Effective Date: May 25, 2018 or signing date of prior Hosting Services Agreement (whichever is earlier)
1.1 Hosted Software. Licensor hereby grants to Licensee during the term of this Agreement a limited, fee-bearing, non-exclusive, terminable, non-transferable right and license to access and use the Hosted Software and/or Additional Modules (as defined below), in each case solely in the manner enabled by the Hosted Software. Licensee is solely responsible for all hardware, software and other equipment and services necessary to exercise the foregoing license.
1.2 Permitted Uses.
Licensee may, under the License:
Use. (i) Use the Hosted Software subject to all of the terms of this Agreement; (ii) use the Agreement solely for purposes of supporting Licensee’s use of the Hosted Software; (iii) use the Hosted Software solely in accordance with the Agreement to create Licensee-specific objects or object code; (iv) to use the Hosted Software for Licensee’s business and in support of Licensee’s employees; and (v) install, integrate, and implement the Hosted Software or to have third parties (e.g., system integrators) do so for Licensee. To the extent Licensee has the right to modify the Hosted Software or make derivative works, Licensee shall own such modifications or derivative works.
Copy. (i) Copy the Hosted Software as reasonably necessary to support the License to use; (ii) copy the Hosted Software to operate up to the maximum number of Users, as applicable, provided that Licensee may make one additional copy of the Hosted Software for use on one system, per User, so long as such User operates only one copy of the Hosted Software at any given time; (iii) to make a reasonable number of additional copies of the Hosted Software solely for archival, back-up, testing, or disaster recovery purposes; and (iv) to copy the Documentation as reasonably necessary to support the use of the Hosted Software.
1.3 Additional Modules. The Hosted Software may enable
Licensee to order certain additional modules that offer additional functionality on a hosted basis (the “Additional Modules”, and together with the Hosted Software the “Hosted Products”). Licensee’s use of any such Additional Modules shall be governed by this Agreement. To the extent an Additional Module is accompanied by additional terms and conditions that have been agreed upon by Licensee, such terms and conditions shall supersede any conflicting terms of this Agreement with respect to such Additional Modules and shall be agreed to by the parties hereto.
Except as expressly provided in this Agreement, Licensee may not:
Copy, distribute, rent, lease, lend, sublicense, transfer or make the Hosted Products available to any third party (except as described in Section 1) or use the Hosted Products on a service bureau basis;
Decompile, reverse engineer, or disassemble the Hosted Products (except and only to the extent such restriction is expressly prohibited by applicable law);
Create derivative works based on the Hosted Products; or,
Modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Hosted Products or that appear during the use and operation of the Hosted Products.
3.MAINTENANCE AND SUPPORT.
Licensor shall provide the maintenance and support services in accordance with this Agreement, including Exhibit C (Maintenance and Support Services Agreement), during the Term of this Agreement.
DATA BACK UP SERVICES.
Licensor shall provide the data backup services described in Exhibit B (Hosting Services) during the Term of this Agreement.
Licensor will provide the hosting services in accordance with this Agreement, including Exhibit B (Hosting Services), during the Term of this Agreement.
FEES AND BILLING.
6.1 Licensee shall pay Licensor the fees set forth in Exhibit A (Electronic Order Form). All Fees and expenses due and payable by Licensee shall be due and payable forty-five (45) days from the date Licensee receives a Licensor invoice for Fees due. After 45 days, Licensee will be notified to bring their account current by the 15th of the following month. Licensor reserves the right to suspend delivery of services if Licensee fails to timely pay any undisputed amounts due to Licensor under this Agreement, but only after Licensor notifies Licensee of such failure and such failure continues for fifteen (15) days after the 15th of said following month. Suspension of the services shall not release Licensee of its payment obligations under this Agreement. Licensee agrees that Licensor shall not be liable to Licensee or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the services resulting from Licensee’s nonpayment. Licensor will not be responsible for any bank charges, domestic or foreign transaction fees imposed by Licensee’s bank. All the Fees will be directly charged to the business card approved by the Licensee. Licensor may increase fees no more than once each Term subject to sixty- (60) days’ prior written notice and by no more than 3% of the fees for the prior Term.
