KontactIntelligence Master Subscription Agreement

EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, you agree to the following terms and conditions of the KontactIntelligence agreement.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU", "YOUR", OR LICENSEE SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on May 19, 2013. It is effective between You and Us as of the date of You accepting this Agreement. This Agreement is the standard for all versions of KontactIntelligence, functionality available to Licensee will vary depending of version selected:

  1. Definitions.
    • "Affiliate" means any entity which are directly or indirectly manage, is managed by, or is under common management with the subject entity.
    • "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. "Non-KontactIntelligence.com Applications" means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
    • "Order Form" means the documents for placing orders hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
    • "Purchased Services” or “Software Application" means Services that You or Your Affiliates purchase under an Order Form.
    • "Services” means the products and services that are ordered by You under the Order Form and made available by Us online via the customer login link at https://www.kontactintelligence.com and/or other web pages designated by Us. “Services” exclude KontactIntelligence.com Applications.
    • "We," "Us", "Our", "Licensor" means the KontactIntelligence.com company.
    • "You", "Your", or “Licensee” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
    • "Your Data" means all electronic data or information submitted by You to the Purchased Services.
  2. LICENSE. Subject to the terms and conditions contained herein, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor for the benefit of Licensee, a limited license to use and operate Licensor’s software application, more particularly described on Exhibit A attached hereto and incorporated by reference (herein collectively referred to as "Software Application” or “Purchased Services"), for the purposes and uses as set forth in paragraph 8 hereof. This license shall include Your right to all upgrades, modifications, enhancements and new releases for the Purchased Services (collectively "Upgrades") available for the modules that they are licensed to use. All such Upgrades shall be included in the term "Purchased Services" for purposes of this Agreement. Licensor owns all title in the Software Application and accompanying printed materials. Licensee obtains no rights other than the license granted pursuant to this Agreement. Licensee acknowledges and agrees that the Software Application is proprietary and remains the property of Licensor. Licensee agrees not to disclose the confidential aspects of the Purchased Services consistent with the provisions of paragraph 13 below, and agrees not to remove any of Licensor's product identification or trademark, copyright or proprietary notices from the Software Application. The initial term of this Agreement shall be for the period selected during registration commencing on the date hereof, and the term of this Agreement shall be automatically extended and renewed for successive one (1) year periods based on selection made during new license registration, subject always to termination pursuant to paragraph 12 below.
  3. SUBSCRIPTION FEES AND SUPPORT FEES. For the license grant and other services set forth in this Agreement, Licensee shall pay to Licensor a fee based on matrix described during the registration process and shall be due and payable on the Effective Date. Any payment that is due hereunder and not received by Licensor within thirty days of Licensee receiving an invoice, shall accrue interest at a rate equal to the lesser of one and one-half percent per month or the maximum rate allowed by law.
  4. INSTALLATION. No installation of KontactIntelligence software will be required from Licensor on licensees computer systems. Other than the Purchased Services provided by Licensor, Licensee shall provide and make available all other computer equipment necessary for the successful and compatible operation of the Purchased Services including without limitation the computer hardware and software described on Exhibit B attached hereto and incorporated by reference. Such software and hardware must be installed and in working order prior to being able to use the Purchased Services. Installation shall be deemed complete upon Licensee's determination in good faith that the Purchased Services operates according to the specifications as set forth in Exhibit A attached hereto and incorporated herein by reference and Licensor's warranties set forth herein.
  5. SERVICES; TRAINING; SUPPORT; UPGRADES. Licensor shall provide the following services and Purchased Services Upgrades: (a) During the current and any renewal term of this Agreement (for the fee, in part, specified in paragraph 2 above), the Licensor shall provide the applicable software necessary for the operation of the Purchased Services (described in Exhibit A). (b) Licensor shall conduct training and initial implementation for the employees to learn the use and operation of the Purchased Services, concurrently via on-line training and teleconference as selected on the Order Form. (c) During the current and any renewal term of this Agreement (for the fees, in part, specified in paragraph 2 above), the Licensor shall provide the Licensee with support services reasonably necessary for Licensee's full use of the Purchased Services. Such support is available during normal business hours between 8am and 5pm Central Standard Time Monday through Friday, excluding holidays. All support requests will be addressed within twenty-four hours of the initial request from Licensee. Any requests made during weekends