NCCN LICENSE Agreement

This License Agreement (the “Agreement”) is effective as of Purchase Date (“Effective Date”), and is entered into by the undersigned (“Licensee”) and the National Comprehensive Cancer Network, Inc. (“NCCN”), with an address of 275 Commerce Drive, Suite 300, Fort Washington, Pennsylvania 19034.

Recital

WHEREAS, NCCN is a 501(c)(3) organization of leading cancer centers that promotes the development of cost-effective, state-of-the-art cancer treatment with optimal outcome expectations for patients;

WHEREAS, NCCN has developed content regarding the currently accepted approaches to cancer treatment, including without limitation, the NCCN Clinical Practice Guidelines in Oncology (“NCCN Guidelines®”), the NCCN Guidelines for Patients®, NCCN Imaging Appropriate Use Criteria™ (“NCCN Imaging AUC™”), the NCCN Drugs and Biologics Compendium (“NCCN Compendium®”), the NCCN Biomarkers Compendium®, the NCCN Imaging Appropriate Use Criteria Compendium™, the NCCN Imaging AUC Compendium™, the NCCN Radiation Therapy Compendium™, the NCCN Chemotherapy Order Templates (“NCCN Templates®”), the NCCN Guidelines with NCCN Evidence Blocks™, the NCCN Flash Updates™, the NCCN Framework for the Resource Stratification of the NCCN Guidelines™ (“NCCN Framework™”), and the NCCN Harmonized Guidelines™, collectively referred to as the “NCCN Content”, and supports the development and widespread use of the NCCN Content among its member institutions and throughout the world;

WHEREAS, Licensee has developed certain health information technology products set forth in Schedule A and desires to use certain NCCN Content in the development and distribution of such products (collectively the Licensed Products); and

WHEREAS, subject to the terms and conditions of this Agreement, Licensee desires to license certain NCCN Content and NCCN desires to grant Licensee a license to use such NCCN Content with regard to the Licensed Products;

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the parties agree as follows:

1. Definitions

1.1  Electronic Medical Record Company (“EMR Company”) means a company that develops software, which includes electronic health records and/or electronic version of a patient’s medical history that is maintained over time by the provider

2. Grant of License.  Subject to the terms and conditions of this Agreement, including the licensing and other restrictions set forth on Schedule A hereto, NCCN hereby grants Licensee a non-transferable, non-exclusive, limited, license to (i) copy and use the specified NCCN Content set forth on Schedule A (the “Licensed NCCN Content”) to develop, modify and maintain the Licensed Products, and (ii) market, sublicense, and distribute the Licensed NCCN Content to Permitted Customers solely as a part of the Licensed Products. 

3. Restrictions on Use. 

3.1 General.  Any use or reproduction of the NCCN Content not in accordance with or in addition to that expressly stated in this Agreement shall require the prior written approval of NCCN (which NCCN may grant or refuse in its sole discretion).  Licensee may not modify, supplement, or otherwise alter the Licensed NCCN Content without the prior written consent of NCCN. 

3.2 Distribution.  Licensee shall not sell, lease, assign, sublicense, or otherwise transfer or disclose the Licensed NCCN Content, in whole or in part, to any third party, except as a component of a Licensed Product in accordance with the terms and conditions of this Agreement, including Schedule A hereto.  Licensee may not transfer, assign or grant any rights in, or ownership of, any NCCN Content to any third party, and may not create derivative works of or add to the NCCN Content licensed hereunder, except as specifically set forth on Schedule A.  Licensee shall promptly refer all third party requests to use or distribute the NCCN Content apart from the Licensed Products directly to NCCN.

3.3 End-User Agreements.  Licensee is authorized to distribute the Licensed Products solely to Permitted Customers which have agreed to be bound by a written contract which contains terms and conditions consistent with, and no less restrictive than, this Agreement ("End-User Agreement").  Licensee shall require each Permitted Customer to receive and accept the End-User Agreement as a condition precedent to the use of the Licensed NCCN Content with the Licensed Product.  Prior to distributing the Licensed Products to Customers in accordance with the terms of this Agreement, Licensee shall provide NCCN with the proposed End-User Agreement form and an overview of the procedures for ensuring that Permitted Customers enter into the End-User Agreement, and Licensee shall comply with all modifications to such form and procedures which are reasonably requested by NCCN.  Licensee hereby agrees that it will deny access to the Licensed Product to customers who do not wish to be bound by the terms and restrictions of the End-User Agreement.

