The parties agree as follows:
1.1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.
1.2. “Action” has the meaning set forth in Section 10.2.
1.3. “Affiliate” means any person or entity controlling, controlled by or under common control with a party.
1.4. “Agreement” has the meaning set forth in the preamble.
1.5. “Authorized Location” (if applicable) means each office location or other physical address identified by Customer during enrollment from which Authorized Users may use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement. For the avoidance of doubt, Customer may need to purchase additional Services for each state in which Customer has Authorized Locations.
1.6. “Authorized Administrative User” (if applicable) means each of the individual employees of Customer authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.
1.7. “Authorized User” means each of the: (i) Authorized Administrative Users; and (ii) End Users, who have been authorized to use the Services by Customer pursuant to this Agreement.
1.8. “Authorized Territory” (if applicable) means each state or other geographic territorial region in which Authorized Users may use the Services to sell or provide price quotes for insurance products pursuant to this Agreement.
1.9. “Backup Policy” has the meaning set forth in Section 4.1.
1.10. “Confidential Information” has the meaning set forth in Section 7.1.
1.11. “Customer” means the legal entity that executes an Order Document or uses the Services.
1.12. “Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.
1.13. “Customer Systems” means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
1.14. “Disclosing Party” has the meaning set forth in Section 7.1.
1.15. “Documentation” means the manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.16. “Effective Date” means the earlier of the date the Sales Order is fully executed or the first date Customer or its Authorized Users or End Users access FormFire software or services.
1.17. “End User” means each of the individuals to whom Customer provides access to the Services and authorizes to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement, including each employee of Customer’s customers and prospective customers, to input information associated with themselves for the purpose of seeking insurance or other products or services that may be bid or sold through the Services.
1.18. “Fees” has the meaning set forth in Section 5.1.
1.19. “Force Majeure Event” has the meaning set forth in Section 12.
1.20. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Disabling Device.
1.21. “Improvements” means any changes, revisions, modifications, developments, feedback, recommendations, or enhancements to the Services that are developed, made or created by either party, whether or not patentable.
1.22. “Initial Term” has the meaning set forth in the Sales Order.
1.23. “Intellectual Property Rights” means: (a) any U.S. or foreign copyrights, trademarks, patents and pending patent applications, any U.S. or foreign patent issuing on any pending patent application, and any continuations, divisions, continuations-in-part, reissues, extensions, and reexaminations thereof, (b) any future patents and pending patent applications directed to Improvements and any continuations, divisions, continuations-in-part, reissues, and reexaminations thereof, and any future inventions, discoveries, or creations by Provider, and any future patent or patent applications directed to the same, as well as any continuations, continuations-in-part, reissues, reexaminations, foreign applications, foreign patents or Improvements thereof, (c) all information, knowledge, expertise and trade secrets of Provider, (d) all works of authorship and other tangible expressions of the Services, whether copyrighted or copyrightable, including technical drawings, advertising and marketing materials, recordings, brochures, instructions and other documentation, and (e) all Improvements to, derivatives of, and worldwide intellectual property or proprietary rights in and to the Services.
1.24. “Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof.
1.25. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.26. "Order Document” means a Sales Order or other document used to purchase Services from FormFire.
1.27. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
1.28. “Personal Information” has the meaning set forth in Section 4.2.
1.30. “Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
1.31. “Protected Health Information” or “PHI” means any and all information defined as protected health information under the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and their accompanying regulations as promulgated from time to time and at 45 C.F.R. § 164.501.
1.32. “Provider” has the meaning set forth in the preamble.
1.33. “Provider Group” has the meaning set forth in Section 13.1.
1.34. “Provider Indemnitee” has the meaning set forth in Section 12.
1.35. “Provider Materials” means the software used to provide the Services, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
1.36. “Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider.
1.37. “Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
1.38. “Receiving Party” has the meaning set forth in Section 7.1.
1.39. “Renewal Term” has the meaning set forth in the Sales Order.
1.40. “Representatives” means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors.
1.41. “Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such the data does not identify Customer or any individual or End User and cannot be reverse engineered or otherwise Processed in a manner that enables the identification of Customer or any individual End User.
1.42. “Sales Order” means FormFire’s sales order form that describes the Services and support plans ordered by the Customer and the fees and other specified terms.
1.43. “Scheduled Downtime” has the meaning set forth in Section 2.1.
1.44. “Services” has the meaning set forth in Section 2.1.
