Q.1: Definitions Library 1
Definitions Library
7 x 24 x 365
Acceptance
Acceptance Criteria
Adaptation
Affiliate(s)
Agreement
Application Program Interface
ApplicationsSoftware or Applications
Approve or Approval
Approved Subcontractors
Arising
ASP Services
Attorneys’ Fees
Authorized Use
Authorized User
Best Efforts
Best Practices
Business Day
Certification
Change of Control
Claims
Client Data
Commercially Reasonable Efforts
Concurrent Devices/Concurrent Accesses
Concurrent Users
Confidential Information
Content
Control
Coordinate
Core
Corporate License
CPI
CPI Adjustment
CPU
CPU License
Critical Defect
Custom Programming
Custom Programming Materials
Customer Data
Data Center
Data Network
Data Privacy Laws
Data Protection and Privacy Laws
Data Security Breach
Defect
Defect Analysis
Derivative Work
Designated Third Party Proprietary Materials
Disabling Code
Documentation
ECI
Effective Date
Electronic Data Interchanges or EDI
Embedded Third Party Software
Enhancements
Excluded Downtime
Facility Management
Fix
Fixed Price Basis
Final Resolution
Full-Time
GAAP
Global
Go Live
Hosted Customer
Hosted Services
Hours Worked
Incident
Including
Indemnified Parties
Identified User
Information Technology Support and Maintenance Services
Integrated Product
Intellectual Property Rights
Interface(s)
Interim Resolution
Internal Purposes
Interoperate or Interoperability
Know How
Knowledge
Law or Laws
Licensed
Licensed Capacity
Losses
Low Defect
Maintenance or Maintain
Major Release
Managed Device
Managed Service Provider
Material Breach
Material Defect
Medium Defect
Minor Release
MIPS Capacity
Named User
Named User or Developer
Net Sales
Network
New Features
Node
Non-Permissive Open Source Code
Non-production Use
Object Code
Offshore
Offshore Damages
Other Damages
Out-of-Pocket Expenses
Outsourcing
PCI Standards
Performance Standards
Permissive Open Source Code
Permitted Auditors
Personal Data
Personal Information
Personally Identifiable Information
Physical Node
Previous Sequential Release
Privacy Laws
Privacy Rules
PrivilegedInformation
ProceduresManual
Process/Processing/Processed
Processed Data
Processing
Processor
Production Use
Productive Use
Professional Named User
Programmer
Project Acceptance
Proprietary Materials
QualityAssurance
Query User
ReasonableEfforts
Records
Regulatory Requirements
Related Documentation
Release
Required Consents
Residuals
Revenue
Root Cause Analysis
Sarbanes-Oxley Requirements
Server
Services
Site License
Software
Software Product Factory
Source Code
SourceCodeSpecifications
SourceMaterials
Specifications
Standard Operating Environment
Statement of Work
Suspended Software License
Suspension
System
Systems Software
Technical and Organizational Security Measures
Termination Assistance Period
Third Parties
Third Party
Third Party Elements
Third Party Software
Time and Materials Basis
Toolkit
Tools
Trademark
Trainees
Unavailability
Underlying Works
Update(s)
Upgrades
Use
User
User Limit
Vendor
Vendor Underlying Works
Version
Virtual Machine
WAN
Workaround
Work Product
Written Deliverables
“7 x 24 x 365” shall mean 24 hours, 7 days per week, and 365 days per year, including Vendor holidays.
“Acceptance” shall mean the date on which Vendor issues a certificate of completion pursuant to Section ____ (“Certification of Completion”) hereof.
“Acceptance Criteria” shall mean the specifications set forth in the applicable Statement of Work. If relevant objective specifications are not included in the Statement of Work, acceptance shall be based upon the parties’ reasonable determination that the Deliverables are satisfactory in all material respects.
“Adaptation” shall mean a non-programming alteration of Licensed Software, capable of being modified utilizing software tools provided with the Licensed Software by a Third Party Vendor or Vendor and other user controlled features (e.g., the creation, deletion, and alteration of screens, pathways, reports, profiles, documents, and data dictionary elements).
