1. General. Vendor provides a computer system for emergency and non-emergency medical transportation services providers (the "System") which consists of technology hosted on Vendor's computers and accessed remotely, via the cloud, and may or may not include software installed on Customers' computers. The parties have agreed that Vendor will provide access to specified parts of the System to Customer, as set forth in one or more present or future Orders, as well as such Professional Services as the parties may agree, as set forth in one or more present or future SoWs.
2. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
2.1 "AUP" means Vendor's acceptable use policy currently posted at www.medapoint.com/aup, or any acceptable use policy posted to the Vendor's public website from time to time.
2.2 "Cloud Components" means such elements of the System as Vendor hosts on its computers pursuant to an applicable Order.
2.3 "Customer Data" means data in electronic form managed or stored in the System by any User.
2.4 "Deliverables" means any software or other deliverable created pursuant to Professional Services.
2.5 "Documentation" means Vendor's standard manual related to use of the System.
2.6 "Licensed Software" means such elements of the System, if any, as Customer is to run on its computers as set forth in the applicable Order and as may be provided from time to time by Vendor.
2.7 "Loss" or "Losses" means any and all real or alleged losses, damages, injuries, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, that are incurred by Indemnified Party, including any taxes imposed on any such amounts.
2.8 "Order" means an order for access to one or more specified elements of the System, executed by Customer.
2.10 "Professional Services" means such Vendor services related to training, implementation, installation, operation and customization of the System, as well as the System's integration with other Customer systems and processes, as are set forth in an SoW.
2.11 "SoW" means a statement of work on the form attached hereto as Attachment A executed from time to time by Vendor and Customer.
2.12 "SLA" means the representations and warranties of Vendor as contained in Section 11.1(c) below.
2.13 "Effective Term" is defined in Section 14.1 below.
2.14 "User"means any company or individual who uses the System on Customer's behalf or through Customer's account or passwords, whether authorized or not, including without limitation Customer and Customer's customers, and any of their employees and agents.
3. CLOUD COMPONENTS & USE OF THE SYSTEM IN GENERAL.
3.1 Use of the System. During the Effective Term, and subject to the terms and conditions of this Agreement, Customer may access and use such Cloud Components as are indicated in any effective Order, including such features and functions as the Order requires.
3.2 Service Levels. Vendor shall provide the remedies listed in Section 13.1 for any failure of the System listed in the SLA. Such remedies are Customer's sole remedy for any failure of the System, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
3.3 Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users' use of the System.
3.4 System Revisions. Vendor may revise the SLA or the features and functions of the Cloud Components at any time, provided no such revision materially reduces features or functionality provided pursuant to an Order.
3.5 Customer's Users. Subject to the provisions below of this Section 3.5, Customer may authorize Users to access and use the System in such numbers and according to such restrictions as are set forth in the applicable Order. Customer shall provide to Vendor complete name and contact information for each proposed User upon (for employees and officers of Customer only) or before (for all other Users) providing such access, and update such information as soon as it becomes aware of any change. Customer shall make no representations or warranties regarding the System or any other matter, to Customer's authorized Users or any other third party, from or on behalf of Vendor, and Customer shall not create or purport to create any obligations or liabilities for Vendor. Customer shall be jointly and severally liable to Vendor for Customer's Users' acts and omissions related to the System. Vendor shall have no obligation to provide support or other services, SLA remedies, or other remedies to Customer's Users except as expressly provided for herein.
3.6 Registration Data. Registration is required to establish a user account in the System. Customer agrees to cause all Customer Users to (i) to provide certain current, complete, and accurate information about themselves as prompted to do so by the System's online registration form ("Registration Data"), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. Customer warrants that its Users' Registration Data is and will continue to be accurate and current, and that Customer's Users are authorized to provide such Registration Data. Customer authorizes Vendor to verify its Users' Registration Data at any time, and in the event any such Registration Data is untrue, inaccurate, not current or incomplete, Vendor may, in its sole discretion, suspend or terminate User's access rights to the System. Solely to enable Vendor to use information Customer supplies to Vendor internally, Customer grants to Vendor a nonexclusive license to (i) convert such information into digital format such that it can be read, utilized and displayed by Vendor's computers or any other technology currently in existence or hereafter developed capable of using digital information, and (ii) combine the information with other content provided by Vendor in each case by any method or means or in any medium whether now known or hereafter devised.