1.45. “Support Services” has the meaning set forth in Section 2.5.
1.46. “Term” means, collectively, the Initial Term and all Renewal Terms.
1.47. “Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider, including, without limitation, pricing information provided by insurance carriers.
1.48. “User Terms” has the meaning set forth in Section 3.1.
2.1. Services. Subject to Customer's and its Authorized Users' compliance with this Agreement, during the Term, Provider shall provide to Customer and its Authorized Users access to and use of the services described on the applicable Sales Order (collectively, the “Services”) materially in accordance with the Documentation and the Service Level Agreement at http://www.formfire.com/service-level-agreement and incorporated herein (the “Service Level Agreement”), except for during:
2.1.1. Scheduled Downtime; or
2.1.2. a Force Majeure Event; or
2.1.3. any suspension or termination of Customer's or any Authorized Users' access to or use of the Services as permitted by this Agreement.
2.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
2.2.1. Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) selection, deployment, modification and replacement of the software used to the provide the Services; and (iii) performance of the Support Services including maintenance, upgrades, corrections and repairs; and
2.2.2. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
2.3. Changes. Provider may upgrade, update and otherwise modify the Services from time to time, provided that such changes do not materially: (a) diminish the quality or level of the Services or SLA’s specified hereunder; (b) change or remove any functionality or other business requirements contained in the Order Document unless Customer has first consented in writing to such changes; or (c) result in the imposition of additional obligations on Customer or its Authorized Users, including payment of additional Fees (subject to the provisions contained in Section 7).
2.4. Service Support. The Services include customer maintenance, technical support and training services (“Support Services”) as set forth on the Service Level Agreement. Provider may amend the scope of Support Services from time to time in its reasonable discretion and may charge additional fees for Support Services related to such amendments.
3. Authorization and Customer Restrictions.
3.1. Authorization. Subject to Customer's payment of the Fees set forth on the applicable Order Document and compliance with the terms and conditions of this Agreement, Provider will: (i) authorize Authorized Administrative Users to access the Services from the Authorized Location and use the Services on a non-transferable, non-exclusive basis to conduct business within the Authorized Territory, if any; and (ii) authorize End Users to access the Services within the Authorized Territory, if any, for the purpose of inputting information into the Services in connection with the quoting and/or sale of insurance and/or other products or services that may be bid or sold through the Services, by using an online authorization process established by Provider.
3.2. User Terms. It is a condition precedent to the access to and use of Services that each Authorized User shall accept Provider’s updated Authorized User Terms (“User Terms”) set forth at https://www.formfire.com/terms-of-service/, as updated from time to time by Provider.
3.3. Authorized Administrative Users. Authorized Administrative Users shall access the Services and such Provider Materials as Provider may make available to Customer solely from the Authorized Location and use the Services and Provider Materials to provide cost quotes for insurance products and otherwise conduct business with Customer’s customers and prospects located within the Authorized Territory during the Term.
3.4. End Users. End Users are permitted to access and use the Services and such Provider Materials as Provider may supply or make available to Customer within the Authorized Territory during the Term.
3.5. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not:
3.5.1. copy, modify or create derivative works or Improvements of the Services, the Documentation and/or the Provider Materials;
3.5.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
3.5.3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
3.5.4. bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
3.5.5. input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are inaccurate or unlawful or injurious, or contain, transmit or activate any Harmful Code, or make any misrepresentations in connection with the use of the Services;
3.5.6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider's provision of services to any third party, in whole or in part;
3.5.7. remove, delete, alter or obscure any copyright, trademark, patent or other Intellectual Property Rights notices from any Services or Provider Materials, including any copy thereof;
3.5.8. access or use the Services or Provider Materials in a fraudulent manner or in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;
3.5.9. access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product;
3.5.10. otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.
3.6. Customer Obligations.
3.6.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Documentation, all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer's Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and the Documentation; and (c) provide all cooperation and assistance reasonably requested by Provider to enable Provider to exercise its rights and perform its obligations in connection with this Agreement. In addition, Customer shall be responsible for obtaining, maintaining during the Term, and paying all costs related to Third-Party Materials identified by Provider in writing.
3.6.2. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.5, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
4. Data Backup; Security.
4.1. Data Backup. The Provider Systems are programmed to perform routine data backups as set out in Provider's backup policy in effect from time to time (the “Backup Policy”). In the event it becomes necessary, Provider will utilize the data backup to restore the Customer Data associated with the Services to the last available backup in accordance with the Backup Policy.