3.4 Notices.  Licensee shall not remove any copyright, trademark or other notices or legends contained on the NCCN Content and all copies of the NCCN Content must contain, at a minimum, the following notices: (a) “© National Comprehensive Cancer Network 2018, All Rights Reserved. NATIONAL COMPREHENSIVE CANCER NETWORK®, NCCN®, NCCN GUIDELINES®, NCCN COMPENDIUM®, NCCN TEMPLATES®, NCCN FLASH UPDATES™, NCCN GUIDELINES FOR PATIENTS®, and POWERED BY NCCN® are trademarks of National Comprehensive Cancer Network, Inc.” and (b) any additional notices set forth in Schedule A hereto. 

  1. Quality Control.  Licensee shall provide the Licensed Products to NCCN for NCCN’s prior review and approval.  NCCN may accept or reject such Licensed Products in NCCN’s sole discretion.  If NCCN notifies Licensee that it has rejected a Licensed Product, Licensee shall revise the Licensed Product and re-submit it to NCCN.  Upon NCCN’s request, Licensee shall provide NCCN with examples of any use of the NCCN Content by Licensee.  Licensee agrees to immediately cease any such use of such NCCN Content upon receipt of notice from NCCN that such use is in violation of this Agreement.

4. Modifications to NCCN Content.  NCCN strives to continuously update its content and therefore may update or otherwise modify the NCCN Content at any time, in NCCN’s sole discretion.   NCCN shall provide to Licensee updates to NCCN Content via Flash Updates™ when such Flash Updates are released to NCCN licensees.  At all times, Licensee shall provide NCCN with accurate contact information for the provision of Flash Updates to Licensee by NCCN. If Licensee has at that time incorporated any portion of the NCCN Content that has been modified in the Licensed Product, then Licensee shall (a) modify or replace such portion of the NCCN Content to reflect NCCN’s modifications to the NCCN Content, and (b) cease all use of the unmodified NCCN Content, each within a period of time specified by NCCN.

5. Third Party Content.  The NCCN Content may contain content (such as figures, tables or illustrations) that NCCN licenses from third parties as displayed on NCCN Third Party Content FTP site: ftp://ftp1.nccn.org/Third Party Content/ (To access: user name:content; password is NCCNcontent) (“Third Party Content”).  Licensee shall be solely responsible for obtaining permissions from each such third party to use any such Third Party Content in the Licensed Products.

6. Fees

6.1 Fees.  In consideration of the license granted hereunder, Licensee shall pay to NCCN the fees set forth on Schedule A hereto (“Fees”).  Except as set forth in Schedule A, all Fees shall be due and payable by Licensee to NCCN within thirty (30) days after the date of invoice, and are non-refundable.  Payment must be made by wire transfer or as otherwise directed by NCCN.  Any Fees which is not paid when due will bear interest at the rate of one and one-half percent (1½%) per month, or the maximum allowable rate, whichever is less.  NCCN reserves the right to suspend Licensee’s rights to use and distribute the NCCN Content, and/or impose additional credit terms, in the event that any payments to NCCN are past due.  Licensee shall pay all of NCCN’s costs and expenses (including reasonable attorney’s fees) to enforce NCCN’s rights under this Section 5. 

6.2 Taxes.  The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on NCCN’s net income. If NCCN has the legal obligation to pay or collect taxes for which Licensee is responsible, the appropriate amount shall be invoiced to and paid by Licensee unless Licensee provides NCCN with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. Intellectual Property Rights. 

7.1 General.  Licensee acknowledges that NCCN or its licensors, as applicable, own all right, title and interest in and to the NCCN Content, including, without limitation, all modifications, updates and other derivative works thereof, all copyright and other intellectual property rights related thereto, and all rights in and to the NCCN Content included in the Licensed Products.  Licensee shall have no right to utilize the NCCN Content except for the limited rights expressly set forth in this Agreement, Licensee hereby agrees that Licensee shall not at any time dispute, challenge, or contest, directly or indirectly, NCCN’s right, title and interest in and to the NCCN Content or the NCCN Content included in the Licensed Products, or assist or aid others to do so.  Licensee will sign and deliver such additional documentation as NCCN may reasonably request confirming the NCCN’s ownership of the NCCN Content or NCCN Content included in the Licensed Products.  Any and all rights not expressly granted to Licensee under this Agreement shall be owned and retained by NCCN or its licensors, if applicable.  For purposes of clarification, the parties agree NCCN does not own the Licensed Products but does own any Licensed NCCN Content used in the development of, or distributed with any Licensed Products.

7.2 Trademarks.  Licensee recognizes that NATIONAL COMPREHENSIVE CANCER NETWORK®, NCCN®, NCCN GUIDELINES®, NCCN COMPENDIUM®, NCCN BIOMARKERS COMPENDIUM®, NCCN IMAGING AUC™, NCCN RADIATION THERAPY COMPENDIUM™, NCCN TEMPLATES®, NCCN EVIDENCE BLOCKS™, NCCN FRAMEWORK™, NCCN HARMONIZED GUIDELINES™, NCCN FLASH UPDATES™, POWERED BY NCCN®, NCCN GUIDELINES FOR PATIENTS®, and all other trademarks and service marks associated with NCCN Content (“Marks”) are owned by NCCN.  NCCN retains all goodwill and intellectual property rights in such Marks.  Licensee shall not use the Marks or any confusingly similar Marks for any purpose, except as permitted hereunder, without the prior written approval of NCCN, which approval may be withheld in NCCN’s sole discretion.  Each approved use of the Marks shall require the independent written approval of NCCN. 

7.3 Confidential Information.  Licensee agrees that any non-public information it obtains under this Agreement, including the terms of this Agreement, is NCCN’s confidential information (“Confidential Information”).  Licensee may not use the Confidential Information other than to perform this Agreement. Licensee will not disclose the Confidential Information to third parties without NCCN’s prior written permission.  Upon expiration or termination of this Agreement, Licensee shall return all Confidential Information to NCCN.

8. Term and Termination

8.1 Term.  Licensee’s right and license to copy, use and distribute the Licensed NCCN Content in a Licensed Product in accordance this Agreement (including Schedule A hereto) shall begin on the Effective Date and expire one (1) year thereafter, at which time this Agreement shall automatically renew under the same terms unless 120 days written notice by either party is provided to the other party prior to the end of the then-current term.  Subject to NCCN’s delivery of all updates and additions to the NCCN Content pursuant to Section 3, Licensee agrees that NCCN may increase the annual licensing fee up 10% above the then-current licensing fee for any such renewal term.

8.2 Termination.  At any time prior to such termination, NCCN may terminate this Agreement if NCCN, in its sole discretion, determines that Licensee has violated any term of this Agreement or permitted third parties to use or copy the NCCN Content or Permitted Works.  Licensee may terminate this Agreement upon one hundred twenty (120) days prior written notice to NCCN. Should the Agreement be terminated at Licensee’s option, all previously paid Fees shall be non-refundable.

8.3 Effect of Termination.  Upon the expiration or termination of this Agreement, Licensee shall immediately cease using and distributing the NCCN Content in the Licensed Products, and all licenses and rights granted by NCCN to the Licensee hereunder shall terminate provided that, except where this Agreement is terminated for cause by NCCN, subject to the payment of all Fees due hereunder, Licensee have the right to distribute Licensed Products containing the Licensed NCCN Content for all accepted orders to be delivered within thirty (30) days of the date of termination and Licensee shall have the right to continue to provide users of the Licensed Products access to the Licensed NCCN Content under the terms of any agreement with such user existing prior to the date of termination for a period not to exceed one (1) year following the termination date; provided that in the event that the NCCN Content is not updated or otherwise modified so that it is not identical to the NCCN Content provided by NCCN to its licensees, Licensee shall remove, and shall not otherwise use, the NCCN Content with products subject to such orders or agreements.  The provisions of Sections 5, 6, 7.3, 8, 9, 10 and 11 shall survive the expiration or termination of this Agreement.

9. Representations, Warranties and Covenants

9.1 Applicable Laws.  Each party shall comply with all prevailing laws, rules and regulations and obtain all necessary approvals, consents and permits required by the applicable agencies of the government of the jurisdictions that apply to its activities or obligations under this Agreement.