3.7 Access Restriction and Denial. Vendor reserves the right to deny access to any proposed or current User i) who is or represents a competitor to Vendor or ii) whom Vendor deems would be potentially materially risky or harmful to Vendor's business, customers or prospects in any way if such proposed or current User were granted or allowed to continue access to the System.
4. LICENSED SOFTWARE.
4.1 License. Vendor hereby grants Customer a nonexclusive license use the Licensed Software, in such quantities as are set forth on the applicable Order, as necessary for Customer's internal business purposes and solely as a component of the System, provided Customer complies with the restrictions set forth below in Section 4.2 (Restrictions on Software Rights). Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Customer, or any other third party other than Customer's Clients as specifically authorized in this Agreement, and Customer shall not permit any such use.
4.2 Restrictions on Software Rights. Copies of the Licensed Software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Licensed Software itself. Furthermore, Customer receives no rights to the Licensed Software other than those specifically granted in Section 4.1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Licensed Software; (b) use the Licensed Software in any way forbidden by Section 8.1 below; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Licensed Software's source code.
4.3 Delivery. Vendor shall provide the Licensed Software to Customer, through a reasonable system of electronic download, within 10 days of the Effective Date.
4.4 Hosting & Management. Customer shall host and manage the Licensed Software as required by any hosting and management, operating system, hardware configuration or other technical requirements communicated to Customer by Vendor from time to time (the 'Hosting and Management Requirements". Vendor shall have no responsibility or liability for any failure of the System, including without limitation pursuant to the SLA, resulting from Customer's failure to comply with the requirements of the Hosting and Management Requirements.
5. PROFESSIONAL SERVICES.
5.1 Provision of Professional Services. Vendor shall provide the Professional Services, and Customer shall provide such assistance and cooperation as are necessary or convenient to facilitate the Professional Services or are called for in a SoW.
5.2.1 Acceptance & Rejection. Deliverables will be considered accepted ('Acceptance') (a) when Customer provides Vendor written notice of acceptance or (b) 10 days after delivery, if Customer has not first provided Vendor with written notice of rejection. Customer may reject a Deliverable only in the event that it materially deviates from its specifications and requirements listed in the applicable SoW and only via written notice setting forth the nature of such deviation. In the event of such rejection, Vendor shall correct the deviation and redeliver the Deliverable within 20 days. After redelivery pursuant to the previous sentence, the parties shall again follow the acceptance procedures set forth in this Subsection
5.2(a). This Subsection 5.2(a), in conjunction with Customer's right to terminate for material breach where applicable, sets forth Customer's only remedy and Vendor's only liability for failure of Deliverables.
5.2.2 Incorporation of Deliverables. Upon Acceptance, each Deliverable will constitute an element of the Cloud Components or Licensed Software, as specified in the applicable SoW, and will thereafter be subject to this Agreement's terms regarding Cloud Components or Licensed Software, including without limitation license and indemnity terms. Vendor retains ownership of all Deliverables, and Customer receives no right, title, or interest in or to Deliverables except as specifically set forth in this Agreement.
6. FEES & REIMBURSEMENT.
6.1 Customer shall: (a) pay Vendor the fee set forth in each Order, upon receipt, (the 'Subscription Fee") for each Effective Term, as well as such fees as are set forth in each SoW ('Professional Service Fees"); and (b) reimburse such expenses as Vendor reasonably incurs in provision of Professional Services. Amounts listed in SoW's are estimates of Professional Services fees and shall not be binding, except to the extent that the SoW specifically provides to the contrary. Vendor will not be required to refund Subscription Fees or Professional Service Fees under any circumstances.
6.1.1 Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for any applicable taxes or levy (including interest and penalties). Client shall reimburse MP Cloud Technologies and hold MP Cloud Technologie's harmless for all sales, use, VAT, excise, property or other taxes or levies which MP Cloud Technologie's is required to collect or remit to applicable tax authorities. This provision does not apply to MP Cloud Technologie's income or franchise taxes, or any taxes for which Client is exempt, provided Client has furnished MP Cloud Technologies with a valid tax exemption certificate. This Section 6.1 shall apply in any and all cases and shall not be limited by any other language in this Agreement.