or holidays will be addressed on the next business day. (d) Licensor shall provide competent, fully trained personnel (on a timely basis) to provide the services set forth in this paragraph 4 and as otherwise set forth in this Agreement. (e) During the current and any renewal term of this Agreement, Licensor shall provide Licensee with all Upgrades made by Licensor pertaining to the Purchased Services. When and as Licensor makes any Upgrades to licensed modules, Licensor shall provide them to Licensee at no additional charge. Upgrades for purposes of this document are defined as enhancements to the modules the client has purchased and is licensed to use. Licensee shall not be permitted to reject any Upgrades which Licensor deems necessary for the efficient and successful operation of the Purchased Services. Licensor shall provide Upgrades to Licensee accompanied by such documentation and instructions concerning such Upgrades as may be reasonably necessary for their use. All new Upgrades shall be considered integral to the Purchased Services for purposes of this Agreement and the terms of this Agreement shall apply to such Upgrades. (f) Licensor shall implement and maintain administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any and all electronic data created, received, maintained, or transmitted on behalf of Licensee.
  6. REIMBURSEMENT FOR ON SITE SET-UP AND TRAINING. If on site set-up and training is requested by licensee, licensee shall reimburse Licensor for the reasonable expenses of meals, travel and lodging associated with onsite training of the Purchased Services plus an administrative fee of 15%. Licensee also shall reimburse Licensor for any such expenses directly related to Licensor's providing the support services set forth in this Agreement plus an administrative fee of 15%. An invoice with appropriate supporting documentation including photocopied receipts shall be provided by Licensor to Licensee for each of the above reimbursable expenses, no less often than monthly as the expenses are incurred. Such expenses must be pre-approved by You.
  7. TAXES. Licensee, in addition to the other amounts payable under this Agreement, shall pay all sales, use and similar taxes that are levied or imposed by federal, state or local governmental agencies by reason of the transactions contemplated by this Agreement.
  8. WARRANTIES. (a) Licensor expressly warrants that: (i)it owns all right, title and interest in and to the Software Application; (ii) the Software Application constitutes all the applications or systems software or interfaces required by Licensee to operate the Software Application; (iii) the Software Application, as delivered to and installed for the Licensee, will conform, as to all significant operational features as set forth in Exhibit A and shall be free of material defects in workmanship and materials, and shall operate on or with the hardware identified in Exhibit B; (iv) the Software Application shall not require additional applications or systems software or interfaces in order to complete the implementation of the Software Application except as set forth in Exhibit B; (v) the software provided by Licensor which is necessary for the operation of the Software Application shall be free of any defect in material of the media in which the Software Application is delivered, or any virus or other program routine designed to erase or otherwise harm Licensee's hardware, data or other programs; (vi) any services provided by Licensor hereunder shall be provided in a workmanlike and professional manner by competent personnel; and (vii) Licensor is the owner of the Software Application and has the right to convey the license set forth in this Agreement, and Licensee's use of the Software Application in accordance with the terms of this Agreement shall not infringe any third-party patents, copyrights, trade secret or any other property rights, except that Licensor makes no warranty regarding any applications (including Licensee's use thereof) which are programmed and/or scanned into the Software Application by Licensee.
    EXCEPT AS SET FORTH ABOVE, THE LICENSOR MAKES NO OTHER REPRESENTATIONS, WARRANTIES (EXPRESS OR IMPLIED) CONCERNING THE SOFTWARE APPLICATION, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING.
    (b) In the event of discovery of any defect or malfunction for which the Licensor is responsible under this Agreement, the Licensee shall promptly notify Licensor of any such problem and provide the Licensor with reasonable information to allow Licensor to verify and reproduce the error. In the event such error creates a materially adverse effect on Licensee's use of the Purchased Services in a way that interferes with an immediate, urgent need of Licensee, Licensor shall respond to such report on the same business day as the report if possible (but in no event later than three (3) business days after the report), and thereafter to provide technical assistance to diagnose and correct the defect or malfunction.
  9. LIMITATION ON USE. Licensor hereby grants to Licensee the right to use and operate the Software Application by approved licensed users. The Purchased Services shall not be operated by unauthorized/unapproved users without Licensor's prior written consent. Only Licensee and approved licensed users shall be permitted to use and operate the Purchased Services licensed hereby. Licensee's use of the Purchased Services shall be limited to the number of Users selected during registration. Additional licenses can be added at any time by contacting KontactIntelligence.