“Affiliate” of Licensor and Licensee means Licensor, Licensee and any incorporated or non-incorporated entity, including partnerships and joint ventures in which Licensor or Licensee, directly or indirectly, has at least a twenty five percent (25%) interest in equity, production sharing arrangement or the equivalent.
Alternatively:
“Affiliate(s)” means any person, firm, corporation (including, without limitation, service corporation and professional corporation), partnership (including, without limitation, general partnership, limited partnership, and limited liability partnership), limited liability company, joint venture, business trust, association, or other entity that now or in the future, directly or indirectly: (a) controls, is controlled with or by or is under common control with a party; or (b) with respect to Customer, is
acquired, managed, operated governed, or supervised by Customer, whether by membership, stock ownership, joint operating agreement or other substantial relationship, including without limitation, any physician-hospital organizations, medical service organizations, and independent practice organizations in which Customer or any Affiliate of Customer has a membership or stock interest. For purposes of the foregoing, “control” shall mean the direct or indirect control of fifty percent (50%) or more of the voting power to elect directors thereof, or for any other entity, the power to direct the management of such entity.
*This definition benefits the customer through the use of nebulous wording including “managed,” “governed,” and “supervised,” making it difficult for the vendor to limit use of the software. Further, the definition also includes entities that may be acquired in the future. See Chapter 12.A for a definition that protects the licensor’s interests by definitively listing the licensee’s Affiliates.
Alternatively:
“Affiliate(s)” means all entities which control, are controlled by or are under common control of the named party, whether directly or through one (1) or more intermediaries, with “control” and “controlled” defined as ownership of more than fifty percent (50%) of the voting capital stock or other interest having voting rights with respect to the election of the board of directors or similar governing authority.
Potential Additional Language
Should Licensee divest a Licensee Affiliate or should a Licensee Affiliate cease to satisfy this definition, all existing Statements of Work with such divested Licensee Affiliate shall remain in effect; however, the divested Licensee Affiliate will no longer be authorized to initiate new Statements of Work under this Agreement.
“Agreement” means this Services Agreement by and between Customer and Vendor, inclusive of all Schedules, Exhibits, Attachments, Addenda, and other documents incorporated herein by reference.
“Application Program Interface” or “API” means an application program interface used to make a resources request from a remote implementer program. An API may include coding, specifications for routines, data structures, object classes, and protocols used to communicate between programs.
“Applications Software” or “Applications” shall mean those programs and programming (including the supporting documentation, media, on-line help facilities, and
tutorials) that perform specific user related data processing and telecommunications tasks in connection with the Services. Applications Software includes compilers, database managers, and development tools. Applications Software in use as of the Effective Date is identified in Schedule __, as amended and updated in accordance with the process set forth in the Procedures Manual by the Parties as necessary to reflect evolution of and changes in the Services.
“Approve” or “Approval” shall mean (1) the written authorization by Customer’s Chief Information Officer (or his or her designee) or the Customer Applications Partnership Executive (or his or her designee) for any consent, authorization, amendment, and/or other approval required from Customer under this Agreement, and (2) with respect to any consent, authorization, amendment, and/or approval requiring the authorization of payment, or imposing an obligation on Customer for any fees, costs, or other expenses, the written authorization of the applicable Customer Applications Partnership Executive.
“Approved Subcontractors” shall mean those subcontractors of Vendor approved by Customer prior to the Effective Date and identified in Schedule __ or whose approval is not required under the provisions of Section _____, and any other subcontractor(s) approved by Customer in accordance with Section ____, unless and until approval of such subcontractor is rescinded by Customer in accordance with Section ____.
“Arising” References to matters “arising” (or which “arise” or “arises”) “out of this Contract” include matters which arise in connection with this Contract or have a causal connection with or which flow from this Contract or which would not have arisen or occurred but for the entering into this Contract or the performance of or failure to perform obligations under this Contract.