6.1.2 Automatic Payments. Client shall pay Vendor within 11 business days of receiving a complete and correct invoice for services via ACH. Vendor shall issue an electronic invoice to Client on a monthly basis, no later than the first (1 st ) of the month for services provided the month prior. If there are no disputes in writing by Client the funds will be automatically withdrawn from Client bank account on the eleventh business day (14,15 or 16th) of the month. If a dispute is provided by Client in writing, Client and Vendor have two (2) business days to resolve the dispute.
6.2 Certain Increases.
6.2.1 In the event of any change in applicable law or the issuance of any directive from a governmental or regulatory entity that may cause Vendor an increase in the cost of providing the System, the Licensed Software, or the Professional Services, Vendor reserves the right to allocate developmental costs associated with implementing the change or order across all affected customers and/or modify its rates for access to the System, Licensed Software, and/or Professional Services retroactive to the effective date of such change, order or other directive.
6.2.2 Additionally, Vendor reserves the right to increase or modify any Subscription Fee, Licensed Software license fee, Usage Fee and/or Professional Service Fees not more than once each calendar year.
6.2.3 Vendor will use commercially reasonable efforts to deliver to Customer thirty (30) days' advance notice of such increase in costs described in (a) and (b) above, as well as other reasonable information relating to any applicable change, order or other directive necessitating such increase(s). In the event of a material increase in such costs, Customer may terminate this Agreement upon thirty (30) days' written notice to Vendor. Customer must exercise its right to terminate this Agreement in accordance with this subparagraph (c) within thirty (30) days after Customer's receipt of notice from Vendor of such material increase in costs.
6.2.4 For customers with flat rate contract pricing, a rolling 3 month average of utilization volume will be evaluated and prices adjusted accordingly.
7. CUSTOMER DATA & PRIVACY.
7.1 Use of Customer Data. Unless it receives Customer's prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Vendor's other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer's expense.
7.3 Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, 0r guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
7.4 Data Accuracy. Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
7.5 Data Deletion. Vendor agrees to provide a copy of data upon termination of contract.
7.6 Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Vendor's computers or other media, any data ('Excluded Data') regulated pursuant to any law or regulatory scheme (such as but not limited to FACTA, PCI DSS, EU Data Protection Directive) restricting the use, storage access or security of information or data other than the Health Insurance Portability and Accountability Act of 1996, (the "Excluded Data Laws"). CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR'S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
7.7 Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 7, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. ('Aggregate Data" refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users.)
8. CUSTOMER'S RESPONSIBILITIES & RESTRICTIONS.
8.1 Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except Customer's Clients as specifically authorized by this Agreement; (b) provide System passwords or other log-in information to any third party, except Customer's Clients as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 8.1, including without limitation by Users, Vendor may suspend Customer's access to the System without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 8.1, or this Agreement, but Vendor is free to take any such action it sees fit.
8.2 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
8.3 Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
8.4 Customer's Clients & Other Users; System Access. Customer is responsible and liable for: (a) Customer's Clients' and other Users' use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer's account, whether authorized or unauthorized.
9. IP & FEEDBACK.
9.1 IP Rights in the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components, except to the limited extent that this Agreement specifically sets forth Customer license rights to Licensed Software. Customer recognizes that the System and its components are protected by copyright and other laws.
9.2 Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer's Clients, or other Users provide to Vendor, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict Vendor's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Customer's Client or other User in question. ('Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Vendor's products or services.)
10. CONFIDENTIAL INFORMATION.
10.1 Confidential Information. Any information disclosed by Vendor (the 'Disclosing Party") to Customer (the 'Receiving Party"), either directly or indirectly in writing, orally or by inspection of tangible or intangible objects, including without limitation documents, System design and features, business plans, source code, software, documentation, financial analysis, marketing plans, customer names, customer lists, customer data, together with analyses, compilations, studies or other documents or materials prepared by a Receiving Party or its agents, directors, affiliates, or employees (collectively, such Party's "Representatives"), which contain or otherwise reflect or are generated from such information, is hereinafter referred to as the "Information," provided, however, that "Information" shall not include information that (a) is or becomes generally available to the public other than as a result of a disclosure by a Party or any Representative, (b) is or becomes available to a Party on a non-confidential basis from a source other than the other Party that is not bound by a duty of confidentiality to Disclosing Party or Receiving Party, (c) is independently developed by a Party solely from publicly available information, or (d) is disclosed pursuant to an order or requirement of a court, government administrative agency or other governmental body.
