Imprivata Evaluation Agreement

IMPORTANT-READ CAREFULLY: Prior to acknowledging your acceptance, be sure to carefully read and understand all of the rights and restrictions described in this Evaluation Agreement (“Agreement”). This Agreement is a legal agreement between you and Imprivata, Inc. (“Imprivata”) and applies to your use, test and evaluation of the Imprivata software which is installed on an Imprivata virtual appliance (collectively the software and appliance shall be referred to herein as “Software”). By installing any Imprivata Software you (either you as an individual or, if the Software will be used by an entity, on behalf of that entity) represent and agree that you have the capacity and authority to bind yourself or, if applicable, the applicable entity, to the terms of this Agreement and agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not install the Software. The applicable Software to be used, tested and/or evaluated shall be as provided to you by Imprivata. Your limited right to use said Software in accordance with this Agreement shall be for a period of thirty (30) day period commencing on delivery of the Software (the “Evaluation Period”).

1. Imprivata grants to Company, and Company accepts, a non-exclusive, non-transferable, royalty-free license to use the Software during the Evaluation Period solely for internal evaluation purposes. The Software is not permitted for production use unless otherwise agreed in writing by Imprivata. The Software may contain software licensed by Imprivata from Oracle America, Inc. (“Oracle”). In such event, as to that software, Oracle is a third party beneficiary of this Agreement and, to the extent permitted by applicable law, Oracle disclaims any liability to you for (a) any damages, whether direct, indirect, incidental, or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the Software. The Software may be provided with additional third party software (the "Third Party Software") which interoperates with the Software but is not a part of the Software. The Third Party Software is not licensed by Imprivata and is governed by its own license terms.
2. Imprivata retains all right, title and interest in and to the Software and, as applicable, the Imprivata hardware, including all copyright, trademark and patent and other intellectual property rights embodied therein. Company shall not permit use of the Software, or any portion thereof, by another party; permit any publication of the results of benchmark tests run on the Software; make any copies of the Software; or attempt to reverse compile, decompile, disassemble or reverse engineer or otherwise attempt to derive the source code for the Software.
3. Each party agrees to use the other party’s Confidential Information (defined below) solely for the purposes of this Agreement and to keep the Confidential Information confidential using all reasonable precautions including, but not limited to, precautions no less stringent than those employed by the receiving party to protect its own Confidential Information. Company shall not disclose to any third party or otherwise use or disclose Confidential Information without the prior written consent of Imprivata including, but not limited to, the fact that Company is participating in the evaluation of the Software. Furthermore, Company shall disclose Confidential Information to its authorized employees on a need-to-know basis only, and such employees, prior to gaining access to the Confidential Information, will have executed appropriate confidentiality agreements with Company that protects the Confidential Information. The restrictions regarding the disclosure of Confidential Information do not extend to any item of Confidential Information which (a) is now or later becomes available in the public domain without the fault of the receiving party; (b) is disclosed or made available to the receiving party by a third party without restrictions and without breach of any relationship of confidentiality; or (c) was independently developed by the receiving party without access to the disclosing party’s Confidential Information. For purposes of this Agreement, "Confidential Information" shall mean all commercially valuable, proprietary and confidential information and trade secrets with respect to a party’s business and products, including all information regarding the Software, that is disclosed or is otherwise learned by a party, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.
4. Company acknowledges that the Software is provided for evaluation purposes only and that Imprivata makes no representations or warranties regarding the Software or its use. IMPRIVATA IS PROVIDING THE SOFTWARE “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IMPRIVATA ASSUMES NO LIABILITY ASSOCIATED WITH COMPANY’S USE OF THE SOFTWARE AND COMPANY EXPRESSLY DISCLAIMS ANY REMEDIAL BENEFIT AS A RESULT OF THIS AGREEMENT. COMPANY IS SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF COMPANY DATA USED IN CONNECTION WITH THE SOFTWARE. UNDER NO CIRCUMSTANCES DOES IMPRIVATA ASSUME ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM OF THE SOFTWARE AND IMPRIVATA SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY LOST BUSINESS PROFITS OR ANY LOSS, DAMAGE OR DESTRUCTION OF DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE. THESE EXCLUSIONS SHALL APPLY EVEN IF IMPRIVATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Except for paragraphs 3 and 4 above, this Agreement and the license granted herein shall terminate (i) immediately upon notice from Imprivata, (ii) automatically on any breach of this Agreement by Company or (iii), unless extended by Imprivata, at the end of the Evaluation Period. On expiration of this Agreement for any reason, Company agrees to promptly return the Imprivata hardware, if applicable, to Imprivata. The Software has been programmed to cease functioning at the end of the Evaluation Period.
6. Company represents and warrants that it complies with all applicable biometric and privacy laws, rules, regulations and orders and agree that any employee and/or contractor biometric and personal information will be collected, handled, and otherwise processed in accordance with applicable law and Company’s policies, including, but not limited to, obtaining required consent(s) by all employees and/or contractors utilizing the Software. Company agrees to indemnify and hold Imprivata harmless from and against any and all claims, demands, actions, threatened actions, governmental enforcement proceedings, costs (including reasonable attorneys’ fees) liabilities, fines, penalties, and other loss arising or resulting from Company’s breach or alleged breach of this warranty.
7. To the extent that Imprivata processes Personal Data in connection with Company’s use of the Software, the parties agree to comply with the Data Processing Addendum (“DPA”) found at https://www.imprivata.com/uk/data-processing-addendum, which is incorporated herein by reference, unless the parties have executed a DPA, in which case such agreement shall govern. The DPA describes how Imprivata will handle Personal Data on Company’s behalf in connection with your use of the Software provided under this Agreement. Personal Data shall have the meaning defined in the DPA. In the event of conflict between the DPA and any provision of this Agreement, the terms of the DPA shall control.
8. To the extent applicable to Company’s use of the Software, Imprivata agrees to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (PL 104-91), the HITECH Act provisions of the American Recovery and Reinvestment Act of 2009 (PL 111-5) and regulations enacted by the United States Department of Health and Human Services at 45 C.F.R. Parts 160 – 164 solely as it relates to the performance of Imprivata’s obligations hereunder. The parties agree to comply with the provisions of the Business Associate Agreement found at https://www.imprivata.com/uk/business-associate-agreement, which is incorporated herein by reference, unless the parties have executed a Business Associate Agreement, in which case such agreement shall govern. In the event of conflict between the Business Associate Agreement and any provision of this Agreement, the terms of the Business Associate Agreement shall control.
9. US Government Restricted Rights Notice - The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting in part of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12,212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Contractor/Manufacturer is: Imprivata, Inc., 20 CityPoint, 6th floor, 480 Totten Pond Rd., Waltham, MA 02451 U.S.A.
10. The Software is not fault-tolerant and is not developed or intended for evaluation or trial or use as on-line control or monitor in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, direct life support machines or weapons systems, in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damages ("High Risk Activities"). Imprivata specifically excludes any express or implied warranty of fitness for High Risk Activities.
11. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and shall be governed by, and construed in accordance with, the substantive laws of the Commonwealth of Massachusetts without regard to its principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) as adopted by any state shall not apply to this Agreement. Company shall not export or re-export the Software or other information or materials provided by Imprivata in violation of the import or export laws of the United States or any other relevant jurisdiction.