Company is a telehealth service provider that allows access to certain medical services (“Applications”) through its CareClix® telemedicine software to authorized end users. Customer wishes to make the CareClix® telemedicine software and related Applications (collectively the “Services”) available to its defined employees, members or other affiliates of Customer as designated by Customer from time to time hereafter (“Authorized Users”), and Company desires to make the Services available to Customer’s Authorized Users, subject to the following terms and conditions. The specific Services subject to this Agreement shall be as set forth in Schedule 1 executed by Customer with this Agreement and incorporated herein.
2.1 Services. Subject to Customer’s payment of the fees set forth in Schedule 1, Company will provide designated Authorized Users with the necessary access protocols to access the Services through Internet connections and equipment provided by Customer or an Authorized User.
2.3 Documentation. Customer and Authorized Users shall be provided by the Company with documentation on the use, services, requirements and operating instructions for the Services.
“Documentation” means the technical materials provided by Company to Customer and to Authorized Users in hard copy or electronic form describing the use and operation of the Software
2.2 Hosting. Company shall provide for the hosting of the CareClix® software and related Applications, as selected by Customer in Schedule ‘1’, accessible by an Authorized User as part of the Services, provided that nothing herein shall be construed to require Company to provide for, or bear any responsibility with respect to, any telecommunications or computer or network hardware, required by Customer or any Authorized User to provide access from the Internet to the Services.
2.3 HIPAA Compliance Company is not a medical provider; however, Company represents to Customer that the Services will be provided in compliance with the Health Insurance Portability and Accountability Act of 1996 as amended (
“HIPAA”) as of the Effective Date. If new requirements are promulgated under HIPAA that are applicable to the Services, then Company shall update the Services accordingly.
2.4 No Fee Sharing. Payment of the Fees under this Agreement is not intended to be a fee for healthcare services, and shall not be interpreted or applied as, permitting Company to share in any fees for healthcare services, but it is acknowledged as the Parties’ negotiated agreement as to the reasonable value of the Company’s Services, as well as other items and support furnished by Company pursuant to this Agreement, after giving effect to the Services required and the risks assumed by Company. Neither Customer nor Company will bill any government healthcare program(s) for Company’s Services.
2.5 Limitations. No license to the CareClix® telehealth software or any Application is granted by this Agreement or Schedule ‘1’ to Customer or any Authorized User and this Agreement provides only a limited right of access to the Services on the terms and conditions of this Agreement and Schedule 1. Customer agrees that it will not, and will not permit any Authorized User or other third party to: (a) permit any person to access the Software or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the Software or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein.
3.1 Fees. In consideration for the Services provided by Company under this Agreement, Customer will pay to Company the subscription fees, Application fees, any implementation services fees and any other fees as set forth in Schedule ‘1’. In the event that Customer wishes to add Applications or to increase the number of Authorized Users or Authorized Facilities beyond the maximum number of Authorized Users or Authorized Facilities for which fees have been paid, the parties will execute a change order to Schedule 1 (each, a “Change Order”) setting forth any additional fees associated with the increased number of Applications, Authorized Users or Authorized Facilities. Except as otherwise provided in Schedule 1 or a Change Order, all fees for Services are due and payable to Company on receipt of the Invoice. If any amount Customer owes under this Agreement is ten (10) or more days overdue, Company may, without limiting its other rights and remedies, suspend performance of the Services until all amounts due are paid in full.
3.2 Payment. Customer shall pay each invoice via ACH (Automated Clearing House) payment, or by credit card, e-check or other electronic payment method, to the Company. If Customer disputes any charges or fees on the invoice, Customer will notify Company within ten (10) days of receipt of such disputed invoice, and the Parties will work in good faith to resolve any such dispute within ten (10) days of notice of such dispute.
3.3 Taxes. All Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges (collectively, “Taxes”), and Customer will be responsible for payment of all such Taxes (other than taxes based on Company’s income), arising from the payment of the Fees, the delivery of the Services, or the license of the Software to Customer. Customer will pay all Fees to Company free and clear of, and without reduction for, any Taxes; and any Taxes imposed on payments of Fees to Company are Customer’s sole responsibility. Customer on request will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such Taxes have been paid. Customer shall indemnify and defend Company in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
3.4 Expenses. Customer shall reimburse Company for all costs, pre-approved by Customer, including Company’s reasonable out-of-pocket (including travel and living) expenses (“Expenses”) incurred in performing its obligations hereunder. All Expenses incurred by Customer in connection with this Agreement are the sole responsibility of Customer.
3.5 Interest. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less.
3.6 Audit. Customer will permit Company or its representatives to audit Customer’s relevant book and records and inspect Customer’s facilities to ensure compliance with this Agreement. Company will give Customer at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If any such audit should disclose any underpayment of fees, Customer shall promptly pay Company such underpaid amount, together with interest thereon at the rate specified in this section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Customer shall also pay Company for Company’s expenses associated with such audit.