10.2 Non-Use and Non-Disclosure. The Receiving Party agrees not to use any Information for any purpose except to perform under the Arrangement, provided that each Receiving Party agrees not to disclose any Information to third parties or to its Representatives, except to such persons who are required to have the Information in order to perform under the Agreement and who are under an obligation to the Receiving Party to preserve the confidentiality of such Information at least to the extent provided for herein. The Receiving Party shall be responsible as a principal for any disclosures made by any persons to whom the Receiving Party discloses any Information, as if such persons had been party to a confidentiality agreement with the Disclosing Party with terms and conditions identical to those in this Agreement and the Receiving Party had signed as a guarantor of such person's obligations under such confidentiality agreement. The Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party's Information and which are provided to the Receiving Party hereunder.
10.3 Maintenance of Information. The Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Information. Without limiting the foregoing, the Receiving Party shall take at least those measures that the Receiving Party takes to protect its own most highly confidential information and shall have its Representatives, if any, who have access to Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any disclosure of Information to such Representatives. The Receiving Party shall not make any copies of Information unless the same are previously approved in writing by the Disclosing Party. The Receiving Party shall reproduce the Disclosing Party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. The Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Information.
10.4 No Warranty. ALL INFORMATION IS PROVIDED 'AS IS". NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
10.5 Return of Materials. All documents and other tangible objects containing or representing Information and all copies thereof which are in the possession of the Receiving Party shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party upon the Disclosing Party's request.
10.6 No License. Nothing in this Section 10 is intended to grant any rights to either Party under any patent, trademark, copyright or other intellectual property right of the other Party, nor shall this Agreement grant the Receiving Party any rights in or to Information except as expressly set forth herein.
10.7 Survival. This Section 10 shall survive for a period of five years from the last date of disclosure of any Information.
10.8 Remedies. The Receiving Party agrees that any violation or threatened violation of this Section 10 will cause irreparable injury to the Disclosing Party, entitling the Disclosing Party to obtain injunctive relief in addition to all legal remedies.
11. REPRESENTATIONS & WARRANTIES.
11.1 From Vendor.
11.1.1 Re IP Rights in the System. Subject to the next sentence, Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor's representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsections 12.1(a) through 12.1(f) below. In the event of a breach of the warranty in this Section 11.1, Vendor, at its own expense, will promptly take the following actions: (i) secure for Customer the right to continue using the System; (ii) replace or modify the System to make it non-infringing; or (iii) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Effective Term left after such termination. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states Vendor's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 11.1 and for potential or actual intellectual property infringement by the System.
11.1.2 Re Professional Services. Vendor represents and warrants that the Deliverables will conform to their specifications set forth in the applicable SoW (as defined in Subsection 5.2(a) above).
11.1.3 Service Level Agreement. We guarantee that the System will have an Uptime of at least 99.9% on a monthly basis. 'Uptime" means access to the System for Customer's Users, excluding periods of downtime for (i) scheduled maintenance, (ii) upgrades, (iii) a problem caused by any User, (iii) Vendor's taking the application offline as a defensive measure against any hacker, denial-of- service, or similar attacks, and/or (iv) force majeure.
11.2 From Customer.
11.2.1 Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
11.2.2 Re Customer's Users. Customer represents and warrants that: (i) Customer will accurately identify each of Customer's Users and will not provide any inaccurate information about a Customer's User to or through the System; (ii) each of Customer's Users will be a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; (iii) none of Customer's Users will be or will represent a competitor to Vendor; and (iv) Customer will not grant access to any User who will harm, or who will materially increase the risk of or harm to, Vendor's business, customers or prospects in any way.