  10. MODIFICATIONS. Except as otherwise set forth in this Agreement, Licensee shall not, without obtaining Licensor's prior written consent, (a) copy, modify, merge or transfer copies of the Software Application/ Purchased Services; (b) reverse assemble, reverse engineer, reverse compile or otherwise disassemble the Software Application; or (c) sublicense, rent, lease, assign or disclose the Software Application or any copy thereof, or any application with respect thereto, to any third party (including any affiliate of Licensee). Licensee acknowledges that Licensor has expended a significant amount of time and resources on the development, maintenance and updating of the Software Application, and Licensee specifically acknowledges and agrees, on behalf of itself and its affiliates, that they are not developing and will not during the term of this Agreement and for a period of five (5) years thereafter (the "Five Year Non-Development Period"), develop, or assist any third party in developing, a similar or competing product for commercial, internal or other use based upon the Software Application or any information contained therein. This paragraph shall survive any termination of this Agreement, provided that the Five Year Non-Development Period shall not apply in the event Licensor terminates this Agreement without cause or Licensee terminates this Agreement with cause in accordance with paragraph 12(a) hereof. Notwithstanding anything to the contrary contained herein, each party's confidentiality obligations set forth in paragraph 13 hereof shall survive both the termination of this Agreement and the expiration of the Five Year Non-Development Period regardless of whether this Agreement is terminated with or without cause by either party hereto.
  11. EMPLOYEES OF OTHER PARTY. During the current or any renewal term of this Agreement, the parties agree not to solicit the services of the other's employees without the prior written consent of the other.
  12. LIMITATION OF LIABILITY. Notwithstanding any provision to the contrary contained in this Agreement, except for its indemnification obligations for acts of negligence or willful misconduct, (i) Licensor's liability relating to or arising from a dispute or claim related to this Agreement (whether such liability, dispute or claim has arisen from a breach of contract or warranty, negligence or otherwise) shall not exceed the aggregate amount of payments previously paid by Licensee to Licensor pursuant to this Agreement during the twelve (12) month period preceding the date such claim is made, and (ii) Licensor shall not be liable for any special, incidental, consequential, indirect or other similar damages relating to or arising from a dispute or claim hereunder, including but not limited to lost profits, lost savings, or loss of use, even if Licensor has been advised of the possibility of such damages.
  13. TERMINATION. (a) In addition to the other rights of termination set forth in this Agreement, this Agreement may be terminated as follows: (i) either party may terminate this Agreement for any reason by providing the other party with written notice of its desire to terminate at least thirty (30) days prior to the expiration of the current or any renewal term of this Agreement, or (ii) either party may terminate this Agreement by giving the other party 30 days prior written notice upon the bankruptcy or insolvency of the other party subject to subparagraph 13(d) below, or (iii) either party may terminate this Agreement upon the breach of any material obligation, provision, representation, or warranty by the other party contained in this Agreement if the breach is not cured within 10 days after written notice thereof to the party in default, provided that Licensor may immediately terminate this Agreement in the event (i) of a payment default by Licensee which is not cured within 5 days written notice thereof to Licensee or (ii) Licensee fails to comply with the terms of either paragraph(s) 8, 9, 10, or 13 hereof, further provided that Licensee may terminate this agreement if Licensor fails to comply with paragraphs 10 or 13 hereof. (b) Upon the termination of this Agreement, (i) Licensee must immediately cease using the Purchased Services and any downloaded documents, images, or other proprietary data obtained via the KontactIntelligence Application and (ii) each party must return to the other party all confidential information received from the other party in a suitable electronic format. (c) Upon request or from time to time, up to two (2) times per year at no charge, and at termination if requested, Licensor shall provide to Licensee a copy of its data in a standard Microsoft Access MDB format to Licensee. (d) At the request of the Licensee, client, opportunity, candidate, and staff data will be provided Licensee in a suitable electronic format (e) Expiration or termination of this Agreement for any reason shall not relieve either party of its obligations incurred prior to such expiration or termination, and shall be without prejudice to any of the rights or remedies of either party available at law or in equity.
  14. CONFIDENTIALITY. (a) The parties acknowledge that prior to or during the current or any renewal term of this Agreement, they may exchange confidential information pertaining to their respective businesses or products in order to perform hereunder (including but not limited to information related to the Purchased Services of Licensor and information related to clients and customers of either party). For purposes of this Agreement, all of such information shall be considered "Confidential Information," provided however, that such information shall not be deemed "confidential" if it is: (i) known to the recipient as evidenced by its written records before receipt of such information from the disclosing party; (ii) is disclosed in good faith to the recipient by a third party lawfully in possession of such information and not under an obligation of nondisclosure; (iii) is or becomes part of the public domain through no fault of the recipient; or (iv) is developed by the recipient independently of any confidential information provided by the other party. (b) Because of the value of Confidential Information to each party, and the serious damage which revelation of such Confidential Information could cause, the parties hereby agree that: neither party (nor their respective affiliates) shall reveal or allow to be revealed or disclosed any aspect of the other party's Confidential Information to any third party, nor shall either party (nor their respective affiliates) use or allow to be used any aspect of the other party's Confidential Information, except: (i) as otherwise provided in this Agreement, or (ii) as may be expressly authorized by the other party in writing, or (iii) as may be required by law. (c) Each party shall exercise due care in protecting the other party's Confidential Information while in the possession of such party, and shall take appropriate actions by instruction or agreement with its employees to satisfy its respective confidentiality obligations contained herein. (d) Either party shall have the right to obtain a temporary, preliminary or permanent injunction, or other injunctive or equitable relief to enforce its confidentiality rights as set forth herein. The provisions of this paragraph 13 shall survive termination of this Agreement for any reason.
  15. FORCE MAJEURE. If either party shall be delayed in its performance of any obligation or be prevented from performing any such obligation due to causes or events beyond its control, including without limitation any Act of God, fire, strike or other labor problem, legal sanction, present or future law, government order, rule or regulation, such delay or nonperformance shall be excused and the time for performance shall be extended to include the period of such delay or nonperformance.
  16. NOTICES. All notices, requests or other communication required shall be in writing and shall be deemed to have been duly given if delivered personally (on the date delivered), or mailed by United States first-class certified mail, return receipt requested, at the addresses indicated below (three business days after the date posted). Notwithstanding the foregoing, notice of a defect or malfunction as described in paragraph 7(b) above may be provided by the Licensee to Licensor by telephone or facsimile (and shall be effective on the date such notice is so provided if provided to Licensor prior to 1:00 p.m. CST on such business day) with a confirmation of such notice provided thereafter in writing pursuant to this paragraph 15. Email will be a suitable method for delivery of notices, requests, or other communication, in addition to the methods outlined in the agreement.
  17. ASSIGNMENT/BINDING EFFECT. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. This Agreement shall be binding upon the parties and their successors and permitted assigns. If any provision of this Agreement is found or declared by a court of competent jurisdiction to be unenforceable for any reason, such declaration of finding shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect.
  18. ENTIRE AGREEMENT. Licensee and Licensor acknowledge that they have read this entire Agreement, and that this Agreement and its exhibits constitutes the entire understanding and contract between the parties and supersedes any and all prior or contemporaneous oral and written communications. The agreement also includes the specifications outlined and agreed upon in any attached Addendums.
  19. MISCELLANEOUS. This Agreement shall not be modified, amended or in any way altered except by any instrument in writing signed by both parties. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of Florida, without regard to the conflicts of laws provisions thereof. Should either party hereto institute any action or proceeding to enforce any provision of this Agreement or for any damages by reason of default under any representation, warranty or covenant set forth in this Agreement, or for a declaration of such party's rights or obligations under this Agreement or for any other judicial remedy, the party to whose favor final judgment shall be entered shall be entitled to receive from the losing party such amount as the court may judge to be reasonable attorneys' fees for services rendered to the prevailing party.
  20. BOOKS AND RECORDS. If required by applicable law, the parties agree that until the expiration of four years after the furnishing of services under this Agreement, Licensor will make available to the Secretary of the United States Department of Health and Human Services and the United States Comptroller General and their duly authorized representatives, this Agreement and all books, documents and records necessary to certify the nature and intent of the costs of the goods and services provided under this Agreement. No attorney-client, accountant-client or other legal provision shall be deemed to have been waived by the parties by virtue of this provision.
  21. EMAIL/CV PARSING. Unsolicited bulk e-mail is the electronic equivalent of bulk postal mail. You are responsible for the professional and ethical use of the bulk email feature of the application and agree to adhere to professional work practices. Exhibit C provides a guideline for the appropriate used of this feature. Your responsibilities include but are not limited to the following:
    1. Any recipient requesting to "opt out" or requests to be removed from Licensee mailing list, will be honored.
    2. No sexually explicit material or material with any sexual connotation is to be used.
    3. Content should be compliant with all federal, state, and local regulatory policies.
    If misuse of the KontactIntelligence bulk email functionality occurs, We may be required by Our hosting company to disable the use of this feature.