6.2 If any undisputed Fees are not paid within such time, Licensor has the option to institute, on unpaid fees, an interest at a rate equal to the lesser of 1.5% per month or the maximum interest rate allowed by applicable law. Unless Licensee is a tax-exempt organization, Licensee shall be responsible for payment of any sales, use, value-added, consumption or goods and services tax, import duties, or any other taxes or charges which may be applicable to this Agreement or the Hosted Software.
INTELLECTUAL PROPERTY RIGHTS.
7.1 This Agreement provides Licensee limited rights to use the Hosted Product. As between the parties, all title, ownership rights, and intellectual property rights in and to the Hosted Product and any copies thereof shall belong to Licensor. Except as expressly provided herein, no other right or license is granted to Licensee.
7.2 To the extent the Hosted Product includes third-party applications licensed by Licensor (e.g., third-party file viewers) (collectively, “Third Party Software”), Licensor shall secure for Licensee the rights to use such Third-Party Software on the terms set forth in this Agreement. Licensee shall not use any Third-Party Software in a stand-alone mode (unless Licensee obtains such Third-Party Software under a separate contract between Licensee and the applicable third party), nor remove any Third-Party Software from the Hosted Products.
DATA & SECURITY.
8.1 The Hosted Product(s) enable the transmission, storage and receipt of confidential personal and/or immigration information of Licensee’s clients, customers, members, prospective and actual employees and contractors, and their family members (the “Licensee Data”). Licensee is, at all times during the Term of this Agreement and thereafter, solely responsible for obtaining and maintaining all legally necessary rights, licenses consents, waivers, or permissions required for Licensee to disclose, process, transmit, receive and view the Licensee Data. Licensee agrees that Licensor has the right to monitor, retrieve, store and use the Licensee Data solely as reasonably necessary in the performance of Licensor’s obligations hereunder and subject to the terms and conditions of this Agreement. As between the parties, all right, title and interest in and to all Licensee Data is and shall belong to Licensee. To the extent any Licensee Data is stored on servers owned or controlled by Licensor through use of Hosted Software, Licensor will provide Licensee with a copy of all such Licensee Data in a mutually acceptable electronic format at reasonable cost to Licensee and within a reasonable period of time (not to exceed seven (7) calendar days) of receiving a written request from Licensee. LICENSOR CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR LICENSEE’S USE OR MISUSE OF LICENSEE DATA OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED USING THE HOSTED PRODUCTS. Users must abide by all INSZoom Privacy Policies posted within the Hosted Software, as may be amended from time to time by Licensor in its sole discretion.
8.2 Personal Information. Licensee Data may be considered “personal information” protected under applicable privacy laws. Licensor agrees to manage personal information in accordance with all applicable privacy laws governing the collection, use or disclosure thereof. Licensor acknowledges that it is aware of all applicable laws relating to the privacy and security of personal information and Licensor shall comply with all such applicable laws. Without limiting the generality of the foregoing, Licensor agrees as follows:
8.2.1. Licensor has performed a reasonable risk assessment and agrees to immediately implement appropriate technical and organizational safeguards and procedures in a manner that is consistent with these principles and policies to protect any Licensee Data to which it may have access in connection with this Agreement.
8.2.2. Licensor will not collect, use or transfer any Licensee Data without prior written instructions from Licensee.
8.2.3. Within a commercially-reasonable time after written notice from Licensee, Licensor agrees to cooperate with Licensee in any investigation.