11.3 Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 11.1 above or elsewise prohibited by law, CUSTOMER ACCEPTS THE SYSTEM 'AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
VENDOR DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT VENDOR WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGEs THAT VENDOR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12.1 From Vendor. Vendor shall defend and indemnify Customer and Customer's Associates (as defined below in Section 12.3) against any 'Vendor Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right by the System. Vendor Indemnified Claims do not include any claim, suit proceeding etc. arising out of: (a) Customer's breach of this Agreement; (b) revisions to the Licensed Software or other System components made without Vendor's written consent; (c) Customer's failure to incorporate Licensed Software updates or upgrades that would have avoided the alleged infringement, provided Vendor offered such updates or upgrades without charges not otherwise required pursuant to this Agreement; (d) Vendor's modification of Licensed Software in compliance with specifications provided by Customer, including without limitation Deliverables to the extent created based on such specifications; (e) any Deliverable, if the SoW or a disclosure provided at or before delivery states that such Deliverable incorporates third party software or other assets; or (f) use of the System in combination with hardware or software not provided by Vendor.
12.2 From Customer. Customer shall indemnify and defend Vendor and Vendor's Associates (as defined below in Section 12.3) from and against any Losses arising out of or related to Customer's or Customer's Users' alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Customer's Clients or other Users or by Customer's or Customer's Clients' employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer's account, including without limitation by Customer Data; (d) claims that use of the System through Customer's account, including by Customer's Clients or other Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims pursuant to the preceding sentence also include (f) claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Losses from claims listed above in this Section 12.2 include, without limitation, those claims arising out of or related to Vendor's negligence.
12.3 Litigation & Additional Terms. The obligations of the indemnifying party ('Indemnitor") pursuant to Section 12.1 or 12.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor's expense and payment of judgments; and (b) will be excused to the extent that the other contracting party's ('Indemnified Party's") or any of such Indemnified Party's Associates' failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party's 'Associates" are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
13. LIMITATION OF LIABILITY.
13.1 Service Level Credits. Customer's sole remedy for a breach of the Uptime guarantee in Section 11.1(c) is a credit, in the form of an extension of service, as follows: for each Customer and each period over which Uptime is calculated, for each day or partial day of downtime within that period in breach of the guaranteed Uptime per Customer, Customer will receive two days of extension of access to the System for which Customer is then subscribed, at no charge. There is no service level agreement for any version of the System that is made available for subscription at no charge. This Section 11.1(c) does not and is not intended to confer any rights or remedies upon any person other than the Customer.
13.2 Dollar Cap. VENDOR'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED ONE QUARTER OF ANY FEES ACTUALLY PAID BY CUSTOMER TO VENDOR HEREUNDER DURING THE PRIOR SIX MONTHS.
13.3 Exclusion of Certain Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
13.4 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 13 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 13, Vendor's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor's liability limits and other rights set forth in this Article 13 apply likewise to Vendor's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
14. Effective Term & Effective Termination.
14.1 Effective Term. The term of this Agreement (the 'Effective Term") shall commence on the Effective Date and continue for one year. Thereafter, the Effective Term will renew for successive equivalent periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
14.2 Access on Default. Customer agrees that it may not use the System if it is in default of its obligations under the Agreement. In addition, Vendor may immediately suspend Customer's password, account, and access to or use of the services (i) if Customer fails to pay Vendor as required under the agreement and does not cure within the first five days of the 15 day cure period, or (ii) if Customer violates any other provision of this Agreement. Vendor may terminate the services hereunder if any of the foregoing is not cured within 15 days after Vendor's initial notice thereof. Any suspension by Vendor of the services under this Section 14.2 shall not excuse Customer from its obligation to make payment(s) under the agreement. At Customer’s request, and for a period of up to 60 days after the termination of the applicable ordering document, Vendor may permit Customer to access the services solely to the extent necessary for Customer to retrieve a file of its data then in the services environment. Customer agrees and acknowledges that Vendor has no obligation to retain Customer data and that such data may be irretrievably deleted after 60 days following the suspension of Customer's access for default.
14.3 Effective Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice, effective in 90 days unless the other party first cures such breach. Without limiting Vendor's other rights and remedies, Vendor may suspend or terminate a Customer's Client's or other User's access to the System at any time, without advanced notice, if Vendor reasonably concludes such Customer's Client or other User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects Vendor to potential liability.