EXHIBIT A

Product Feature Overview

The KontactIntelligence Purchased Services includes Main Application Modules and other key features listed in the KiSoftware Suite. Due to the depth and width of what Ki is designed to help clients get done in their daily work and the dynamic nature of building functionality in a quick and agile environment, the list of features and functions change frequently and cannot be fully detailed in a single document.

Analytic Software Application

The Analytic Software Application is designed to populate miscellaneous data fields and other forms by "linking" information from the KontactIntelligence.com database onto each specific data field or form. Due to the specific nature of each data field or form, not every question can be automatically answered by the Software Application. Client, opportunity, and candidate information is gathered in several screens and entered into the database. The Purchased Services also allows manual input of information onto the various screens, data fields, or forms for any information that does not automatically "link." The Purchased Services also includes the ability to add attachments to screens, generate reports, and track workflow.

System Architecture

  • The Purchased Services, which consists of an Oracle database, utilities modules, and a graphical user interface.

Licensee is responsible for internet connectivity with the file server/personal computer.

Ki Key Features
KiSystem KiEnterprise KiLite KiUltraLite KiRetention KiOnBoarding
New Releases * * * * * *
Ki Assist * * * * * *
Customization * * Limited Limited * *
Classroom Module * * Fee Fee
Recruitment QuickStart * * Fee Fee
Toolkit Area * * Fee Fee * *
Kontact Module * * * * * *
App'ts, tasks & Calendar * * * * * *
Ki Network * * * * * *
Mailing Lists * * * * *
Letter Generator * * * *
Expenses * * Fee *
Reports * * Limited Limited Limited Limited
Budgets * Fee
Client Management * * * * * *
Contract Management * *
Opportunity Management * * * Limited
Job Postings Online * * * *
Hospital Profiles * * * * *
Community Profiles * * *
Image Galleries * * *
Candidate Management * * * Limited
CV Parsing Module * * * *
Medical Staff Management * * * *
Mentoring Program * * * *
Find A Doctor * * * *
Managing Health Plans * *
Ki ProviderPortal * Fee Fee Fee
Action Plans * * *
Retention, Bus Intelligence * Fee *
ASPR Benchmarking * * * * *


EXHIBIT B

KontactIntelligence System Requirements

Minimum Requirements KontactIntelligence.com Recommendation
CPU 1 GHz 1.5 GHz +
Memory 512 MB 1 GB +
Resolution 800 pixels wide 1024 pixels wide
Connectivity 56K modem XDSL, Cable Modem or other high speed connection
Database Software Oracle (Provided by KontactIntelligence.com) No Installation Required Oracle (Provided by KontactIntelligence.com) No Installation Required
Other Software Microsoft Internet Explorer 6.0+, Adobe Acrobat Reader, Microsoft Word Reader, Microsoft Excel Reader, Safari, Chrome, Firefox 3 + Microsoft Internet Explorer 7, Microsoft Office Suite, Adobe Acrobat Reader, Safari, Chrome, Firefox 3 +
Operating System [OS Independent] Windows XP, Windows Vista, Windows 7, Mac OS (Windows XP must be on SP3 to be supported) [OS Independent] Windows XP, Windows Vista, Windows 7, Mac OS (Windows XP must be on SP3 to be supported)

Approximate Space Requirements (In addition to above software)

  • None

*The hardware, software, and other materials required are to be provided by Licensee at its own cost and expense and must be installed and in working order prior to Software Application Utilization.


EXHIBIT C

Bulk email Guidelines

Unsolicited bulk e-mail - or junk e-mail - is the electronic equivalent of bulk or mass postal mail and is considered by many to be annoying and wasteful. However, it can be an effective way of communicating a specific message to a targeted group. Please follow some basic guidelines and adhere to common sense when utilizing the powerful email capabilities within Ki as follows:

  • Do try to target specific messages to specific lists and not send every email out to everyone on every list.
  • Do include text at the bottom of the email with instructions how a recipient can be removed from a mailing list whether it was unsolicited or not [see sample below].
  • Do include your corporate contact information, including name, title, company, mailing address, phone and email address.
  • Do include a confidentiality or legal disclaimer at the bottom of the email in case it is misdirected and is read by someone other than the intended recipient

Here are some suggested text samples you can copy and paste into bulk emails:

  • "If you choose not to receive future emails from this sender, please reply to this email with your request to be removed from this mailing list."
  • "The information in this email and attachment(s) is legally privileged and confidential information intended only for the use of the addressee listed on this email. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this email and attachment(s) is strictly prohibited. If you have received this email in error, please immediately notify us by telephone at the number listed above and reply to this email that it was sent in error. Thank you."