8.2.4. Licensor will not transfer or store any Licensee Data outside of the United States.
8.3 Data Breach Investigation. In addition to any requirements set forth elsewhere in the Agreement, in the event Licensor or any of its representatives becomes aware of a Data Breach, Licensor will promptly, and at its own expense, (a) investigate (with Licensee’s participation if so desired by Licensee) the Data Breach, (b) perform a root cause analysis and prepare a corrective action plan, (c) provide written reports of its findings and proposed corrective action plan to Licensee for its review and approval, and (d) upon Licensee’s approval, implement the corrective action plan and, to the extent the Data Breach is within Licensor’s or its subcontractor’s or Affiliate’s areas of control, remediate the Data Breach and take commercially reasonable actions to prevent its recurrence. Licensor will immediately notify Licensee of any actual or threatened security breach in or unauthorized or suspicious access to the telecommunications systems that would adversely affect Licensee’s systems or access to the System.
8.4 Licensor’s Data Security provisions, attached hereto as Exhibit D, shall be incorporated into and made a part of this Agreement.
8.5 Licensee or its authorized representatives may conduct reviews of Licensor’s security controls for Licensor’s systems containing Licensee information as outlined in this section with advance notice of at least fourteen (14) calendar days. Licensor shall allow Licensee or its authorized representatives to perform a review of Supplier’s security and privacy controls to ensure compliance with regulatory requirements and the terms and conditions of this Agreement and the internal audit provisions included in Exhibit B. Such reviews may be in the form of security questionnaires, phone calls, onsite visits, security reviews or any combination thereof which may be subject to advance notice and cost to Licensee dependent on date and scope of request based on time and resources Licensor must expend to fulfill the request (e.g. comparable to hourly rates listed in Exhibit A). Security reviews may also be requested based on scope change of Licensor’s services provided to Licensee, cybersecurity threat landscape changes, and Licensor’s organizational or subcontractor scope changes.
8.6 Third-Party Audits. At least annually and at its expense, Licensor will have a reputable independent public accounting firm (or another independent third party) conduct a review of Licensor’s operations and procedures in accordance with Exhibit B and E. Licensor will provide Licensee with confirmation of the 3rd Party review and completion within thirty (30) days of the receipt of any review under this Agreement.
LIMITED WARRANTIES / DISCLAIMERS.
9.1 Licensee and Licensor represent and warrant to each other that they: (1) have full power and authority to enter into this Agreement; (2) will be responsible for obtaining all necessary governmental approvals required for them to fulfill their obligations under this Agreement; (3) shall perform all activities undertaken in relation to this Agreement in accordance with applicable laws, (4) will comply with all laws, rules, regulations and directives applicable to them that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Licensee Data, including without limitation all regulations and directives concerning privacy and data protection, and Licensee and Licensor shall cause all persons or entities under its direction or control (including without limitation any subcontractors, licensors and/or other persons or entities involved in the production, hosting and/or support of the Hosted Products) to comply with such laws, rules, regulations and directives. In addition, Licensor represents and warrants, intending Licensee to rely thereon, that the Hosted Products will perform in accordance with the applicable documentation for the Hosted Products and in accordance with the representations made by Licensor to Licensee. Licensor further represents that Licensor will use commercially-reasonable efforts to ensure that the Hosted Products will be compatible with commonly used operating systems and software, including the most recent versions of Microsoft Internet Explorer, Mozilla Firefox, and Google Chrome Web browsers or the applicable Licensee software and two (2) prior major releases except the items/features that are not in control of INSZoom. For example, some of the Government forms are only compatible with Internet Explorer and Adobe Reader. Licensor represents and warrants that Licensor will use all commercially-reasonable efforts to ensure that Licensor’s system is protected against security risks and vulnerabilities, including, but not limited to: (a) implementing security procedures that are, at a minimum, at least as secure as those available in the most-recent versions of commercially available web hosting products, including patches, fixes or updates thereto within 24 hours of release to the general public or at least as early as its third party web services host (AWS) updates such versions for all of its commercial customers; (b) secure TLS encryption of all data transmissions; (c) password protected access and user IDs; (d) automatic log off if the system is idle or no action is taken after a specified period of time; and (e) isolation of Licensee Data into separate databases. Licensor represents and warrants that it has used its best efforts to ensure that the Hosted Products contains no “computer viruses” or “time bombs” as those terms are commonly understood in the information process industry. Specifically, Licensor warrants that the Hosted Products contains no code or instructions (including any code or instructions provided by third parties) that is designed to delete, disable, deactivate, interfere with, or otherwise harm the deliverables or Licensee’s hardware, data, or other programs, or that is intended to provide access or product modifications not authorized by Licensee.