14.4 Effects of Effective Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 4.2 (Restrictions on Software Rights) 9 (IP & Feedback), 10 (Confidential Information), 11.2 (Warranty Disclaimers), 12 (Indemnification), and 13 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
14.5 Effective Termination Without Cause. If Customer terminates this Agreement without cause prior to the end of the Effective Term as outlined in Section 14.1, Customer will pay to Vendor an early termination penalty equal to the remaining months in the Effective Term.
15.1 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, nor may either make commitments on the other's behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer.
15.2 Notices. Vendor may send notices pursuant to this Agreement to Customer's email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to MP Cloud Technologies, Inc., 701 Brazos Street #1616 Austin, Texas 78701.
15.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
15.4 Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor's express written consent. Except to the extent forbidden in this Section 15.4, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
15.5 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
15.6 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
15.7 Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Texas, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Texas.
15.9 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
15.10 Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
15.11 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
15.12 Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
15.15 Security Customer is solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. Customer agrees that Vendor shall not, under any circumstances be held responsible or liable for situations where data or transmissions are accessed by third parties through illegal or illicit means, or where the data or transmissions are accessed through the exploitation of any security gaps, weaknesses or flaws unknown to us at the time.
16. Business Associate Agreement. The provisions of this Section 16 shall apply if and only if the Parties have not executed any separate Business Associate Agreement pursuant to HIPAA.
16.1 Definitions: Terms used but not otherwise defined in this Section 16 have the same meaning as those terms in the Privacy Rule and/or the Security Rule, as applicable.
'Electronic Protected Health Information" or 'EPHI" has the same meaning as the term 'electronic protected health information" in 45 CFR Ã‚Â§ 160.103, limited to the information created or received by Vendor from or on behalf of Customer or its applicable clients.
'Individual" has the same meaning as the term 'individual" in 45 CFR Ã‚Â§ 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR Ã‚Â§ 164.502(g).
'Privacy Rule" means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
'Protected Health Information" has the same meaning as the term 'protected health information" in 45 CFR Ã‚Â§ 160.103, limited to the information created or received by Vendor from or on behalf of Customer or its applicable clients.
'Required By Law" has the same meaning as the term 'required by law" in 45 CFR Ã‚Â§ 160.103.
'Secretary" means the Secretary of the U.S. Department of Health and Human Services or his designee.
'Security Incident" has the same meaning as the term 'security incident" in 45 CFR Ã‚Â§ 164.304.
'Security Rule" means the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR Part 160 and Part 164, Subparts A and C.
16.2 Ownership of Protected Health Information.
Vendor acknowledges that all right, title and interest in and to any Protected Health Information furnished to Vendor vests solely and exclusively with Customer, its applicable clients, or the Individual to whom such Protected Health Information relates.
16.3 Obligations and Activities of Vendor
16.3.1 Vendor agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement, any other written agreement between the parties to this Agreement or as Required By Law.
16.3.2 Vendor agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.
16.3.3 Vendor agrees to implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of EPHI that it creates, receives, maintains or transmits on behalf of Customer or its applicable clients.
16.3.4 Vendor agrees to mitigate, to the extent practical, any harmful effect that is known to Vendor of a use or disclosure of Protected Health Information by Vendor in violation of the requirements of this Agreement.
16.3.5 Vendor agrees to report to Customer any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware.
16.3.6 Vendor agrees to report to Customer any Security Incident of which it becomes aware. At the request of Customer, Vendor shall identify the date of the Security Incident, the scope of the Security Incident, Vendor's response to the Security Incident and the identification of the party responsible for causing the Security Incident, if known.
16.3.7 Vendor agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Vendor on behalf of Customer or its applicable clients, agrees to the same restrictions and conditions that apply through this Agreement to Vendor with respect to such information. Moreover, Vendor agrees to ensure any such agent or subcontractor agrees to implement reasonable and appropriate safeguards to protect the EPHI of Customer and its applicable clients.
16.3.8 Vendor agrees to provide access, at the request of Customer or its applicable clients, to Protected Health Information in a designated record set, to Customer or its applicable clients or, as directed by Customer or its applicable client, to an Individual in order to meet the requirements under 45 CFR Ã‚Â§ 164.524 as may be appropriate where Vendor is the exclusive holder of the designated record set, or part thereof.