4.1 Ownership. The Services, Software, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company. All rights in and to the Services, Software, and Documentation not expressly granted to Customer in this Agreement are reserved by Company. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer or any Authorized User regarding the Software, Documentation, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
4.2 Intellectual Property Rights. For purposes of this Agreement,
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
4.3 Open Source Software. Certain items of software may be provided to Customer with the Software and are subject to “open source” or “free software” licenses (
“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of the section titled Indemnification or the subsection titled License Grant. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified below.
5.1 Limited Warranty. Company warrants to Customer that the Software will operate free from errors during the term of the Agreement as provided in the Documentation and the Company will perform the Services in a professional and workmanlike manner. Provided that Customer notifies Company in writing of any breach of the foregoing warranty during the term hereof, Company shall, as Customer’s sole and exclusive remedy, provide the support set forth in the Documentation and as described in the Services and Support Terms and Conditions.
5.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY COMPANY. COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE AND SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
6.1 Types of Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH COMPANY’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
6.2 Amount of Damages. THE MAXIMUM LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE COMPANY’S LIABILITY FOR INTENTIONAL MISCONDUCT OF COMPANY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY CAUSED BY COMPANY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
6.3 Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 6 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the terms of this Agreement were entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
6.4. Survival. The provisions of this Section shall survive any termination of this Agreement.
7.1 Confidential Information. During the term of this Agreement, each Party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Software, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Company. Notwithstanding the foregoing, the Documentation, Software, pricing, Services, and terms of this Agreement and Schedule ‘1’ all shall be deemed to be Confidential Information.
7.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such Confidential Information (with respect to Company). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
7.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
7.4 Use of Name and/or Logo. Customer grants Company the right to use Customer’s name and/or logo in marketing and advertising materials.
7.5 Survival. The provisions of this Section shall survive any termination of this Agreement
8.1 By Company. Company will defend and indemnify Customer, its officers, directors, employees, shareholders, contractors, and representatives from any claim or suit brought against Customer by a third party alleging that the Software or the Services misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued as of the Effective Date. Company will pay any settlement or damages finally awarded in any such claim or suit. If any portion of the Software or the Services becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Software or the Services; (b) replace the Software or the Services with non-infringing software or services which do not materially impair the functionality of the Software or the Services; (c) modify the Software or the Services so that it becomes non-infringing, or (d) terminate this Agreement and refund any fees actually paid by Customer to Company for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the Software, Documentation, and Services. Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software or the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Software or the Services in combination with other products, equipment, software or data not supplied or approved by Company; or (y) any modification of the Software or the Services by any person other than Company or its authorized agents. This Section states the sole and exclusive remedy of Customer and the entire liability of Company for infringement claims and actions.
8.2 By Customer. Customer will defend, indemnify and hold harmless Company and its officers, directors, employees, shareholders, contractors or representatives from and against any loss, damage, fines or costs (including reasonable attorneys’ fees) in connection with a claim or suit arising out of or relating to Customer’s breach or alleged breach of this Agreement.
8.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit, and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
8.4 Survival. The provisions of this Section shall survive any termination of this Agreement
9.1 Term. Subject to earlier termination as provided below, this Agreement commences on the Effective Date and expires one (1) year after the Effective Date (the “Initial Term”). The Agreement shall automatically renew for additional one (1) year periods (each, a “Renewal Term”) unless either Party requests termination at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term. The Initial Term and each Renewal Term are, collectively, the “Term.”
9.2 Termination. Either Party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
9.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for payment obligations), including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each Party shall comply with the obligations to return all Confidential Information of the other Party in accordance with this Agreement; (c) within ten (10) days after the effective date of termination, Company shall discontinue all use of Customer Content and destroy all copies of Customer Content in its possession. Any payment obligation of Customer, and any undertakings or obligations which may their express terms survive, will survive expiration or termination of this Agreement for any reason. Upon termination of this Agreement other than as permitted under this Section, Customer shall immediately pay two months payment and all amounts due under Agreement; and Customer shall return all equipment, Documentation and any other information or material obtained by Customer under this Agreement
10.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Virginia, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in Virginia, USA for any lawsuit filed there against Customer by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software, Documentation, or Services hereunder.
10.2 Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
10.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
10.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.4 No Assignment. Neither Party may assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other Party. The terms of this Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
10.5 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of any amounts owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
10.6 Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither Party is an agent, employee, or partner of the other. Customer will not have and will not represent to any third party that it has, any authority to act on behalf of Company.
10.7 Notices. Each Party must deliver all notices or other communications required or permitted under this Agreement in writing to the other Party at the address listed below by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.
With a copy to firstname.lastname@example.org