SAAS AGREEMENT
SAAS AGREEMENT
THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF CLOUD CLINIC’S SERVICES AND RECEIPT OF SUPPORT.
BY CLICKING THE “I ACCEPT” BOX, YOU AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF CUSTOMER. YOU REPRESENT AND WARRANT TO CLOUD CLINIC THAT YOU HAVE THE POWER AND AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
This SaaS Agreement (this “Agreement”) is entered into by and between Cloud Clinic, LLC., a Wyoming corporation (“Cloud Clinic”), and the Customer (“Customer”). The effective date of this Agreement is the date that Customer signs the Order Form or clicks “I Accept” to accept this Agreement, whichever date is earlier (the “Effective Date”). Capitalized terms not defined prior to Section 14 are defined in Section 14.
For good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, Cloud Clinic and Customer hereby agree as follows:
Section 1
1.1 Purpose. This Agreement sets forth the terms and conditions under which Cloud Clinic agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefore, a “Platform”) to Authorized Users, as further set forth on each order form (“Order Form”) and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and each Platform, as further set forth on each statement of services (“Statement of Work”) issued hereunder (Order Forms and Statements of Professional Services are sometimes referred to jointly as a “Statement of Services”).
1.2 The Services; Access and Use License. Cloud Clinic shall use commercially reasonable efforts to provide the Services to Customer. Customer acknowledges and agrees that the Services may not be available or functionality of the Services may be materially reduced during and as a result of (a) downtime due to Cloud Clinic’s performance of upgrades or maintenance of the Services or a Force Majeure Event, (b) Customer’s misuse of Services, or (c) any circumstances that are beyond Cloud Clinic’s reasonable control, including but not limited to, Customer’s use of Non-Cloud Clinic Products and Services.
1.3 Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, subscription term and other applicable terms and conditions.
1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.5 Changes to Platform. Cloud Clinic reserves the right, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Cloud Clinic’s products or services to its customers, (b) the competitive strength of, or market for, Cloud Clinic’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
Section 2
PLATFORM ACCESS AND AUTHORIZED USER
2.1 Platform Access. Conditioned upon Customer’s continued compliance with this Agreement and Customer’s on-time payment of all then-due amounts to Cloud Clinic; Customer is granted a limited, non-exclusive, revocable and non-transferable right, solely for Customer’s own internal business purposes and for the Term of this Agreement, to (a) access and use the Services in accordance with this Agreement and (b) permit Authorized Users to access and use the Services in accordance with this Agreement.
2.2 Administrative Users. During the configuration and set-up process for each Platform, Customer will identify an administrative user name and password for Customer’s Cloud Clinic account. Cloud Clinic reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
2.3 Authorized Users. Customer may allow such number of Customer’s employees, independent contractors, and/or medical providers as is indicated on an Order Form to use the applicable Platform on behalf of Customer as “Customer Users.” Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable Platform. All Authorized Users providing medical services, through online, in-person or telehealth channels, are required to provide a National Provider Identifier (“NPI”) Number and should be authorized to practice in the state in which they are providing medical services.
2.4 Authorized User Conditions to Use. Cloud Clinic and its licensors own all right, title and interest in and to the Services (including the Cloud Clinic Materials), and any improvements, design contributions or derivative works thereto, and all Proprietary Rights in the same. Except for the limited rights expressly granted herein, this Agreement does not transfer from Cloud Clinic any Proprietary Rights or interest in the Services (including the Cloud Clinic Materials) to Customer. All rights not expressly granted to Customer in this Agreement are expressly reserved by Cloud Clinic and its licensors. As a condition to access and use of a Platform, (i) each Authorized User shall agree to abide by the terms of Cloud Clinic’s end-user terms of use which it may adopt from time to time, (ii) Customer Users shall agree to abide by the terms of this Agreement, or a subset hereof, and Customer shall ensure such compliance. Customer shall immediately notify Cloud Clinic of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User.
2.5 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Cloud Clinic’s accounts, passwords (including but not limited to administrative and user passwords) and files. Cloud Clinic is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
Section 3
Third Party Websites, Products and Services
3.1 The Services may contain (a) links to external websites (including embedded widgets or other means of access) of Cloud Clinic’s partners or other third parties (“Third Party Websites”) and (b) features designed to integrate with third party software, applications or products, including, but not limited to, website hosts and scheduling tools, (collectively and individually, “Third Party Products”, and together with the Third Party Websites, the “Non-Cloud Clinic Products and Services”). Customer is responsible for knowing the terms governing its use of any Non-Cloud Clinic Products and Services. Any exchange of Customer Data between Customer and any provider of any Non-Cloud Clinic Products and Services, is solely between Customer and the applicable third-party provider, and Cloud Clinic is not responsible for any disclosure, modification or deletion of Customer Data caused by or related to Non-Cloud Clinic Products and Services. Additionally, Cloud Clinic may rely on input (e.g. calendar appointments) from Non-Cloud Clinic Products and Services from time to time and shall not be liable for any diminished or interrupted functionality to the Services resulting from the use or integration with any such Non-Cloud Clinic Products and Services.