16.3.9 Vendor agrees to make any amendment(s) to Protected Health Information in a designated record set that Customer directs or agrees to pursuant to 45 CFR Ã‚Â§ 164.526 at the request of Customer or an Individual, as may be appropriate where Vendor is the exclusive holder of the designated record set, or part thereof.
16.3.10 Vendor agrees to document such disclosure of Protected Health Information and information related to such disclosures as would be required for Customer or its applicable client to respond to a request by an Individual for an accounting of disclosure of Protected Health Information in accordance with 45 CFR Ã‚Â§ 164.528.
16.3.11 Vendor agrees to provide to Customer, within ten (10) business days of written notice by Customer to Vendor that it has received a request for accounting of disclosures of Protected Health Information, information collected to permit Customer or its applicable clients to make the accounting required in accordance with 45 CFR Ã‚Â§ 164.528.
16.3.12 Vendor agrees to honor any restriction to the use or disclosure of Protected Health Information that Customer or its applicable clients have agreed to in accordance with 45 CFR Ã‚Â§ 164.522, to the extent that such restriction may affect Vendor's use or disclosure of Protected Health Information, upon written notice by Customer to Vendor.
16.3.13 Vendor agrees to make internal practices, books, and records, including policies and procedures, relating to the use and disclosure of Protected Health Information received from, or created or received by Vendor on behalf of, Customer or its applicable clients, available to Customer, its applicable clients or the Secretary for purposes of determining Customer's or its applicable clients' compliance with the Privacy Rule.
16.4 General Use and Disclosure Provisions. Except as otherwise limited in this Agreement, Vendor may use Protected Health Information to perform functions, activities, or services for, or on behalf of, Customer, provided that such use or disclosure would not violate the Privacy Rule if done by Customer. Vendor will take all steps to limit the use or disclosure of Protected Health Information to the maximum extent necessary.
16.5 Obligations of Customer
16.5.1 Customer shall notify Vendor of any limitations(s) in its notice of privacy practices of Customer in accordance with 45 CFR Ã‚Â§ 164.520, to the extent that such limitation may affect Vendor's use or disclosure of Protected Health Information.
16.5.2 Customer shall notify Vendor of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that such changes may affect Vendor's use or disclosure of Protected Health Information
16.5.3 Customer shall notify Vendor of any restriction to the use or disclosure of Protected Health Information that Customer has agreed to in accordance with 45 CFR Ã‚Â§ 164.522, to the extent that such restriction may affect Vendor's use or disclosure of Protected Health Information.
16.6 Permissible Requests by Customer. Customer shall not request Vendor to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule or Security Rule if done by Customer.
16.7 Term and Termination
16.7.1 Term. This Section 16 shall survive any termination of this Agreement until such time as when all of the Protected Health Information provided by Customer or its applicable clients to Vendor, or created or received by Vendor on behalf of Customer or its applicable clients, is destroyed or returned to Customer or its applicable clients, or, if it is not feasible to return or destroy Protected Health Information, protections are extended to such information, in accordance with the termination provisions in this Section.
16.7.2 Termination for Cause. Upon Customer’s knowledge of a material breach of this Section 16 by Vendor, Customer shall either:
Provide an opportunity for Vendor to cure the breach or end the violation and terminate this Agreement if Vendor does not cure the breach or end the violation within a reasonable period of time;
Immediately terminate this Agreement if Vendor has breached a material term of this Section 16 and cure is not possible; or
If neither termination nor cure is feasible, Customer shall report the violation to the Secretary.
16.7.3 Effect of Termination. Except as provided in Section 16.7.4 below, upon termination of this Agreement for any reason, Vendor shall return or, with Customer's permission, destroy all Protected Health Information received from Customer or its applicable clients, or created or received by Vendor on behalf of Customer or its applicable clients. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Vendor. Vendor shall not retain copies of the Protected Health Information except in cases of actual and threatened litigation or if required by law.
16.7.4 In the event that Vendor determines that returning or destroying the Protected Health Information is not feasible, Vendor shall provide to Customer notification of the conditions that make return or destruction not feasible. Upon determination that return or destruction of Protected Health Information is not feasible, Vendor shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the return or destruction not feasible, for so long as Vendor maintains such Protected Health Information.
16.8 Regulatory References. A reference in this Section 16 to a section in the Privacy Rule or Security Rule means the section as in effect or as amended.