BY THIS AGREEMENT, between Health Outcomes, Inc. a Washington corporation having its principle offices at 201 East Rosemary Street in Chapel Hill NC 27514, DBA TeleSage, Inc., herein referred to as ‘LICENSOR’ and the person or entity acknowledging this agreement, herein known as ‘LICENSEE’, do hereby agree to the terms provided below.

 

WHEREAS the American Psychiatric Association has the exclusive worldwide rights in all languages to the Structured Clinical Interview for DSM-5®, SCID-5, Copyright ©2015, in all formats and media, and has developed and is the sole and exclusive owner of all rights with respect to the Diagnostic and Statistical Manual of Mental Disorders, DSM-5, Copyright ©2013, including, but not limited to copyright, publishing, and trademark rights; AND, LISENSOR has the rights to the NetSCID Software which was created by Health Outcomes, Inc. and presents questions and responses in accordance with the clinician-administered Structured Clinical Interview for DSM Diagnoses (SCID), which reflects diagnostic criteria listed in the Diagnostic and Statistical Manual for Mental Disorders; AND, LISENSOR has the exclusive worldwide rights to the PORTAL Software which was created by Health Outcomes, Inc. and is the software platform on which the NetSCID runs.

 

WHEREAS LICENSEE wishes to acquire a non-exclusive and non-transferable license from LICENSOR to use the NetSCID and PORTAL.

 

NOW THEREFORE, in consideration of the promises and agreements set forth herein, and with intent to be legally bound hereby, the parties agree as follows:

 

1. License Grant.

1.1 Subject to the terms of this Agreement, LICENSOR hereby grants to LICENSEE a limited nonexclusive, nontransferable right to use the NetSCID/PORTAL software service.

1.2 LICENSEE shall not abridge, modify, alter, or adapt the WORK, including the text, captions, graphics, or illustrations contained in the WORK, without the prior written approval of LICENSOR. Notwithstanding the foregoing LICENSEE may use the NetSCID/PORTAL software service to configure the SCID for proper administration.

1.3 LICENSEE agrees that it will not use the NetSCID/PORTAL, or any portion thereof, in any other manner or in any other medium than that set forth in this Agreement.

 

2. Uptime:

2.1 TeleSage will make every effort to keep the NetSCID/PORTAL site up and running 24/7, but the site will be unavailable at times in order to perform routine maintenance, and in order to make upgrades to the software.

 

3. Security and Confidentiality.

3.1 The NetSCID/PORTAL is available as a web service. TeleSage will make reasonable efforts to protect all data. The LICENSEE or his designee agrees to pre-register all users and assign user permissions for NetSCID users. Users may be assigned permission to: ‘Administer Interviews’, ‘View Reports’, ‘View Data’, and/or ‘Download Data’. User access to reports and data can be granted for the entire project/clinic, a subset of sites, or to a single user.

3.2 TeleSage will to the best of its ability assure the privacy and confidentiality of patient data using a rigorous set of procedures. TeleSage reserves the right to use data gathered using the NetSCID to enhance the software program, for research purposes, and to explore the value of outcomes tracking systems.

3.3 TeleSage may transfer de-identified data to NIH for subsequent use in approved research projects. Users are strongly encouraged to use the NIH data archive identification algorithm to uniquely identify individuals. Creation of an NIMH ID requires entry of the patient’s name, date of birth, gender at birth, and place of birth, as listed on the birth certificate.

3.4 All data will be stored on the TeleSage password-protected and fully HIPAA compliant servers. Data is encrypted and backed up to offsite locations several times each day.

3.5 Once data are downloaded from the TeleSage servers by an authorized user, it is the user’s sole responsibility to ensure the security, privacy, and confidentiality of patient/participant data using their own rigorous human subjects and HIPAA-compliant procedures.

 

4. Copyright.

4.1 The Structured Clinical Interview for DSM-5-Research Version, SCID-5-RV, Copyright © 2015 Michael B. First, M.D., Janet B. W. Williams, Ph.D., and Robert L. Spitzer, M.D., is used with permission from the American Psychiatric Association.

4.2 Unless authorized in writing by the APA, no part may be reproduced or used in a manner inconsistent with the APA’s copyright. This prohibition applies to unauthorized uses or reproductions in any form. The American Psychiatric Association is not affiliated with and is not endorsing this product.

 

5. LIMITATIONS OF LIABILITY & DISCLAIMER OF WARANTIES.

5.1 LICENSOR EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES (INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN RELATION TO LICENSEE’S USE OF THE WORK IN ITS PRODUCT.

5.2 LICENSOR WILL NOT BE LIABLE TO LICENSEE, OR ANY THIRD PARTY FOR LOSS OF PROFITS, LOSS OF USE OR FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, EVEN IF IT IS AWARE OF THE POSSIBILITY THEREOF. LICENSEE AGREES THAT THE ENTIRE LIABILITY OF LICENSOR WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE FEE PAID FOR THE LICENSE.

5.3 LISCENSOR SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE OR ANY PARTY CLAIMING BY OR THROUGH LICENSEE FOR THE ACCURACY, TIMELINESS, COMPLETENESS OR CONTINUED AVAILABILITY OF THE NETSCID/PORTAL SOFTWARE SERVICE OR FOR ANY DAMAGES ARISING OUT OF LICENSEE’S USE OF THE NETSCID/PORTAL SOFTWAR SERVICE OR ANY COMPONENT THEREOF, INCLUDING USE FOR MISSION-CRITICAL OR EMERGENCY APPLICATIONS.