9.2 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, LICENSOR EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.1 To the extent permitted by law, Licensee shall indemnify, defend and hold Licensor harmless from and against any and all third-party claims, actions, proceedings or suits (“Claim(s)”), including without limitation reasonable costs and attorney’s fees, actually or allegedly arising out of or relating to Licensee’s gross negligence or willful misconduct; provided, however, that Licensee shall not be required to indemnify, defend or hold Licensor harmless from any Claim to the extent that it actually or allegedly arises out of or relates to Licensor’s negligence or willful misconduct.
10.2 To the extent permitted by law, Licensor shall indemnify, defend and hold Licensee harmless from and against any and all Claims, including without limitation, reasonable costs and attorney’s fees, actually or allegedly arising out of or relating to (i) Licensor’s negligence or willful misconduct; (ii) direct damages due to a Data Breach; (iii) property damage, including loss or destruction of data, or personal injury, including death, directly caused by or sustained in connection with Licensor’s performance under this Agreement; (iv) any violation by Licensor of any requirements of law in effect as of the date of the action or inaction giving rise to the Claim; or (v) a finding or determination that Licensor is not an independent contractor of Licensee; provided, however, that Licensor shall not be required to indemnify, defend or hold Licensee harmless from any Claim to the extent that it actually or allegedly arises out of or relates to Licensee’s gross negligence or willful misconduct.
10.3 Licensor shall indemnify, defend and hold Licensee harmless from and against any and all Claim brought against Licensee for infringement of any copyright, patent, trademark or trade secret by the Hosted Products; provided that Licensor has the opportunity to assume sole control of any action or settlement and will pay any settlement amounts or damages awarded against Licensee (including reasonable attorneys’ fees and court costs) on such issue in any Claim defended by Licensor, Licensee notifies Licensor promptly in writing of such Claim (except that a failure to notify promptly shall not relieve Licensor of its indemnification obligation except to the extent Licensor is materially prejudiced by such delay), and Licensee gives Licensor all information and assistance reasonably requested by Licensor (at Licensor’s sole cost and expense) to defend or settle such Claim. If a Hosted Product is or in Licensor’s reasonable judgment may become the subject of any such Claim, or if a court determines that a Hosted Product infringes any third party right then Licensor may at its option and expense either (i) procure for Licensee the right to use the Hosted Product; (ii) replace the Hosted Product with other suitable software; or (iii) modify the Hosted Product to render it non-infringing.; or (iv) remove the Hosted Product and refund the fees paid by Licensee.
10.4 Notwithstanding Section 10.3, Licensor will have no liability for Claims involving (a) combinations of the Hosted Products with other software, products, processes, technology or materials, where the alleged infringement would not have occurred but for such combination, unless such combination is required or recommended by Licensor to use the Hosted Products; (b) modifications of the Hosted Products unless such modifications were made, approved or authorized by Licensor; (c) Licensee’s continued use of the allegedly infringing version of the Hosted Product after being notified thereof or after being provided with a modified version that would have avoided the alleged infringement; or (d) where Licensee’s use of the Hosted Products is not strictly in accordance with this Agreement.
10.5 THE FOREGOING PROVISIONS OF SECTIONS 10.2 AND 10.3 AND 10.4 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF LICENSOR TO LICENSEE, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY ANY HOSTED PRODUCTS PROVIDED TO LICENSEE BY LICENSOR.
10.6 SECTIONS 10.1 THROUGH 10.5 WILL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
LIMITATION OF LIABILITY.
