Trilogy has prepared a text entitled "The Trilogy Claims Administrative Handbook" together with all updates or revisions. The Trilogy Claims Administrative Handbook will be supplied by Trilogy to Licensee in PDF format, and shall be referred to herein as the "Handbook." Future updates and revisions may be made available on Trilogy's Website or by PDF. Licensee wishes to acquire and use the Handbook for its claims administration program.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and intending to be legally bound hereby, Trilogy and Licensee hereby agree as follows:
1. GRANT OF LIMITED LICENSE. Upon payment to Trilogy of the license fee, Trilogy will deliver the Handbook to Licensee and Licensee will have a nonexclusive and nontransferable license to use the Handbook and the information contained therein in accordance with this Agreement solely for the purpose of administering its own internal healthcare claims processing programs. Licensee may reproduce the Handbook, in whole or in part solely for appropriate internal use in the administration of Licensee's claim programs. Licensee may not copy any portion of the Handbook, in any of its forms, for any other purpose. All rights with respect to the Handbook not expressly granted to Licensee are reserved to Trilogy.
2. USE AND DISCLOSURE. Licensee acknowledges that the Handbook, together with the trade secrets and other proprietary information of Trilogy contained therein (collectively, the "Trilogy Confidential Information") are valuable proprietary property of Trilogy. Licensee agrees to use, copy and disclose the Trilogy Confidential Information only as explicitly permitted under this Agreement. Licensee agrees (I) not to rent, lease, lend, sublicense, or otherwise transfer all or any part of the Confidential Information to any third party; (ii) not to disclose Trilogy Confidential Information to any other party other than those of its employees who have a need for such access in order for Licensee to use Trilogy Confidential Information as permitted by this Agreement, and (iii) to ensure that any employee receiving such access protects Trilogy Confidential Information to at least the same extent as required of Licensee under this Agreement. Licensee agrees not to remove or alter any copyright notices or other proprietary legends appearing in the Handbook.
3. OWNERSHIP. All applicable rights to patents, copyrights, trademarks and trade secrets in the Handbook and all other Trilogy Confidential Information and all updates, enhancements, or other modifications thereto are and will remain the sole and exclusive property of Trilogy and will be subject to all of the use and nondisclosure restrictions of this Agreement which apply to the Handbook and the other Trilogy Confidential Information.
4. UPDATES. Trilogy may (but shall not be required to) offer updates to all or part of the Handbook from time to time at such prices as Trilogy may in its sole discretion deem appropriate. Such updates will be sent via a link that allows the PDF file to be viewed or downloaded from Trilogy's secured Website. This Agreement does not bind Licensee, in any way, to continue with purchase of the updates. However, any updates purchased by Licensee shall be considered incorporated into the Handbook and covered as information contained in the Handbook under this Agreement. Such updates may include ideas, concepts, or processes learned by Trilogy in the course of discussions with Licensee, and Licensee hereby consents to the use by Trilogy of such ideas, concepts or processes and their inclusion in such updates without payment of royalties or other compensation by Trilogy.
5. WARRANTIES. Trilogy has collected the information contained in the Handbook from sources which it believes to be accurate. Except for the warranty set forth in the immediately preceding sentence, Trilogy makes no other representation or warranty, express or implied, regarding the Handbook, any forms contained therein, any other Trilogy confidential information, or any other materials, products or services provided under this agreement, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, which are hereby disclaimed.
6. LIMITATION OF LIABILITY. Trilogy's maximum liability with respect to the transactions contemplated by this Agreement, regardless of the form of action, shall be limited to the charges actually paid by Licensee for the Handbook. In no event will Trilogy be liable for (I) lost profits, loss of use, or for incidental, special, or consequential damages or for other damages, even if advised of the possibility of such damages, (ii) any claim against Licensee by any third party arising from or relating to use of the Handbook or information contained therein, or (iii) any claim resulting from modification of the Handbook by a party other than Trilogy or from use of the Handbook or information contained therein in violation of this Agreement. No action, regardless of form, arising out of the transactions under this Agreement may be brought by Licensee more than one year after the cause of action has arisen.