“ASP Services” means application services that are provided by Partner who allow End Users to remotely access the Software used in combination with Partner Products installed on hardware owned or controlled and in any event operated by Partner via a private network or the Internet. ASP Services may include providing administration, installation, redundancy, back-up and technical support services as they apply to the deployment and management of the Software.
“Attorneys’ Fees” shall mean the reasonable fees and expenses of counsel to the parties hereto and fees billed for law clerks, paralegals, librarians and others not admitted to the bar but performing services under the supervision of an attorney. The term “Attorneys’ Fees” shall include, without limitation, all such fees and expenses incurred with respect to appeals, mediations, arbitrations and bankruptcy proceeding.
″Authorized Use″ means the specified level at which Licensee is authorized to execute or run theProgram. That level may be measured by number of users, millions of service units (″MSUs″),Processor Value Units (″PVUs″), or other level of use specified by Licensor.
“Authorized User” means: (a) Company and its employees and authorized agents; (b) Company’s Affiliates and its employees and authorized agents; (c) third party consultants and other independent contractors performing services for Company; (d) any governmental bodies lawfully requesting or requiring access to the Applications; and (e) any Company-authorized facility managers or service bureaus, provided such use shall be solely for the benefit and use of Company.
Alternatively:
“Authorized User” means, with respect to any Software identified in a Statement of Work (i) any employee or representative of Customer [and its affiliates]; (ii) any physician with patient admitting privileges at a Facility for which the Software is
licensed; (iii) any employee or representative of such physician; and (iv) any medical professional who is authorized to perform services for Customer, its affiliates, or at a Facility.
Alternatively:
“Authorized User” means: (a) Customer and its Affiliates; (b) employees, consultants, authorized agents, students (medical, nursing, and other students), volunteers, nurses, physicians; medical staff members, and all technicians and other personnel or agents
on staff or otherwise associated with Customer or its Affiliates; (c) nurses, technicians, and other clinicians associated with such physicians and assistants of staff physicians, and agents of Customer and its Affiliates; (d) Third Party consultants, auditors, and other independent contractors performing services for Customer or any Customer Affiliate; (e) any governmental, accrediting or regulatory bodies lawfully requesting or requiring access to any of Customer’s data; and (f) such other parties as Customer and Vendor may mutually agree.
*These definitions benefit the customer as they allow the customer’s third party consultants to access/use the vendor’s proprietary software, creating a risk of misappropriation and potentially limiting the vendor’s income from consulting and maintenance services.
“Bankruptcy Code” means the U.S. Bankruptcy Code, as amended.
“Best Efforts” means that the obligated party is required to make a diligent and good faith effort to accomplish the applicable objective. Some obligation, however, does not require a material expenditure of funds or the incurrence of a material liability on the part of the obligated party, nor does it require that the obligated party act in a manner that would be contrary to normal commercial practices in order to accomplish the objective. The failure to accomplish a given objective is no indication and shall not be admitted as evidence in any proceeding to establish that the obligated party did not in fact utilize its Best Efforts in attempting to accomplish the objective.
“Best Practices” shall mean (whether or not capitalized) established procedures or processes developed or used by Vendor, utilizing its accumulated knowledge as a world class technology service provider, to deliver Services in a high quality, effective, and efficient manner.
“Business Day” means any weekday other than a day designated as a holiday under the then applicable Customer holiday schedule. Any reference herein to “day” that is not specifically referenced as “Business Day” means calendar day.
“Certification” shall occur for each Service, Licensed Product, and Custom Program when Customer notifies Vendor in writing that the applicable testing has been completed successfully for such Service, Licensed Product, or Custom Program and that all Deliverables related to such Service, Licensed Product, or Custom Program have been provided to Customer.
“Change of Control” means: (a) any transaction or combination of transactions as a result of which either a person, an entity, or a group of persons and/or entities that customarily has acted in concert and that presently is in control of Vendor ceases to be in control of Vendor; or (b) the sale, exchange, or other disposition (including disposition in full or partial dissolution) of the stock of Vendor or the assets of Vendor that constitute a substantial or material business segment of Vendor; or (c) the divestiture, in whole or in part, of the business unit or division of Vendor that has provided the Services, the Software, and/or Deliverables to Customer. A Change of Control shall not include any public stock offering.