EXCEPT FOR (A) INDEMNITY OBLIGATIONS, (B) DEFENSE AND HOLD HARMLESS OBLIGATIONS AS DESCRIBED IN SECTION 10, (C) BREACHES OF THE CONFIDENTIALITY OBLIGATIONS DESCRIBED IN SECTION 14, (D) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (E) ANY DIRECT DAMAGES, CLAIMS OR LOSSES ARISING FROM A DATA BREACH, AND (F) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Hosted Product is subject to U.S. and foreign export control laws. Licensee shall not ship, transfer, export or reexport the Hosted Products into any country, or use them in any fashion prohibited by the United States Export Administration Act or Regulations or any other applicable laws, restrictions, or regulations. Notwithstanding any export control provisions in this Section or this Agreement to the contrary, foreign nationals may have access to and use the Hosted Products without obtaining an export license.
TERM / TERMINATION.
13.1 Term. This Agreement will become effective on the Effective Date and will continue until the expiration of the Term, unless earlier terminated as provided herein. Either party may terminate this Agreement at the expiration of the Initial Term or any Renewal Term by written notice thereof to the other party no less than thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as applicable. At the expiration of the Initial Term or Renewal Term (As defined in the Electronic Order Form), this Agreement is eligible for additional Renewal Terms as specified in the Electronic Order Form which may be subject to a standard hike (as stated in Section 6.1). Licensor is not responsible for any costs or inconvenience that may be incurred in the event Licensee fails to timely notify Licensor of their intent to renew prior to expiration. Licensee agrees that failure to timely renew prior to expiration may result in a disruption of services as specified in the Electronic Order Form and this Agreement. License also understands that “re-activation” of the Term or this Agreement after such a disruption may be subject to charges based on current rates at that time. The Initial Term and/or any Renewal Term are individually and collectively, the “Term”.
13.2 Termination. Either party may terminate this Agreement and the rights granted hereunder by written notice to the other party in the event of any breach of any term or condition set forth herein, if such breach remains uncured thirty (30) days after receipt by the breaching party of a written notice of the breach from the non-breaching party; provided, however, that if such breach is not susceptible to cure, termination shall be effective immediately upon such written notice. Licensor may also terminate this Agreement and the rights granted hereunder effective immediately upon written notice in the event that Licensee has not paid any undisputed invoiced Fees within fifteen (15) days of its receipt of Licensor’s notice of late payment therefore. Upon expiration or termination of this Agreement, all rights and licenses granted by Licensor hereunder shall immediately terminate and Licensee shall cease access and/or use of the Hosted Software and Additional Modules. In addition, upon expiration or termination of this Agreement: (i) Licensor will provide Licensee with a copy of all Licensee Data in a mutually agreeable, industry standard electronic format at a reasonable cost to Licensee and within seven (7) calendar days following the effective termination or expiration date; and (ii) within seven (7) calendar days after receiving written confirmation from Licensee that the Licensee Data was successfully transferred to Licensee, destroy all remaining Licensee Data in Licensor’s possession or control and certify to Licensee in writing that such Licensee Data has been destroyed. Licensor will provide to Licensee and/or to a service provider selected by Licensee (such service provider shall be known as the “Successor Supplier”), at Licensee’s sole cost and expense, assistance reasonably requested by Licensee in order to effect the orderly transition of the applicable Hosted Service, in whole or in part, to Licensee or to Successor Supplier (such assistance shall be known as the “Termination Assistance Services”) during the ninety (90) calendar day period prior to, and/or following, the expiration or termination of this Agreement.