9.2 Licensee.  Licensee represents, warrants and covenants to NCCN: (a) Licensee shall be the sole developer of the Licensed Products; (b) no persons or entities other than Licensee and NCCN (with respect to the Licensed NCCN Content included in the Licensed Products) have or may claim any rights in the Licensed Products; (c) Licensee has not entered into any agreement that would conflict with this Agreement (e.g. exclusive agreement with a third party); (d) upon NCCN’s request, Licensee will promptly provide any and all additional facts, materials, software and documents relating to the Licensed Products; and (e) Licensee has taken and instituted all appropriate, reasonable and necessary steps and procedures to keep all non-public information about the NCCN Content and NCCN in strict confidence as trade secrets and Confidential Information of NCCN and will continue to do so unless and until instructed otherwise by NCCN.

10. Restrictions; Disclaimers; Limitation on Damages.

10.1 General.  The NCCN Guidelines® are a statement of consensus of the authors regarding their views of currently accepted approaches to cancer treatment.  The recommendations regarding the uses and indications in the NCCN Flash Updates™, NCCN Compendium®, the NCCN Framework™, and the NCCN Guidelines for Patients® have been derived directly from the NCCN Guidelines®.  The NCCN Compendium® neither represents an all-inclusive listing of every drug and biologic nor every appropriate use and indication for drugs and biologics. The NCCN Templates® are peer reviewed statements of consensus of their authors derived from the NCCN Guidelines® for the conditions the NCCN Templates® address.  The NCCN Templates® are not exhaustive and do not represent the full spectrum of care or treatment options described in the NCCN Guidelines® or the NCCN Compendium® or include all appropriate approaches or combinations of drugs or biologics for the treatment of cancer.  A NCCN Template does not constitute an order.

10.2 No Representations or Warranties regarding Patient Care or Treatment.  NCCN makes no representations or warranties and explicitly disclaims the appropriateness or applicability of the NCCN Content to any specific patient’s care or treatment.  Any clinician seeking to treat a patient using the NCCN Content is expected to use independent medical judgment in the context of individual clinical circumstances of a specific patient’s care or treatment.

10.3 DISCLAIMER OF WARRANTIES.  NCCN MAKES NO WARRANTIES CONCERNING THE NCCN CONTENT, WHICH IS PROVIDED “AS IS.” NCCN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  NCCN DOES NOT WARRANT THE ACCURACY, CURRENCY APPROPRIATENESS, APPLICABILITY OR COMPLETENESS OF THE NCCN CONTENT, NOR OF ANY PARTICULAR GUIDELINE OR TEMPLATE, NOR DOES NCCN MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE NCCN CONTENT IN TREATMENT.

10.4 LIMITATIONS OF LIABILITY.  NCCN’S LIABILITY TO LICENSEE FOR DIRECT FROM LICENSEE UNDER THIS AGREEMENT. IN NO EVENT SHALL NCCN OR ITS MEMBERS BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE LICENSE GRANTED UNDER THIS AGREEMENT OR USE OF THE NCCN CONTENT, INCLUDING, WITHOUT LIMITATION, LOSS OF LIFE, PHYSICAL INJURY, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF INCOME OR PROFIT, OR ANY OTHER DAMAGES, LOSSES OR CLAIMS, EVEN IF NCCN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR CLAIMS.

11. Indemnity.  Licensee agrees to indemnify, defend and hold NCCN, its officers, employees, directors and agents harmless from and against any and all damages, losses, deficiencies, liabilities, costs and expenses (including attorneys’ fees) that result from, relate to or arise out of any claim regarding use of the Licensed Products, including, without limitation, that any Licensed Products (a) violate any ordinance, law or regulation, or (b) infringe or misappropriate any intellectual property or other rights of any third party, except to the extent such infringement or misappropriation is due to the NCCN Content (provided such claim is not based on the inclusion of the NCCN Content in the Licensed Products or Licensee’s failure to comply with the terms of this Agreement).

12. General.

12.1 Independent Contractor.  NCCN and Licensee are independent contractors. Neither party may direct or control the day-to-day activities of the other or create or assume any obligation on behalf of the other.  Licensee, its employees and agents, if any, are not, and shall not be deemed to be at any time during the term of this Agreement, employees of NCCN.

12.2 Assignment.  Licensee may not assign its rights or obligations under this Agreement without the prior written consent of NCCN, which consent NCCN may grant or refuse in NCCN’s sole discretion, and any purported assignment without the consent of NCCN shall be void.  NCCN may freely assign this Agreement.  Subject to the above, this Agreement will be binding upon the parties’ respective successors and permitted assigns.