5.4 AS A MATERIAL PART OF THE CONSIDERATION PAID BY LICENSEE UNDER THIS AGREEMENT, LICENSEE AGREES THAT IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY PARTY CLAIMING THROUGH LICENSEE FOR, AND LICENSEE HEREBY WAIVE LICENSEES RIGHT TO CLAIM, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, BUSINESS OR REVENUES, LOSS OF THE USE OF THE NETSCID/PORTAL SOFTWARE SERVICE OR ANY ASSOCIATED PRODUCTS, LOSS OF DATA, IMPROPER OR UNAUTHORIZED ACCESS TO OR INTERCEPTION OF ANY COMMUNICATION OR OTHER NON-PUBLIC INFORMATION, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT SERVICES, DOWNTIME COSTS OR THE CLAIMS OF YOUR CUSTOMERS FOR SUCH DAMAGES) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN AGREEMENT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, YOUR INABILITY TO USE THE NETSCID/PORTAL SOFTWARE OR SERVICE, OR ANY PART THEREOF.

5.5 THE SERVICE IS PROVIDED "AS IS" AND "AS AND WHEN AVAILABLE", WITHOUT WARRANTY OF ANY KIND. LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND THAT YOU WILL HAVE OR ENJOY UNINTERRUPTED USE OR OPERATION OF THE SERVICE, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE OR DEFINED PERIOD OF TIME. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND/OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE CONDUCT ARE HEREBY EXCLUDED. LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE FOR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS WITH RESPECT TO ANY SERVICE PROVIDED BY ANY THIRD PARTY THROUGH LICENSOR. LICENSEE’S RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY SERVICE SHALL BE SOLELY AGAINST SUCH THIRD PARTY. IN ADDITION, LICENSOR DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICE OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICE. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICE ARE AT YOUR SOLE RISK AND DISCRETION AND THAT LICENSOR WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY HARM OR DAMAGE TO LICENSEE, LICENSEES PROPERTY OR LICENSEE’S Client.

 

6. Disclaimer of Medical Liability.

6.1 The SCID-5, the DSM-5, and the PORTAL are not a substitutes for, are not designed to, and do not provide, medical advice. It is a guide for clinicians. Every clinician should use his or her own medical judgment and skill in diagnosing mental illness. LICENSOR shall not be liable to LICENSEE or any third party if readers of the SCID-5-RV and/or DSM-5 disregard professional medical advice, or delay in seeking such advice, because of something they have read in the SCID-5-RV and/or the DSM-5. LICENSOR shall not be liable to LICENSEE or any third party if readers rely solely on information in the SCID-5-RV and/or DSM-5 in making diagnosis, or in place of seeking professional medical advice. RELIANCE ON ANY INFORMATION CONTAINED IN SCID-5 AND/OR DSM-5 AND/OR NetSCID-5, AND/OR PORTAL IS SOLELY AT THE READER’S OR USER’S OWN RISK.

6.2 Moreover, LICENSOR is not responsible or liable to LICENSEE or any third party for any advice, course of treatment or diagnosis provided by a physician or other health care professional. LICENSOR neither recommends nor endorses any specific tests, products, procedures, opinions or other information that may be recommended to a reader or user by a health care professional.

 

 

7. Damages.

 

7.1 In the event that LICENSEE breaches this Agreement, the parties agree that damages will not provide an adequate remedy for LICENSOR. Therefore, in the event of a breach or threat of breach, LICENSOR shall be entitled to seek injunctive relief, in addition to any other relief available at law or in equity.

 

8. Indemnification.

 

8.1 Licensee agrees to indemnify and hold harmless Licensor of and from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys' fees and costs, arising out of or relating to the use or misuse of the NetSCID/PORTAL by licensee. In no event shall the maximum liability hereunder exceed the amount actually paid to licensor under this contract.

 

9. Governing Law.

 

9.1 This Agreement shall be construed in accordance with the laws of the State of North Carolina applicable to agreements executed and wholly performed within that State without giving effect to anybody of law governing conflicts of laws. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.

 

10. Entire Agreement.

 

10.1 This Agreement represents the entire understanding and agreement between the Parties hereto and may be modified or waived only by a separate writing signed by both Parties expressly so modifying or waiving this Agreement.

 

11. Severability.

 

11.1 Should any part of this Agreement be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of this Agreement should not invalidate the remaining portions thereof, and they shall remain in full force and effect.

 

11.2 It is further agreed that if part of the Agreement is determined invalid, either party may open negotiations solely with respect to a substitute for such Article, Section, or portion, within two (2) weeks after a ruling has been made

 

12. Termination.

 

12.1 LICENSOR shall have the right to immediately terminate this Agreement by providing written notice of such termination to LICENSEE in the event that LICENSEE fails to abide by any of the terms and conditions of this Agreement, or in the event that LICENSEE’s continued use of the WORK or distribution of the PRODUCT is reasonably determined by LICENSOR to be materially detrimental to the interests of LICENSOR. In the event of a termination of this Agreement for any reason, all rights with respect to the LICENSEE shall automatically revert back to LICENSOR. Termination of this Agreement shall be without prejudice to any moneys already paid or then due or to become due from LICENSEE to LICENSOR and without prejudice to any rights of either party at law or in equity.