Alternatively:
“Change of Control” means each of (a) the sale of all or substantially all of the stock or assets of Licensee (or its ultimate parent company) other than any distribution of Licensee’s stock (or similar transaction) to the shareholders of Licensee’s ultimate parent company, (b) any merger, reorganization, combination, consolidation or amalgamation of Licensee (or its ultimate parent company) with any other entity, and (c) the acquisition, directly or indirectly, by any person or entity, or by any group of persons or entities acting together, the power to direct or cause the direction of the management and policies of Licensee (or its ultimate parent company), whether through the ownership of voting securities, by contract or otherwise, including, without limitation, the direct or indirect acquisition of 50% or more of the outstanding equity interests in Licensee (or its ultimate parent company).
“Claims” For avoidance of doubt, the Parties agree that the term “Claims” includes without limitation: (i) any claims against any Indemnitee alleging that as a result of any action and/or failure to act by Licensor or any of Licensor’s officers, employees or agents, there has been a violation of any rule, regulation, order, statute or ordinance of any governmental authority having jurisdiction; and (ii) any civil penalties, fines, assessments or damages arising from, out of, or related to any such violations.
Alternatively:
“Claims” means any actual or threatened losses, liability, claims, damages, penalties, costs, fees, fines, levies, assessments or expenses (including without limitation reasonable attorneys’ fees and costs) arising from or incurred in connection with any investigations, litigation, settlement, judgment, interest and other penalties.
“Client Data” means the client information which is the subject of the Services; that which is stored in, processed through, or manipulated by Vendor’s day-to-day performance of the Services.
“Commercially Reasonable Efforts” means taking such steps and performing in such a manner as a well managed business would undertake where such business was
acting in a determined, prudent, and reasonable manner to achieve a particular desired result for its own benefit.
Alternatively:
“Commercially Reasonable Efforts” means spending $______in a single instance
or $______in the aggregate for all costs (including without limitation reasonable attorney’s, engineers, scientists, consultants and accountants fees and expenses) associated with a specific action or all actions, respectively, which are required to be taken under this Agreement.
“Concurrent Devices/Concurrent Accesses” means the maximum number of input devices accessing the Programs at any given point in time. If multiplexing software or hardware (e.g., a TP monitor) is used, this number must be measured at the multiplexing front end.
“Concurrent Users” means users who will access the system infrequently and/or from a remote location.
Alternatively:
“Concurrent Users” means all users (including without limitation collaboration and purchasing seats) simultaneously accessing the Licensed Software on a common deployed architecture. The count of the concurrent users shall be the high water mark of the Concurrent Users at any time.
or:
“Concurrent User” means a specific, identifiable, unique input/output device capable of directly or indirectly accessing and using a Program such as, without limitation, a terminable, personal computer, single user workstation, wireless device or real time device.
“Confidential Information” means any material, data, or information in whatever form or media of a party to this Agreement that is provided or disclosed to the other, except for any information that is: (a) publicly available or later becomes available other than through a breach of this Agreement; (b) known to the Receiving Party or its employees, agents, or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents, or representatives subsequent to such disclosure; or (c) subsequently lawfully obtained by the Receiving Party or its employees, agents, or representatives from a Third Party without obligations of confidentiality. Confidential Information shall include the following categories of information whether disclosed orally or not marked as confidential: Written Deliverables, network configurations, network architecture, Services rendered by Vendor to Customer, financial and operational information, and other matters relating to the operation of the parties’ business, including information relating to actual or potential customers and customer lists, customer usage or requirements, business and
customer usage forecasts and projections, accounting, finance or tax information, pricing information, and any information relating to the corporate and/or operational structure of Customer and its Affiliates, Software, Equipment, Deliverables or Services rendered under the Agreement and any amendments thereto, any information exchanged between the parties pursuant to the Nondisclosure Agreement, and all information and materials relating to Third Party vendors, systems integrators, or consultants of Customer that have provided or that may provide in the future any part of Customer’s information or communications infrastructure to Customer.