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CtdMAP™ Risk Evaluation System© Company (Customer) License Agreement
This CtdMAP Risk Evaluation System License Agreement (hereinafter referred to as “Agreement”) is made this the first day the customer enters data into the CtdMAP system by and between Map Managers, Inc., a Kansas corporation having an address of 625 N. Carriage Parkway Suite 125, Wichita, KS 67208-4510, (hereinafter referred to as “MAP”) and the company as has enter data into the CtdMAP system, a corporation having an address as listed in the CtdMAP system, (hereinafter referred to as “Customer”).
WHEREAS, MAP has developed and is the owner of the CtdMAP™Risk Evaluation System© and all documents, data and information related thereto, and retains all copyright, trademark, and trade secrets ownership rights (hereinafter collectively referred to as “CtdMAP System”);
WHEREAS Customer desires to obtain a license to use the CtdMAP System and to obtain certain services from MAP relating to the CtdMAP System; and
WHEREAS MAP is willing to grant a license to Customer for the CtdMAP System and to provide the aforementioned services to Customer.
NOW, THEREFORE, in consideration of the mutual warranties, covenants, and obligations set forth below, the parties agree as follows:
1. LICENSE GRANT. Subject to the terms and conditions of this Agreement, MAP grants Customer a nonexclusive license to use the CtdMAP System (risk profiling services) and the appropriate documents, materials, formats, concepts, processes and summary data related thereto that are required to administer the CtdMAP System, but does not include the scoring algorithms. In connection with this license, MAP agrees to provide Customer certain documents including questionnaires, company reporting forms, educational guides, and other literature, documents, and forms relating to the CtdMAP System. Customer may use the documents supplied by MAP to perform services for Customer, including testing employees of these Customers for detecting possible potential health concerns commonly described as musculoskeletal disorders (MSDs). Customer is defined as a company or employer that elects to use the CtdMAP System.
Property Rights. With respect to the Services provided by MAP pursuant to this Agreement, the tangible Services are only sold to Customer and not any underlying intellectual property rights. Customer agrees that: (i) MAP owns and shall retain all right, title, and interest in the product lines that include the Services, all information and data collected by Customer in the performance of the Services (including, without limitation, data collected through Customer questionnaires and (ii) MAP and its licensors retain all right, title and interest in and to the patents, trademarks, trade names, inventions, copyrights, know-how, trade secrets and all other intellectual and industrial property rights related to the design, manufacture, operation or service of the Services. The use by Customer of any of these property rights is authorized only for the purposes herein set forth, and upon termination of this Agreement for any reason such authorization shall cease. Customer is required to destroy any data received from MAP upon termination
Risk profiling services shall be defined as Customer questionnaires that provide individual risk by survey, measure, or nerve and job risk by job risk, ergo risk, or essential job functions. Services include providing MAP’s MSD risk profiling questionnaires to Customers, either on paper forms provided by MAP or electronically (through the MAP website or otherwise). MAP shall provide a summary report to Customer. Customer is responsible for sharing the information with the appropriate individuals. All information and data relating to the CtdMAP System as well as the test summaries are the sole and exclusive property of MAP. However, Customer shall have the right to use the summary data in the course of providing services.
The use any of these property rights is authorized only for the purposes herein set forth and upon termination of this Agreement for any reason such authorization shall cease.
2. PAYMENT. Customer shall pay MAP for services according to the following schedule:
(a) dollar amount per billable unit to be paid in advance. A billable unit shall be defined as each score for an individual risk, by survey or measurement or nerve and each score for job risk by job risk or ergo risk or essential job functions.
(b) Consulting at set fee per hour in 15-minute intervals plus expenses when requested.
3. CONFIDENTIALITY. MAP may disclose to Customer certain confidential and proprietary information concerning, without limitation, trade secrets, devices, designs, specifications, plans, or other ideas or inventions relating to the CtdMAP System.