4.3. Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider's Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).
4.4. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) the implementation and on-going maintenance of the Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or Customer’s or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
4.5. Access and Security. Customer shall employ and maintain reasonable physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
5. Fees; Payment Terms.
5.1. Fees. Customer shall pay Provider the fees for the Services selected by Customer as set forth on Provider’s website or on the applicable Sales Order (the “Fees”) in accordance with this Section 5.
5.2. Fee Increases. Provider may increase the Fees at any time in its sole discretion by updating the pricing information available on Provider’s website, or by giving written notice to Customer. Any such increases shall be effective as to Customer upon the commencement of the next Renewal Term.
5.3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's net income. The preceding notwithstanding, Provider shall collect all such taxes from Customer and transmit to the proper authorities all taxes which Provider is required by law to collect from Customer in connection with this Agreement or the transactions contemplated by this Agreement.
5.4. Payment. Customer shall pay all Fees within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by credit card, or ACH. Customer shall make payments to the address or account specified by Provider in writing from time to time.
5.5. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Provider may charge a late fee on the past due amount at the rate of the lesser of (i) 1.5% per month calculated daily and compounded monthly or (ii) the highest rate permitted under applicable Law.
5.6. No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
5.7.1. Audit Procedure. Provider or its nominee (including its accountants and auditors) may, in Provider's reasonable discretion, inspect and audit Customer's use of the Services under this Agreement at any time during the Term. All audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer's business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Provider with respect to such audit. Provider shall only examine information directly related to Customer's use of the Service.
5.7.2. Cost and Results of Audit. If the audit determines that Customer’s use of the Services exceeds the usage permitted by this Agreement or otherwise violated the terms of this Agreement, Customer shall pay to Provider all amounts due for such excess use of the Software, plus all reasonable costs incurred by Provider in conducting the audit. Provider reserves the right to disclose the results of the audits to third parties, including insurance providers and Provider’s other business partners, if reasonably necessary, to protect or enforce Provider’s rights or interests or in connection with the administration, management or facilitation of one of Provider’s business relationships.
6. Intellectual Property Rights.
6.1. Services, Documentation and Provider Materials. All right, title and interest in and to the Services, the Documentation and the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and its licensors. Customer has no right, license or authorization to use the Services, the Documentation and the Provider Materials except as expressly set forth in this Agreement. Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
6.2. Customer Data. As between Customer and Provider, and as permitted by Law, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 6.3, and to the extent such data is not defined as PHI, in which case such data remains the sole property of the individual providing the data. Notwithstanding anything to the contrary herein and for the avoidance of doubt, as permitted by applicable law, all PHI, Personal Information and other information directly associated with an End User remains the sole property of the End User and Provider reserves the right to retain such information in connection with the provisions of services to such End User, whether or not such services are provided to End User by or through Customer.
6.3. Consent to Use Customer Data, PHI and Personal Information. As permitted by Law, Customer and its Authorized Users hereby irrevocably grant all such rights and permissions in or relating to Customer Data, PHI and Personal Information: (a) to Provider and the Provider Personnel as are necessary to perform the Services; (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder; and (c) to Provider for purposes of risk profiling and improving and marketing products and services; and (d) to Provider for Provider’s other business purposes, provided that such Customer Data, PHI, and Personal Information is aggregated and de-identified in accordance with Laws.
7.1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means “Confidential Information” means all non-public information, technical data, or know-how, including, but not limited to, that which relates to information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including without limitation, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, research, product plans, products, services, customers, markets, software, software code, software documentation, developments, inventions, lists, processes, designs, drawings, engineering, hardware configuration information, business, marketing or finances, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case which is designated in writing to be confidential or proprietary or is information that should reasonably be understood to be confidential under the circumstances. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider, and the financial terms and existence of this Agreement are the Confidential Information of each of the parties.
7.2. Exclusions. Confidential Information does not include information that: (a) was known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, to Receiving Party’s reasonable knowledge, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
7.3.1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
7.3.2. except as may be permitted by and subject to its compliance with Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3;
7.3.3. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
7.3.4. ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 7.
7.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by Law to disclose any Confidential Information then, to the extent permitted by Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
7.5. Use of PHI. If, in the course of performing the Services hereunder, Provider obtains PHI, then Provider shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Provider on behalf of, Customer available to the Secretary of Health and Human Services or any other officer or employee of the Department of Health and Human Services to whom authority has been delegated for purposes of determining Customer’s and Provider’s compliance with HIPAA. A disclosure of an individual’s or beneficiary’s PHI to that individual or beneficiary and upon that individual or beneficiary’s request is considered a permitted disclosure for purposes of this section.