14.1 Confidentiality. The parties acknowledge that each may acquire information about the other, its business activities and operations, its technical information and its trade secrets, all of which are proprietary and confidential (the “Confidential Information”). Without limiting the foregoing, the Confidential Information of Licensor shall include any information regarding the Hosted Product and the terms of this Agreement, and the Confidential Information of Licensee shall include the Licensee Data. Each receiving party agrees: (a) that it will not use the Confidential Information of the disclosing party other than for the performance of this Agreement; (b) it shall use the same degree of care but no less than reasonable care to prevent the disclosure of Confidential Information of the disclosing party to third parties; and (c) it shall return all copies of Confidential Information of the disclosing party, or at its sole option destroy all copies of such Confidential Information upon termination or expiration of this Agreement. Exclusions. Notwithstanding the foregoing, except for Licensee Data, Confidential Information will not include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, including without limitation in response to a freedom of information act request, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure.
14.2 Use and Disclosure. Each party will take reasonable precautions to protect the confidentiality of each of the other party’s Confidential Information, which precautions will be at least equivalent to those taken by such party to protect its own Confidential Information. Except as required by law or as necessary to perform under this Agreement, neither party will use Confidential Information of the other party for its own benefit or for the benefit of any third party. Neither party will disclose the Confidential Information of the other party to any third party, except to employees and third party (subject to the provisions of this Agreement) who have a need to know the Confidential Information in order for the receiving party to perform its obligations under this Agreement.
14.3 Authorized Disclosure. Notwithstanding the foregoing provisions of this Section 14, each party may disclose the terms of this Agreement (i) in connection with the requirements of an initial public offering or securities filing; (ii) in confidence, to accountants, banks, and financing sources and their advisors; (iii) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; (iv) in confidence, in connection with a merger, reorganization, asset sale or acquisition or proposed merger or acquisition, or the like.
14.4 Business Associate Agreement. Licensor acknowledges that it may, in the course of fulfilling its obligations under this Agreement, have access to certain Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act (“HIPAA”)). If Licensor will have such access, the terms and condition of the Business Associate Addendum (attached hereto as Exhibit D) (the “BAA”) shall apply, in addition to the data protection requirements of Sections 8 and14.
15.1 “Affiliate” means any person or entity which directly, or indirectly through one or more intermediaries, owns or controls, is owned or controlled by, or is under common control or ownership with either Party, or their respective ultimate parent, where “control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management policies of a person, whether through the ownership of voting securities, by contract or otherwise.
“Data Breach” means any unauthorized access to, use or disclosure of, or potential access to or use or disclosure of any Licensee Confidential Information while it is solely under the control of Service Provider.
15.2 “Confidential information,” as pertains to Licensor, means any information regarding the Hosted Product and the terms of this Agreement. The Confidential Information of Licensee shall include the Licensee Data.
15.3 “Intellectual Property” means the Parties’, their Affiliates’ and/or their licensors’ intellectual property rights (including all copyrights, patents, trademarks, trade names, trade secrets, service marks, industrial designs, logos and know how) and all applications, constitutions, extensions, notices, licenses, sublicenses, agreements and registrations thereof in any jurisdiction.
15.4 “Service Plan” or “Edition Plan” means the right to access and use the subscription service associated with the Licensee’s purchased edition plan of the application for a specified period in exchange for a periodic fee, subject to the Service Plan restrictions and requirements that are used to describe the selected Service Plan on the Site. Restrictions and requirements may include any or all of the following: (a) number of Licenses and/or Users that a Subscriber may use in a month or year for a fee; (b) fee for sent License in excess of the number of License allocated to Subscriber under the Service Plan; (c) per-license or per-user restrictions; (d) the license to use Licensor Case Management software products in connection with the Subscription Service; and (e) per use fees.
15.5 “User” means an active Authorized User listed in the membership of an Account at any one time. No two individuals may log onto or use the Subscription Service as the same Authorized User, but Licensee may unregister or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Licenses purchased.
15.6 “Authorized User” means any employee, subcontractor, or agent of Licensee, identified by a unique email address and user name, who is registered under the Account, provided that no two persons may register, access or use the Subscription Service as the same Authorized User.
15.7 “Super User” means an account with privileged levels beyond the User or Authorized User. Super User accounts are necessary to establish platform management, configuration, and control functions. Because these accounts have elevated access rights, those with access can bypass internal controls that may be confronted by a User or Authorized User.