Customer acknowledges that information relating to the terms of this contract, including, but not limited to, information about the rates, payments, and fees, is confidential and solely for the use of MAP and Customer. Customer agrees not to sell or share the information about the rates, payments, and fees to or with any third party.
Customer agrees that, except as provided for herein, any Confidential Information received from MAP relating to the CtdMAP System shall be kept confidential and shall not be disclosed to third parties. Customer shall inform its employees of the confidential nature of the CtdMAP System and, when requested by MAP, have the employees sign appropriate confidentiality agreements. In addition, any Confidential Information received by Customer shall only be disclosed to those personnel within its organization requiring access to perform tasks contemplated by this Agreement, and any such personnel shall be made aware of the restrictions imposed on the use of the Confidential Information.
Any proprietary information disclosed by a MAP shall remain the exclusive property of the MAP. Upon the termination of this agreement, the receiving Customer shall return to the MAP all written and/or tangible proprietary information and all copies and derivatives thereof. Nothing in this Agreement shall be construed to grant any right or license under any patent, copyright, or any other proprietary right, or grant Customer to make any commitment on behalf of the MAP.
In the event of a breach or threatened breach by Customer or Customer’s employees of the terms of confidentiality, MAP shall be entitled to injunctive or other equitable relief enjoining and restraining Customer and Customer’s employees (with each individual employee is separately responsible for their actions) from disclosing, in whole or in part, any of the proprietary information about the CtdMAP System. Nothing contained herein shall be construed as prohibiting MAP from pursing any other remedies available to MAP including, but not limited to, the recovery of damages from Customer and or Customer’s employees.
4. PARTICIPATION. Each person who voluntarily agrees to participate in Customer’s use of the CtdMAP System shall review an “Authorization to Participate in CtdMAP” agreement and their participation in services provided by Customer relating to the CtdMAP System shall have the same effect as if they had signed the agreement.
5. LIMITED EXCLUSIVE GEOGRAPHIC RIGHTS. Customer is granted initial exclusive rights for their specific company only.
6. RELATIONSHIP. MAP and Customer agree that MAP shall be considered an independent contractor for purposes of providing the services described herein and that this Agreement shall not be construed otherwise. MAP, as a corporation, is only providing a risk score and does not provide medical services. It is understood by the parties that the monitoring services and reports rendered by MAP under the terms of this Agreement shall not establish a patient-physician relationship with individuals monitored by MAP. Each individual should consult with a physician regarding risk levels for individual, job and combined.
7. TERM AND TERMINATION. Term. This Agreement shall be in effect for a period of two (2) years from and after the Effective Date (the “Initial Term”). Either party may terminate this Agreement without Cause (as defined below) during the Initial Term by providing the other party with no fewer than six (6) months written notice of termination. In addition, this Agreement may be terminated early in accordance with the terms as follows.
Termination With Cause. Either party may terminate this Agreement for material breach of this Agreement by the other party (“Cause”) by giving written notice to the defaulting party and, in the case of breaches capable of cure, allowing a thirty (30) day period to cure the breach. In addition, if, in any given year, Customer fails to meet its annual performance targets set forth above MAP will have the option of terminating this Agreement for Cause. Either party may terminate this Agreement immediately upon written notice, without any opportunity to cure, if the other party (x) ceases to do business for any reason, (y) becomes subject to any bankruptcy, insolvency, liquidation or other similar proceedings, which proceedings are not dismissed within fifteen (15) days thereafter, or (z) breaches the confidentiality obligations hereunder.
8. INDEMNITY. It is understood and agreed that Customer has the sole discretion to act upon the reports of MAP. In the event that Customer acts upon such reports in a manner as to adversely affect an individual’s employment, the Customer agrees to defend, indemnify and hold MAP harmless from any and all claims that an individual, organization, or other entity may assert against MAP and/or support staff by reason of Customer’s actions.