7.6. Feedback. Notwithstanding anything to the contrary contained in this Agreement, if Customer provides any ideas, suggestions, or recommendations to Provider regarding Provider’s products, services, of Provider’s Confidential Information (“Feedback”), Customer hereby agrees that Provider shall own all Feedback, and Customer hereby assigns to Provider all of Customer’s right, title, and interest (including all Intellectual Property Rights) therein and thereto. Customer represents and warrants that it shall not provide any Feedback that Customer knows or has reason to believe is subject to any third-party intellectual property rights.
8. Term and Termination; Suspension.
8.1. Term. The term of this Agreement shall commence as of the effective date of the initial Sales Order (the “Effective Date”) and, subject to earlier termination in accordance with the provisions of this Agreement, shall continue for a period of three (3) years from the Effective Date unless sooner terminated pursuant to this Section; provided, however, that if an Order Document is in effect at such time as this Agreement expires, then the term of this Agreement shall be extended until the expiration of such Order Document. Notwithstanding the foregoing, during such extension period, no additional Order Documents shall be entered into by and between the parties. Each Order Document executed pursuant to this Agreement shall specify the term of such Order Document.
8.2. Suspension. Provider may suspend Customer's or any Authorized User's access to or use of all or any part of the Services if: (a) Customer has undisputed amounts more than 10 days past due; (b) Provider reasonably determines that Customer or its Authorized Users are in breach of the terms of this Agreement; or (c) Provider reasonably determines that Customer or its Authorized Users are using the Services in a way that creates a security vulnerability, may disrupt use of the Services by other Provider customers, or have misappropriated or infringed Provider’s or another third-party’s intellectual property or proprietary rights. Provider will only suspend access to the extent, and for the duration, necessary to address the violation and will promptly restore access once the issue has been resolved. Provider will not suspend access if Customer is (reasonably and in good faith) disputing a charge and cooperating in resolving the dispute. Customer acknowledges and agrees that if Provider disables access to its account, Customer may be prevented from accessing the Services or other Customer Data contained in such account.
8.3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
8.4. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
8.4.1. Provider will terminate all further access to the Services by Customer and all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
8.4.2. Subject to sub-clause (d) below, Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information, provided, however, that, for the sake of clarity, Provider's obligations under this Section 8.4.2 do not apply to any Resultant Data. Notwithstanding anything to the contrary herein, all PHI, Personal Information and other information directly associated with an End User remains the sole property of the End User and Provider reserves the right to retain such information in connection with the provisions of services to such End User, whether or not such services are provided to End User by or through Customer;
8.4.3. Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly destroy all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider's Confidential Information; and (ii) permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls;
8.4.4. Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; (ii) Provider may retain Customer Data; (iii) Customer may retain Provider Materials, in the case of each of sub-clause (i), (ii) and (iii) in its then current state and solely to the extent allowed and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 8.4.4 will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
8.4.5. if Provider terminates this Agreement for any reason, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but unpaid Fees, immediately on receipt of Provider's invoice therefor.
8.5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.5 , Section 5, Section 6, Section 7, this Section 8.5, Section 10, Section 11, Section 12, and Section 13.
9. Representations and Warranties.
9.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
9.1.1. it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
9.1.2. it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
9.1.3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
9.1.4. when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2. Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that:
9.2.1. Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement;
9.2.2. The Services will be performed in substantial conformance to the Documentation; and
9.2.3. Provider, in performing its obligations under this Agreement, will comply with Laws with regard to PHI, including, but not limited, to HIPAA and HITECH, with regard to information uploaded or entered into the Services by Customer or any Authorized Users (including by entering into Business Associate Agreements (“BAAs”) or similar subcontractor arrangements as required by HIPAA).
9.3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that:
9.3.1. Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable Law; and
9.3.2. Customer is in compliance with applicable laws and regulations with regard to all PHI, including HIPAA and HITECH, with regard to information uploaded or entered into the Services by Customer or any Authorized Users. Customer shall enter into a BAA with any customers of Customer to the extent necessary to assure the protection of PHI as required by HIPAA, HITECH, and any applicable BAA in effect. Customer will enter into a BAA with Provider, in a mutually acceptable form, as required by applicable law.