16.1 Marketing. Licensee agrees that Licensor may, after first obtaining Licensee’s advanced approval, briefly describe Licensee’s business in its marketing materials and website during the Term of this Agreement. The parties may issue a joint press release as is mutually agreeable.
16.2 Professional Services. Professional Services, such as, but not limited to, development of custom modules or configuration of Hosted Product, will be undertaken by Licensor at its sole discretion. Licensor is under no obligation to undertake any Professional Services, although Licensor may take into consideration Licensee requests. Any Deliverable resulting from such Professional Services shall be licensed to Licensee as an Additional Module in accordance with the terms and conditions of this Agreement.
16.3 Survival. The covenants, representations and warrants, indemnification clause, confidentiality duties and limitation of liability set forth in this Agreement shall survive the expiration or termination of this Agreement. The expiration or termination of this Agreement shall not affect the rights and obligations of the Parties with respect to transactions and occurrences which take place prior to the effective date of termination.
16.4 Force Majeure. A Party will be excused from a delay in performing, or a failure to perform, its obligations under this Agreement to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control, and without any fault, of such Party. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay. However, if an excusable delay continues more than sixty (60) days, the Party not relying on the excusable delay may, at its option, terminate the affected Agreement(s) in whole or in part, upon notice to the other Party. In order to avail itself of the relief provided in this Section for an excusable delay, the Party must act with due diligence to remedy the cause of, or to mitigate or overcome, such delay or failure.
16.5 Choice of Law, Venue, and Jurisdiction. This agreement shall be construed and controlled by the laws of the State of California excluding its conflict of law principles. Licensee hereby consents to the exclusive jurisdiction and venue of the State and Federal Courts sitting in Alameda County, California.
16.6 Severability. Should any term of this Agreement be declared to conflict with governing law or if any provision or portion thereof is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, then (i) such provision or portion thereof shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect.
16.7 No Waiver. No failure or delay by a Party to insist upon the strict performance of any term or condition under this Agreement or to exercise any right or remedy available under this Agreement at law or in equity, and no course of dealing between the Parties, shall imply or otherwise constitute a waiver of such right or remedy, and no single or partial exercise of any right or remedy by any Party will preclude any other or further exercise thereof. All rights and remedies provided in this Agreement are cumulative and not alternative; and are in addition to all other available remedies at law or in equity.
16.8 U.S. Government Rights. If the Licensee of this commercial computer software is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure, or transfer of this software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulations Supplement 227.7202 for military purposes. All other use is prohibited. This product was developed fully at private expense.
16.9 Assignment. Neither party may assign its rights or delegate its obligations hereunder without the other party’s prior written consent. Any attempted assignment or delegation in contravention of the foregoing shall be void and of no effect.
16.10 Relationship. Nothing in this Agreement shall be deemed to constitute a joint venture, partnership, agency, representative, or employment relationship between the parties. This Agreement shall not be construed as authority for either party to act for the other party in any capacity or to make commitments of any kind for the account of, or on behalf of, the other party except to the extent expressly set forth in this Agreement.
16.11 Notices. Unless specifically stated, any notices to be given hereunder by either party to the other shall be given either by email, or personal delivery to an authorized representative, by overnight express carrier with delivery receipt tracking (e.g., Federal Express, UPS, etc.), or by certified mail addressed to the parties at the addresses appearing in the Electronic Order Form. Either party may change its notification address by written notice in accordance with this paragraph. All notices will be deemed communicated as of the actual receipt, as verified by the delivery carrier.
