DHCS All Plan Letter 19-018: Proposition 56 Directed Payments for ACEs Screening Services (December 26, 2019)

END USER SUBLICENSE AGREEMENT

PLEASE READ CAREFULLY: This End User Sublicense Agreement (the “Agreement” or “Sublicense”) is a legally binding agreement between you (an individual or an entity, hereinafter “You” or “Sublicensee”) and the Department of Health Care Services (“DHCS”) for the use of the Pediatric ACEs and Related Life-events Screener (“PEARLS”) for children and adults up to the age of 21.

BY WAY OF DOWNLOADING, COPYING, ACCESSING, OR OTHERWISE USING THE PEARLS TOOL, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THEN YOU HAVE NO RIGHTS TO THE PEARLS TOOL AND MAY NOT DOWNLOAD, COPY, ACCESS, OR OTHERWISE THE PEARLS TOOL.

THE PEARLS TOOL IS PROTECTED BY COPYRIGHT LAWS AND IS OTHERWISE PROTECTED INTELLECTUAL PROPERTY. THE PEARLS TOOL IS LICENSED AND IS NOT SOLD.

    1. The PEARLS Tool. The PEARLS tool is a unique tool that assess for both Adverse Childhood Experiences (“ACEs”) such as abuse, neglect, and household challenges, and related events, such as discrimination, food insecurity, and community violence, thought to be risk factors for toxic stress. The PEARLS tool was made in the course of research under the auspices of the Children’s Hospital Research Center at Oakland (“BCHO”) and the University of California, San Francisco. BCHO has licensed the PEARLS tool to DHCS and provided DHCS with the right to sublicense the PEARLS tool.
    2. Sublicensee Attestation. By agreeing to this Agreement, You attest that You are a provider of health care services to Medi-Cal beneficiaries, a Medi-Cal Managed Care Plan, a Medi-Cal beneficiary, a parent or guardian of a Medi-Cal beneficiary, or an Electronic Health Records (“EHR”) vendor.
    3. The Sublicense. Subject to the terms of this agreement, DHCS hereby grants to Sublicensee a non-exclusive, royalty-free, non-assignable, non-transferable sublicense (the “Sublicense”) to the PEARLS tool. Under the Sublicense, Sublicensee may use the PEARLS tool as directed, and may save, download, print, copy, reproduce, or distribute the PEARLS tool to facilitate such use.
    4. Use in a Remote Patient Portal. The PEARLS tool was developed as a screener of risk for toxic stress and has been tested for safe, reliable screening when used during in-person (i.e., synchronous) visits. The questions and responses of the PEARLS tool may be administered using the EHR as structured data fields to facilitate record and follow-up. Because the PEARLS tool was never studied under asynchronous screening formats, DHCS cannot provide recommendations regarding its use in a remote patient portal. This includes information around safety and adequate windows of response. Sublicensee acknowledges that DHCS is not responsible for providing any recommendations regarding the use of the PEARLS tool in a remote patient portal, and that DHCS is not responsible for overseeing implementation and use of the PEARLS tool in a remote patient setting. This includes information around safety and adequate windows of response.
    5. Disclaimer of Warranty. This Sublicense and the associated PEARLS tool are provided WITHOUT WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. DHCS MAKES NO REPRESENTATION OR WARRANTY THAT THE PEARLS TOOL WILL NOT INFRINGE ANY COPYRIGHT, PATENT, OR OTHER PROPRIETARY RIGHT.
    6. Limitations of Liability.
      1. IN NO EVENT WILL DHCS BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM EXERCISE OF THIS SUBLICENSE OR THE USE OF THE PEARLS TOOL.
      2. DHCS WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST BUSINESS, ENHANCED DAMAGES FOR INTELLECTUAL PROPERTY INFRINGEMENT OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED BY SUBLICENSEE, JOINT VENTURES, AFFILIATES, OR DEVELOPMENT PARTNERS ARISING OUT OF OR RELATED TO THIS AGREEMENT. DHCS WILL NOT LIABLE FOR ANY CAUSES OF ACTION OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND BREACH OF WARRANTY) EVEN IF DHCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    7. Indemnity and Duty to Defend. Sublicensee shall indemnify, defend, and hold harmless DHCS from and against all claims, actions, damages, losses, liabilities (or actions or proceedings with respect to any thereof), whether or not rightful, arising from any and all actions or claims by any third party or expenses related thereto (including, but not limited to, all legal expenses, court costs, and attorney’s fees incurred in investigating, preparing, serving as a witness in, or defending against, any such claim, action, or proceeding, commenced or threatened) to which DHCS and/or any employee, contractor, or agent acting on DHCS’s behalf may be subject, whether or not Sublicensee is a party to any pending or threatened litigation, which arise out of or are related to (i) claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by Sublicensee’s use, reproduction, manufacture, sale, offer to sell, distribution, import, export, modification, public and private  performance/display, license, and disposition of the PEARLS tool; (ii) the incorrectness or breach of any of the representations, warranties, covenant or agreements of Sublicensee pertaining the PEARLS tool; or (iii) any intellectual property infringement, or any other type of actual or alleged infringement claim, arising out of Sublicensee’s use, reproduction, manufacture, sale, offer to sell, distribution, import, export, modification, public and private performance/display, license, and disposition of the PEARLS tool. This indemnity obligation shall apply irrespective of whether the infringement claim is based on a patent, trademark or copyright registration that issued after the effective date of this Agreement. DHCS reserves the right to participate in and/or control, at Sublicensee’s expense, any such infringement action brought against DHCS.
    8. Governing Law. This Agreement is to be interpreted and construed in accordance with the laws of the State of California.
    9. Miscellaneous
      1. The relationship between DHCS and Sublicensee established by this Agreement is that of independent contractors. No joint venture or partnership is established by this Agreement. Neither party is the agent, broker, partner, employee, or legal representative of the other for any purpose.
      2. The headings of any sections are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of this Agreement.
      3. This Agreement embodies the entire understanding of DHCS and Sublicensee and supersedes all previous communications, representations or understandings, either oral or written, between them relating to the subject matter of this Agreement.
      4. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, all other provisions of this Agreement have force and effect and will not be affected thereby.
      5. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.