9.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE DOCUMENTATION OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
10.1. By Provider. Provider shall defend Customer and its officers, directors, employees and agents (collectively, the “Customer Indemnified Parties”) against any Losses arising out of or resulting from a third party claim that any or all of the Services, the Documentation or any other Provider Materials provided by Provider to Customer infringe any Intellectual Property Rights of third party and shall indemnify and hold the Customer Indemnified Parties harmless from and against any finally adjudicated or settled Losses. In the event of such a claim against a Customer Indemnified Party, or if Provider reasonably believes that any part of the Services, the Documentation or any other Provider Materials may infringe or misappropriate the intellectual property rights of a third party, Provider will in its discretion and at no cost to Customer (a) modify the affected Services, the Documentation or any other Provider Materials (without materially impairing its functionality) so that it no longer infringes or misappropriates, (b) obtain a license for Customer’s continued use of the affected Services, the Documentation or any other Provider Materials in accordance with this Agreement, or (c) terminate the subscriptions for any affected Services upon 30 days’ prior written notice and refund any prepaid Fees covering the remainder of the applicable Term.
10.2. By Customer. Customer shall indemnify, defend and hold harmless Provider, its Representatives and their respective Affiliates, and its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement, including any unauthorized use of the Service by Customer or any Authorized User; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
10.3. Indemnification Process. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any claim subject to this Section 10 and reasonably cooperate with the indemnifying party at the indemnifying party's cost and expense. The indemnifying party shall promptly take control of the defense and investigation of such claim at its sole cost and expense. The indemnifying party shall not settle any claim in a manner that adversely affects the rights of the indemnified party without the indemnified party's prior written consent, such consent not to be unreasonably withheld. The indemnified party may employ its own counsel to represent it or otherwise participate in and observe the proceedings at its own cost and expense. The indemnified party's failure to perform any obligations under this Section shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure.
11. Limitations of Liability.
11.1. EXCLUSION OF DAMAGES. NEITHER PROVIDER NOR ITS AFFILIATES, OR ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE “PROVIDER GROUP”) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, DATA, RECORDS OR INFORMATION; LOST PROFITS AND ANY FAILURE OF DELIVERY OF THE SERVICES), REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2. CAP ON MONETARY LIABILITY. THE CUMULATIVE AGGREGATE LIABILITY OF THE PROVIDER GROUP OR ANY MEMBER THEREOF ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE ACTUAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO PROVIDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE CLAIM.
11.3. SECTIONS 11.1 AND 11.2 SHALL APPLY NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE AND REGARDLESS OF WHETHER LOSSES ARISE IN CONTRACT, TORT OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any of their duties or obligations under this Agreement (excluding Customer’s payment obligations), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
13.1. Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
13.2. Independent Contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
13.3. Publicity. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party; provided, however, that Provider may, without Customer's consent, include Customer's name in its lists of current or former customers in promotional and marketing materials.
13.4. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13.4):
If to Customer, to the contact mailing address provided by Customer.
If to Provider:
1100 Superior Ave, Suite 1650
Cleveland, OH 44114
Attention: Legal Department
Notices sent in accordance with this Section 13.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
13.5. Interpretation. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting the agreement. Consents shall not be unreasonably withheld, delayed or denied unless expressly set forth in this Agreement.
13.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.7. Entire Agreement. This Agreement, together with its Schedules and Exhibits, constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict or inconsistency between the terms of this Agreement, and Schedules or Exhibits, , the terms of this Agreement shall control unless the applicable Schedule or Exhibit expressly states otherwise with respect to a particular term.
13.8. Assignment. Neither party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other party’s prior written consent.; provided, however, consent shall not be necessary in the event of an assignment in connection with a merger or the acquisition of all or substantially all of a party’s assets by a third party, provided that the third party undertakes the assigning party's entire rights and obligations under this Agreement. . Any purported assignment, delegation or transfer in violation of this Section 13.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
13.9. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
13.10. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13.11. Severability. If any provision of this Agreement is invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement. The parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties with a comparable replacement provision .
13.12. Governing Law. This Agreement is subject to laws of the State of Ohio without giving effect to its choice or conflict of law provisions.
13.13. Equitable Relief. Notwithstanding anything to the contrary in this Agreement, each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or, in the case of Customer, Section 3.5, may cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are in addition to all other remedies that may be available at law, in equity or otherwise.