12.3 Notices.  Any notice that one party sends to the other in connection with this Agreement must be in writing and (a) sent via first class mail, (b) delivered personally to the recipient, (c) sent by express delivery by a nationally recognized overnight courier, or (d) sent electronically, in each case to the address listed on the signature page to this Agreement.  A notice shall be deemed to be effective upon the sooner of actual receipt by the recipient, or, if sent via first class mail, one week after mailing.  A notice sent electronically is deemed effective on the same day if sent during the recipient’s business hours, or on the next business day of the recipient otherwise.

12.4 Entire Agreement; Waiver and Amendment; Severability.  This Agreement constitutes the entire agreement between NCCN and Licensee with respect to the subject matter.  Either party’s failure to enforce any provision of this Agreement will not be construed as a waiver of any provision or right.  Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right unless such waiver is in writing and signed by the party against whom enforcement of such waiver is sought.  No amendment or modification hereof will be valid or binding upon either party unless made in writing and duly signed by both parties.  If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions shall not be affected thereby. Upon any conflict between this Agreement and Schedule A hereto, the terms of this Agreement shall control. 

12.5 Remedies for Violation.  NCCN reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including, but not limited to, the right to withdraw or deny access to the NCCN Content and the right to seek injunctive relief.

12.6 Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. An electronic copy of this Agreement, including the executed signature pages, shall be deemed an original. 

12.7 Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without giving any effect to the conflict of law provisions thereof.  This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.

12.8 Arbitration.  Any controversy or claim will be determined by one disinterested arbitrator in binding arbitration in Philadelphia, Pennsylvania pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”).  If the parties fail to appoint an arbitrator within 30 days, the AAA shall select the arbitrator promptly thereafter.  The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.  The language of the arbitration shall be English, and each party will provide at its cost all evidence and information to the arbitrator in English. Notwithstanding the foregoing, nothing in this Section 11.8 shall be construed as precluding a party from bringing an action for injunctive relief or other equitable relief prior to the initiation or completion of the above procedure.

12.9 Export.  Licensee agrees that the NCCN Content will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act, or any other export laws or restrictions.

 

IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute and deliver this Agreement as of the Effective Date.

 

SCHEDULE A

Specific License Terms

Licensed NCCN Content:

NCCN Chemotherapy Order Templates (NCCN Templates®) via PDF versions from NCCN.org

Permitted Use of NCCN Content:

Site license and permission to use as a reference for integration within in-house EMR only.

For purposes of clarity, this is for hospital use only and does not allow EMR Company to use as a reference for integration.

Permitted Distribution :

Print and electronic within in-house EMR

Permitted Customers:

Number of users as reflected in the terms and fees in the shopping cart.

Permitted Territory:

United States of America

 

Fees

  1. Upfront Payment.  Licensee agrees to pay annual fees as reflected in the shopping cart.

Additional Terms

  1. Licensee is fully responsible for the design, development, use, marketing, distribution and support of the Licensed Product and this Agreement does not and shall not be interpreted to create any liability or responsibility by NCCN to anyone with respect to the Licensed Products or their use, including with respect to the Licensed Products quality, performance, or compliance with applicable laws or regulations.
  2. Licensee may not translate, delete, extract portions, change, adapt, or modify the NCCN Content except as approved by NCCN.  Any modification of Licensed Products must be approved by NCCN prior to distribution.  NCCN reserves the right to make edits/corrections to the use of the NCCN Content to insure that the accuracy and appearance of the Licensed NCCN Content contained in the Licensed Product.
  3. Subject to agreement between NCCN and Licensee regarding form and format, the NCCN logo and header, the NCCN copyright footer, and Clinical Trials box must be part of all displays of the Licensed NCCN Content in the Licensed Products.  In addition, documentation provided with the Licensed Products must contain the following notice:

The NCCN Guidelines® and other content provided by NCCN are works in progress that may be refined as often as new significant data becomes available. They are statements of consensus of its authors regarding their views of currently accepted approaches to treatment.  Any clinician seeking to apply or consult any NCCN Guidelines® or other NCCN Content is expected to use independent medical judgment in the context of individual clinical circumstances to determine any patient’s care or treatment.  The National Comprehensive Cancer Network makes no warranties of any kind whatsoever regarding their content, use or application and disclaims any responsibility for their application or use in any way.