16.12. Corporate Compliance. Licensee has in place a Code of Excellence (“Code”), the goal of which is to ensure that all applicable federal, state, and local laws and regulations are followed and all government and non-government payer requirements are satisfied. The Code includes a commitment to uphold a high standard of ethical and legal business practices and to prevent misconduct. Through the implementation of this Agreement, each party acknowledges the commitment to legal and payer contract compliance and agrees to conduct all transactions which occur pursuant to this Agreement in accordance with all applicable federal, state and local laws and regulations and all government and non-government payer requirements. Any material violations of applicable law or payer requirements will be considered a breach of this Agreement. In addition, pursuant to the federal Deficit Reduction Act of 2005, Licensee is required to provide contractors with information about the federal and state laws regarding false claims, Medicare Parts C and D compliance, penalties and whistleblower rights and protections under such laws. Licensee has also implemented a policy to detect, address and prevent issues of fraud, waste and abuse. This policy, the Code, and information regarding the Centers for Medicare and Medicaid Services’ Medicare Learning Network (“MLN”) or other applicable payer requirements shall be accessed by Licensor on Licensee’s online supplier portal at http://www.spectrumhealth.org/for-suppliers, or Licensee will provide a hard copy or additional access to such materials upon written request from Licensor. It is Licensee’s expectation that Licensor will educate all Licensor employees and contractors who work on matters related to this Agreement on such policy, the Code, and all applicable payer requirements (including, but not limited to, MLN training if required as described in the supplier portal) within ninety (90) days of the effective date of this Agreement and annually thereafter. By signing this Agreement, Licensor represents and warrants that neither it nor any of its employees or contractors directly involved in the provision of Services are, or have been, excluded from participation in any federally and/or state funded health care programs, including but not limited to Medicare, Medicaid, and TRICARE. Licensor agrees to promptly notify Licensee of any proposed or actual exclusion, of it or any of its employees or contractors directly involved in the provision of Services, from any federally and/or state funded health care program. Licensee is an equal employment opportunity employer and is a federal contractor. Consequently, the parties agree that, to the extent applicable, they will comply with Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1974 and Section 503 of the Vocational Rehabilitation Act of 1973 and also agree that these laws are incorporated herein by this reference. 41 CFR 60-300.5(a) and 60-741.5(a) prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities. Licensor also agrees to comply with the provisions of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
16.14 Subcontractors. Licensor shall not engage any subcontractor to perform any services for Licensee without the prior written consent of Licensee. If Licensee approves a subcontractor, Licensor shall obtain and maintain in effect a written agreement with the subcontractor, which agreement shall contain sufficient terms for Licensor to fully comply with all provisions of this Agreement and to support all grants and assignments of rights and ownership hereunder; however, nothing contained in any such agreement shall create, nor represent to create, a contractual relationship between Licensee and any subcontractor. Such agreement shall also impose an obligation of confidentiality (consistent with Section 8 (Confidentiality)) on the subcontractor with respect to Licensee’s Confidential Information. Licensor shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
16.15 Entire Agreement. This Agreement, including the Electronic Order Form and any Exhibits attached hereto, constitute the entire integrated agreement between Licensor and Licensee with respect to the Hosted Products and related services. No statement, representation, warranty, covenant or agreement of any kind, including without limitation, any terms included in or located on a purchase order, invoice, or website, accessed through a URL, provided as an end user license agreement, or provided in a click-wrap, shrink-wrap or other similar format, not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
16.13 No third-party beneficiaries. All terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their successors and authorized assigns. Except as otherwise provided in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the Parties to this Agreement.
16.15 Material Changes. Each Party must immediately notify the other Party in writing of any change in their business operations, financial condition, licenses or regulatory approvals if the change is likely to have a material adverse effect on such Party’s ability to perform its obligations under this Agreement.
16.16 Addendum. No amendment to this Agreement will be effective unless in writing signed by a duly authorized representative of each party. Any provisions of purchase orders, invoices, or similar documents submitted by Licensee to Licensor, which are in addition to and/or inconsistent with the terms and conditions of this Agreement shall be unenforceable and deemed stricken from any such document. Capitalized terms not defined in the Licensor’s Standard Terms & Conditions shall have the meaning set forth in the Electronic Order Form or, if applicable, the Exhibits attached hereto. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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