9. WARRANTIES. MAP warrants that it has clear title to the CtdMAP System. MAP disclaims all other warranties, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose or noninfringement. MAP has no liability for consequential damages and in no event shall MAP be liable for any damages whatsoever (including, without limitation, damages for loss of business information, or other pecuniary loss) arising out of the use of or inability to use CtdMAP System, even if MAP has been advised of the possibility of such damages. Customer understands and agrees that the Services and the results of the Services, including, without limitation Customer questionnaires and scoring of Customer Questionnaires by MAP, are merely tools to aid consultants and professionals in the area of musculoskeletal disorders (MSDs), and they are not a substitute for such persons’ professional judgment and skill. Therefore, MAP makes not warranties, whether expressed with respect to the any services provided under this agreement.
10. LIMITATION OF LIABILITY: In no event shall MAP be liable for any lost of profits or Revenue, cost of cover, or other special, consequential, or incidental damages arising out of this agreement or any use, inability to use, or malfunction of the services, however caused and however arising. MAP’s total liability under this agreement shall not exceed the amount received by MAP under this agreement that directly relates to the event giving rise to the liability.
11. INDEMNIFICATION: Customer shall be solely responsible for, and shall indemnify, defend and hold MAP harmless from and against, any and all claims based upon: (i) warranties made by Customer, Customer’s employees, officers, directors, or agents that are inconsistent with the warranty terms of this agreement, or (ii) any representations made by Customer, its employees, officers, directors or agents made with respect to the Services that are inconsistent with those representations made by MAP in its own published literature regarding the Services; (iii) in any way arising out of Customer’s agreements with Customer, its distribution of the Services, or its breach of the terms of this Agreement.
12. CUSTOMER OBLIGATIONS: Basic Responsibilities. Customer shall, at its own expense and consistent with the terms of this Agreement: (a) provide training for the Services to its appropriate personnel; (b) appoint an employee with the title of manager who will manage Customer’s relationship with MAP for service and support of the Services; and (e) provide costing data, as reasonably requested by MAP for Services enhancement or research.
Records and Reports. Customer agrees to make, keep and maintain accurate books, records and accounts (collectively, “Records”), all in accordance with generally accepted accounting principles, that, in reasonable detail, accurately and fairly reflect all transactions performed by it hereunder. Customer shall prepare and forward to MAP all other reports reasonably requested and in form approved by MAP. From time to time, but not more than twice per year, MAP may request access to information about Customer’s business reasonably required to insure that Customer is in compliance with the terms of this Agreement and Customer will grant the right for a MAP representative to visit Customer’s place of business during normal business hours at mutually agreed upon times to examine such information.
13. GENERAL PROVISIONS.
(a) Entire Agreement; Amendment. This Agreement is the complete and exclusive agreement of the parties and supersedes all other communications, oral or written, between the parties relating to the Agreement’s subject matter. Any change to this Agreement shall not be valid unless it is in writing and signed by both parties.
(b) Choice of Law/Arbitration. This Agreement shall be governed by the laws of the State of Kansas and venue shall be in Kansas federal district court. All unresolved disputes arising under this Agreement shall be submitted to arbitration under the rules of the American Arbitration Association. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction.
(c) Default. In the event of any default or any obligation under this Agreement which remains uncured fifteen (15) days after receipt of written notice of such default, the non-defaulting party may terminate this Agreement. If this Agreement is terminated, all outstanding fees will immediately become due and payable.
(d) Waiver. Neither the failure nor any delay to exercise a right, remedy or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of a right, remedy or privilege preclude any further exercise of the same.
(e) Severability. A determination that any provision of this Agreement is invalid, illegal or unenforceable shall not affect the enforceability of any other provision.
(f) Notices. All notices and other communications required under this Agreement shall be in writing and shall be deemed to have been received when personally delivered or when deposited in the United States mail, sent registered mail by first class, postage prepaid, addressed as set forth at the end of this Agreement.
(g) Compliance With Laws. MAP and Customer shall comply with the provisions of all applicable international, national and local laws, ordinances, regulations and codes of the United States and in the Territory.
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