iv) the alleged infringement does not arise as a result of the combination, operation, or use of the Application with third party software, services, or other products or materials not furnished or authorized by Forcura, failure by Customer to timely implement any updates made available to Customer by or on behalf of Forcura, or Customer’s or an Authorized User’s violation of any laws, rules, and/or regulations applicable to its business. In the event of such a claim or threat thereof, Forcura may, in its sole discretion, (a) obtain a license for the infringing part of the Application, (b) remove or alter the infringing part of the Application, so long as such removal or alteration does not materially affect the functionality of the Application, or (c) terminate these Terms and Customer’s license to the applicable Application. THIS SECTION 8.b. STATES THE ENTIRE OBLIGATION AND LIABILITY OF FORCURA, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. - Limitation of Liability. In no event shall Forcura have any liability to Customer for any lost profits, loss of data, or for any indirect, special, incidental, punitive, or consequential damages, however caused and whether in contract, tort, or under any other theory of liability, whether Forcura has been advised of the possibility of such damages. In no event shall Forcura’s total aggregate liability arising out of or related to these TErms, whether in contract, tort, or under any other theory of liability, exceed an amount equal to the fees paid by Customer for use of the Applications in the six (6) month period prior to the event giving rise to the claim.
- Effect of Termination. Upon expiration or termination of the license agreement between Customer and WellSky for any reason, Customer’s rights to access and use the Applications granted under these Terms shall immediately terminate, and Customer shall have the right to contract directly with Forcura.