7. TERM, DEFAULT AND TERMINATION. This Agreement and the license granted hereunder shall remain in effect until terminated as provided herein. If Licensee breaches this Agreement by failing to fulfill any of its obligations hereunder, Trilogy may at any time, and in addition to any other remedies that Trilogy may have, terminate this Agreement and the rights granted to Licensee hereunder. Such termination will become effective immediately upon written notice from Trilogy to Licensee of any such breach, unless within the period (if any) stated in such notice all breaches have been remedied to Trilogy's satisfaction. Upon termination of this Agreement for any reason, Licensee shall, within 30 days, return to Trilogy the Handbook, Handbook updates, including materials received from Trilogy’s Internet Website, and all copies of the materials produced from the Handbook and Handbook updates. The obligations and restrictions set forth in this Agreement regarding use, disclosure, copying, and ownership of the Handbook and other Trilogy Confidential Information and obligations of indemnification by Licensee will survive termination of this Agreement.
8. LICENSEE RESPONSIBILITY INDEMNIFICATION. The Handbook contains information which Trilogy believes to be accurate as of the date of its release to Licensee. Licensee is solely responsible for its use of the Handbook, the information contained therein, the accuracy and adequacy of information and data furnished for processing, and any decisions and/or analyses in which any information or forms from the Handbook may be used or relied upon, and any reliance by Licensee upon any information or forms from the Handbook will not diminish that responsibility. Accordingly, Licensee agrees to hold Trilogy, its partners, principals and employees harmless from, and indemnify each of them against, all claims, expenses, losses or liabilities (including legal fees) in connection with any claim by any third party. Licensee acknowledges that the Handbook is licensed with the understanding that Trilogy is not, by virtue of such license, engaging in the rendering of legal or medical advice or other professional service and that if such advice or professional service or other expert assistance is required, the services of a competent professional person in the appropriate discipline should be sought by Licensee. Performance by Trilogy of any non-monetary obligation hereunder shall be excused if such failure to perform is caused by an event or circumstances beyond Trilogy’s control, provided that Trilogy shall meet its obligations hereunder within a reasonable time after the cause of the failure has been removed.
9. GENERAL. Any notice under this Agreement will be given in writing and sent by certified mail, return receipt requested, postage prepaid, to the address noted in this Agreement or to such other address as either party may provide to the other in writing. This Agreement, constitutes the entire understanding and agreement between Trilogy and Licensee regarding the Software, Documentation, and any services provided pursuant to this Agreement. Any prior purchase order, communication, agreement, advertisement or representation is hereby superseded. If any provision of this Agreement is finally held to contravene applicable law, such provision will be deemed deleted, but will not affect any other provision's validity. The parties expressly agree that every remedy, limitation of liability, disclaimer of warranties or exclusion of damages is intended to be severable and independent of any other such provision and to be enforced as such, and will remain in effect even if any other remedy, limitation of liability, disclaimer of warranties or exclusion of damages is held to have failed of its essential purpose. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. Trilogy will perform all of its obligations under this Agreement as an independent contractor and not an agent, employee, partner, or joint venturer of or with Licensee. This Agreement may only be modified by a written amendment signed by authorized representatives of both parties. Licensee is responsible for all taxes and duties based upon amounts payable pursuant to this Agreement or resulting from the use or possession of the Handbook or otherwise arising from the subject matter of this Agreement (other than taxes which are based solely upon Trilogy's net income). Licensee will bear the risk of loss of, and damage to, the Handbook from all causes whatsoever upon receipt of shipment or transmission by Trilogy. Trilogy and Licensee represent and warrant that they have not used the services of any broker or finder in connection with this License. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument; however, this Agreement will be of no force or effect until executed by both parties. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois. Each party has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement.