A. The Company provides various digital services (the “services”) and offers these services to businesses and establishments.
B. The Client whose name appears on the Insertion Order wishes to purchase from the Company certain products and services as provided in the Insertion Order and the Company has agreed to provide the services in accordance with the provisions of this Agreement and the Insertion Order.
C. By executing this Agreement, the Company and the Client are entering into the Agreement and the Insertion Order and incorporated into the Agreement by reference on the effective date of the Insertion Order.
NOW, THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to the following:
1. THE SERVICE
Upon the execution of this Agreement, the Company shall commence the service or products requested by the Client. It is understood that the services shall be provided in accordance with the provisions of the Insertion Order.
The Insertion Order constitutes an integral part of this Agreement and in the event of any conflict of terms between this MSA and the Insertion Order, the terms of this MSA shall prevail.
It is understood that the Statement of work contained in the Insertion Order may be modified to suit the Client’s need from time to time. Such modifications shall be made in writing and executed by both parties.
By receiving contained in this Agreement and the Exhibits attached hereto, the Client warrants that it has the authority to enter into this Agreement and has acquired all licenses, permits needed to carry out its business activities.
By executing this Agreement, the Client understands that payment for any purchase, service or subscription made under this Agreement shall be billed to the Client in accordance with the provisions of the Insertion Order.
The Client understands that modifications or changes to the Client’s order may attract extra fees which shall be billed at the Company’s standard rate.
The Client understands that payment for each service shall be made in advance for the service term as identified in the Insertion Order. THE CLIENT UNDERSTANDS AND AGREES THAT ANY AND ALL FEES PAID UNDER THIS AGREEMENT ARE FINAL AND NON-REFUNDABLE. If paid with a credit card, the Client agrees not to seek or authorize a chargeback to the Company for any fees paid under this Agreement.
a. Effectiveness: These Terms and the Exhibit shall become effective on the Effective Date, and shall continue in effect until the Term End defined in the Insertion Order. Unless terminated by the process defined in Paragraph 3.b.i of this Agreement, the Term shall be renewed automatically for a successive period as originally defined in the Insertion Order.
i. Termination by Client. In the event the Client wishes to terminate this Agreement, it shall be required to provide the Company written notice no less than seven (7) days prior to the Term End defined in the Insertion Order.
ii. Termination by Company. Company may terminate these Terms or the Exhibit at any time and without notice if Client breaches or is in default of any of these Terms, the Exhibit, or any other agreement with Company, or is in violation of any applicable laws, or for Company’s convenience.
iii. Effect of Termination. Upon termination for any reason: (a) Company shall have the right to terminate, disable or restrict access to, or use of, the services and all rights or licenses granted under this Agreement; and (b) Client shall pay all amount owed to the Company upon termination, including all out of pocket expenses already incurred by the Company on behalf of the Client.
4. RIGHTS GRANTED
a. Use Rights. During the term and subject to the terms of this Agreement, Company hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right to permit Client’s Users to use and enjoy the services provided under this Agreement. Said use rights are non-transferable, except in the event of a voluntary transfer of substantially all assets by Client to a transferee which executes Company’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights not expressly granted herein are reserved to Company.
b. License and Use Restrictions. Client shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile any software, platform access, or any proprietary information disclosed under this Agreement; (ii) modify, create derivative works based upon, or translate software, platform access, or any proprietary information disclosed under this Agreement; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the services in any form to any other party, nor shall Client attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder; (iv) engage in data extraction or data-mining; (v) use the services or any software or access codes, other than as instructed by the Company. The Client acknowledges and agrees that Company shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) to any access and proprietary information and any suggestions, enhancement requests, feedback, recommendations or other information provided by Client or any of Client’s Users relating to the Software. A violation of any provision contained herein shall result in the immediate termination of this Agreement.
c. Client Data. The Client shall be able to access its data through a content management system (“dashboard”) provided by the Company. The Client owns all right, title and interest in the Client Data. Client hereby grants to Company, a non-exclusive, non-transferable non-sublicensable right and license to use, copy, transmit, modify and display the Client Data solely for purposes of effectively providing the services to the Client. By providing contents to the Company, the Client warrants that:
i. The client is the sole owner of the Client Content and/or has the legal right to use the content;
ii. The client has not received any oral, written, or electronic notice from any Person that any of the Client Content is alleged to infringe on the rights of such Person;
iii. The client is not aware of any basis to believe that any of the Client Content infringes on the rights of any person;
iv. Client Content does not violate any applicable law or regulation;
v. It will not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Content Management System available to any person other than an employee or Permitted Contractor of Client;
vi. use or access the Content Management System with the intent to build a product or service that is competitive with any product or service provided by the Company to Client or to any Person or copy the ideas, features, functions, or graphics of any product or service that the Company provides to Client or to any other Person
The Client shall be responsible for securing and ensuring the privacy (of information which the Client is required to keep in confidence) of the contents provided under this Agreement. The Company shall not be liable for anything that may arise in connection with contents provided in connection with the service contemplated in this MSA or Exhibit.
In the event Client receives a notice that content on the Client’s infringes on trademark, trade secret, rights of privacy, rights of publicity, or any other proprietary right of a third party, Client shall promptly notify Company of such notice, so that the Company can verify such claims and take necessary action.
d. Hardware; Operating Systems. The Client is solely responsible for acquiring, installing, and operating any Equipment in conjunction with Client’s operating systems necessary for the Client to access online platforms as may be provided by the Company for the service.
5. SERVICE LEVEL AND DISCLAIMERS
a. Service Level Commitments; Company guarantees that all Services provided through platforms made available by the Company will be accessible to the Client and its authorized Users greater than 95% of the time in any given calendar month, excluding Maintenance Windows. Company does not guarantee network availability between Client and the Company third party hosting servers, as such availability can involve numerous third parties and is beyond the control of the Company. Company will not be liable for nor provide any service credits hereunder for any downtime caused in whole or part by a third party data center provider nor for any downtime that Client experiences as a result of Client or Client’s Users’ own network connectivity issues. If Client experiences a Service outage and is unable to access the Software or any Service, Client must immediately contact Company’s Customer support, providing any/all necessary information that may assist Company in determining the cause of the outage.
b. Disclaimer of Warranties. EXCEPT FOR THE LIMITED SERVICE LEVEL COMMITMENTS SET FORTH IN SECTION 5(a), COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH IN THE LIMITED SERVICE LEVEL COMMITMENTS IN SECTION 5(A), COMPANY DISCLAIMS ANY WARRANTY THAT THE SERVICES PROVIDED BY COMPANY, OR THE OPERATION OF ANY SOFTWARE OR ACCESS GRANTED HEREUNDER ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
6. CONFIDENTIAL INFORMATION
a. Proprietary Rights: Company retains title in, and is the sole and exclusive owner of its own proprietary and Confidential Information. Company has, and at all times shall have, the right to use all of the Confidential Information. Client shall not, by virtue of these Terms or otherwise, acquire any proprietary rights whatsoever in the Company’s Confidential Information. Any right not expressly granted to Client by these Terms is hereby expressly reserved by Company.
b. Duties of Confidentiality: Client shall secure and protect the Confidential Information in a manner consistent with the maintenance of the Company’s rights therein. Client shall permit access to the Confidential Information and the Service, and use of the Service, exclusively on a need to know basis and only to those of its employees or Permitted Contractors who require such access or use solely for the Permitted Purpose. Client shall instruct and/or enter into written agreements with the employees and Permitted Contractors of Client who are permitted such access or use in order to satisfy Client’s obligations hereunder. Client shall cooperate with and assist Company in identifying and preventing any unauthorized use, copying, or disclosure of the Confidential Information. Without limitation of the foregoing, Client shall advise Company immediately in the event Client learns or has reason to believe that any person has violated or intends to violate the confidentiality of the Confidential Information or the proprietary rights of Company, and Client shall, at Client’s sole expense, cooperate with Company in seeking injunctive or other equitable relief in the name of, at Company’s sole discretion, either Client or Company, against any such Person. Client agrees to maintain (and to cause the employees and Permitted Contractors of Client to maintain) the confidentiality of the Confidential Information using not less than the same degree of care that Client uses to maintain the confidentiality of Client’s own most confidential information and Protected Health Information and according to best practices in healthcare. Client acknowledges that the Confidential Information constitutes and embodies trade secrets which are the unique, sole, and exclusive property of the Company. Client shall not disclose, sell, transfer, pledge, sublicense, publish, display or otherwise make accessible or available the Confidential Information in any manner, in whole or in part to any person other than its employees or Permitted Contractors. Client acknowledges that the disclosure of any aspect of the Confidential Information, or any other confidential or proprietary information referred to in these Terms, or any information which at law or equity ought to remain confidential, shall immediately give rise to continuing and irreparable injury to Company that is inadequately compensable in damages at law. Company shall be entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings (without the posting of any bond), in addition to any other legal remedies that may be available. Client hereby consents to the obtaining of such injunctive relief.
7. LIMITATION OF LIABILITY
Company’s maximum liability to Client and to any of its Affiliates for all causes and claims whatsoever, whether arising under these Terms, the Exhibit, or otherwise, shall be limited to an amount equal to the service fees that have been paid by Client to Company under these Terms during the one-month period immediately preceding the action or omission giving rise to the alleged liability.
IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR TO ANY OTHER PARTY (INCLUDING WITHOUT LIMITATION, THE PRESENT, FORMER, AND FUTURE SHAREHOLDERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, AGENTS AND AFFILIATES OF CLIENT, AND THE AFFILIATES OF ANY OF THE FOREGOING PERSONS, FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, OR OTHERWISE. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE SERVICE FEES WERE DETERMINED BASED UPON THE FOREGOING LIMITATION OF LIABILITY.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE.
BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS SET FORTH IN THESE TERMS ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS.
COMPANY SHALL HAVE NO LIABILITY TO THE CLIENT OR TO ANY OTHER PARTY INCLUDING WITHOUT LIMITATION THE PRESENT, FORMER, AND FUTURE SHAREHOLDERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, PARTNERS, AGENTS, AND AFFILIATES OF CLIENT, AND THE AFFILIATES OF ANY OF THE FOREGOING PERSONS, WITH RESPECT TO ITS OBLIGATIONS UNDER THESE TERMS OR OTHERWISE IF, AT THE TIME OF THE ACT OR OMISSION GIVING RISE TO SUCH ALLEGED LIABILITY, CLIENT WAS IN DEFAULT, OR HAD FAILED TO PERFORM FULLY, ANY OF ITS OBLIGATIONS UNDER THESE TERMS, THE EXHIBIT, OR ANY OTHER AGREEMENT WITH Company, OR WAS IN VIOLATION OF ANY APPLICABLE LAWS.
To the maximum extent permitted by applicable Laws, Client and its present, former, and future shareholders, directors, officers, members, managers, employees, agents, and Affiliates (and the present, former, and future shareholders, directors, officers, members, managers, partners, employees, agents, and Affiliates of any of the foregoing Persons) (collectively, the Indemnitors) shall, at their own expense, jointly and severally indemnify and promptly reimburse Company for the defense of, and hold harmless Company and Company’s members, managers, officers, employees, agents, attorneys, and Affiliates (and the present, former and future shareholders, directors, members, managers, officers, employees, agents, attorneys, and Affiliates of any of the foregoing Persons) from and against any and all claims, actions, liabilities, losses, damages (including without limitation consequential and punitive damages and loss of profits and anticipated profits), judgments, amounts paid in settlement, liens, charges, fines, costs and expenses (including the fees and expenses of attorneys, accountants, experts, and other professionals) resulting from, arising out of, or pertaining to (i) the use or operation of, or access to, the Confidential Information, the Service, software access, or by any customer of the Client; (ii) a claim by any Person that the Client’s service, violates or infringes on the rights of such Person; (iii) any actions or omissions of any Indemnitor; (iv) the breach of any provision of these Terms by Client; (v) the falsity or inaccuracy, at any time during the Term, of any representation made by Client in these Terms; (vi) any claims, proceedings, or lawsuits brought by or on behalf of the United States (including, without limitation, the Department of Health and Human Services), any state, local, provincial, or other government or quasi-governmental agency, bureau, tribunal, or jurisdictional body; (vii) the use, storage, or disclosure of Protected Health Information, Identity Information, Images, or Client Content; (viii) any breach by Client of the Exhibit; (ix) any breach by Client of any other agreement with the Company; or (x) any violation or claimed violation of Laws by any of the Indemnitors.
9. NO UNLAWFUL ACTIVITIES
Company does not routinely monitor the Client’s use of, or access to, the Service, software, platforms, proprietary login credentials (the “Service”), or any violation by Client of these Terms, the Exhibit, or applicable Laws, and Company undertakes no responsibility to do so. If Company becomes aware that Client’s use of, or access to, the service may violate these Terms, the Exhibit, or applicable Laws, or maybe inappropriate (as Company determines in its sole discretion), Company may take any responsive actions it deems appropriate, without giving notice to Client. Such actions may include, but shall not be limited to, temporary or permanent removal of Client Content, Protected Health Information, Identity Information, and Images and the immediate suspension or termination of access to and use of the Service, access codes, or equipment. Company shall not have any liability to Client or to any other party for having taken any such responsive actions. The foregoing actions are not Company’s exclusive remedies for Client’s breach of these Terms, the Exhibit, or applicable Laws, and Company may take any other legal or technological action that it (in its sole discretion) deems to be appropriate. Company reserves the right to investigate suspected violations of these Terms, including the gathering of information from the user or users involved and the complaining party, if any, and examination of the Client’s use of the service. During an investigation, Company may suspend access to the Service and/or remove material which may (in Company’s determination) violate these Terms, the Exhibit, or applicable Laws, without giving notice to Client. Client hereby authorizes Company to cooperate with law enforcement authorities in the investigation of suspected criminal violations, and system administrators at other internet service providers or other network or computing facilities in order to enforce these Terms and the Exhibit. Such cooperation may include Company providing the username, IP address, or other identifying information about Client and any of its employees and Permitted Contractors, and any customer or affiliate of the Client.
10. GENERAL PROVISIONS
a. Notices. Notices regarding this Agreement to the Company shall be in writing and sent by first-class mail or overnight courier at the address provided by the Company. The Company may give notice by means of posting notice on the System, by electronic mail to Client’s e-mail address on record with the Company, or by written communication sent by first-class mail or overnight courier to Client’s address on record in the Company’s account information. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after either sending by e-mail or posting on the System.
b. Force Majeure. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
c. Governing Law; Venue. The laws of the State of Delaware (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Delaware, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Delaware; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
d. Entire Agreement. This Agreement and the Exhibit attached constitute the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
e. Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.[/vc_column_text]