3.2 If Customer installs or enables a Non-Cloud Clinic Product and Service for use with the Services, Customer grants Cloud Clinic permission to (a) allow the provider of that Non-Cloud Clinic Product and Service to access Customer Data as required for the interoperation of that Non-Cloud Clinic Product and Service with the Services and (b) access Customer’s account(s) for the Non-Cloud Clinic Products and Services. If the provider of a Non-Cloud Clinic Product and Service ceases to make the Non-Cloud Clinic Product and Service available for interoperation with the corresponding Services features on reasonable terms as determined in Cloud Clinic's sole discretion, Cloud Clinic may cease providing those Services features, without entitling Customer to any refund, credit, or other compensation.
3.3 Cloud Clinic shall have no liability or obligations (including any warranty or support obligations) with respect to any Non-Cloud Clinic Products and Services. Customer shall promptly reimburse Cloud Clinic for Damages incurred by Cloud Clinic due to, arising from, or relating to any Non-Cloud Clinic Products and Services.
Section 4
Restrictions on Customer
4.1 Customer shall ensure it and its Authorized Users comply with the terms of this Agreement, including the Terms of Use. Customer shall be responsible for the actions and omissions of its Authorized Users and any other person or entity to which Customer allows access to the Services, knowingly or unknowingly. Additionally, each Authorized User will be required to accept the Terms of Use and Privacy Policy prior to receiving access to the Services and/or Support. Customer shall not sublicense, license, sell, lease, rent or otherwise make the Services available to third parties (other than Authorized Users, and solely as permitted by this Agreement).
4.2 Customer’s Administrative Users shall designate Authorized User privilege levels and associated scope of access to Services (including an account manager access control and view-only access role) based on Authorized User duties and purposes for accessing and using the Services. At the time Access Credentials are issued to each and every Authorized User, Customer’s Administrative Users shall ensure that: (a) the Authorized User affirmatively agrees to comply with Customer’s obligations under this Agreement; (b) the Authorized User accepts the Terms of Use and Privacy Policy; and (c) the privilege level and scope of access granted to the Authorized User is appropriate based on business and/or clinical needs, consistent with sensitivity/risk, and does not violate segregation of duties. Customer shall adopt and implement a password management policy that meets industry standards and guidelines and complies with applicable laws and regulations. User names and passwords (collectively, the “Access Credentials”) to the Services cannot be shared or used by more than one individual (except they may be shared with the Administrative Users, who still must use the Access Credentials in accordance with this Agreement).
4.3 Customer shall ensure that Access Credentials for each Authorized User are regularly reviewed by Customer’s Administrative Users (or his/her designee) through a formal documented process adopted and implemented by Customer. Pursuant to such formal process, Customer’s Administrative Users shall: (a) immediately adjust an Authorized User’s privilege levels and associated scope of access to Services, as appropriate, if the Authorized User’s duties and purposes for accessing and using the Services change; (b) monitor abnormal usage patterns; and (c) promptly remove the access rights, and revoke the Access Credentials, of any Authorized User that no longer requires or is no longer permitted access to the Services. If the security or confidentiality of any Access Credentials is in any way compromised, Customer shall report such compromise to Cloud Clinic immediately.
4.4 Customer shall not, and shall ensure that its Authorized Users do not: (a) copy, translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the Services; (b) transmit any content, data or information that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable; (c) infringe the intellectual property rights of any entity or person; (d) interfere with or disrupt the Cloud Clinic software or Cloud Clinic systems used to host the Services, or other equipment or networks connected to the Services; (e) use the Services in the operation of a service bureau, outsourcing or time-sharing service; (f) circumvent or disclose the user authentication or security of the Services or any host, network, or account related thereto; (g) use the Services for the purpose of building a competitive product or service or copying its features or user interface; (h) permit access to the Services by a competitor of Cloud Clinic; (i) use the Services to transmit any code, files, scripts, agents or programs intended to do harm, for example, viruses, worms, time bombs and Trojan horses; or (j) make any use of the Services that violates any applicable local, state, national, international or foreign law or regulation.
5.5 Customer shall be fully responsible for the content of its Customer Data and in no event shall Cloud Clinic be liable to Customer or any other person for the content of the Customer Data. Customer agrees that it has collected and shall maintain and handle all Customer Data in compliance with all applicable data privacy and protection laws, rules and regulations (including, without limitation, HIPAA and TCPA). Customer represents and warrants to Cloud Clinic that it has obtained any necessary permission, release and/or consent from any person whose personal information, including any PHI or any EPHI, is entered into, transmitted by, stored on, or uploaded to the Services as Customer Data, or otherwise provided to Cloud Clinic in any form or fashion. All Customer Data containing PHI and/or EPHI will be used and disclosed only in accordance with the provisions of the Business Associate Agreement entered into between Cloud Clinic and Customer.
Section 5
Support
5.1 Cloud Clinic shall offer support for the Services in the form of phone and email support (“Support”). As part of the Support, Customer shall receive any updates, patches, bug fixes or new versions provided by Cloud Clinic to its customers generally; provided that if Cloud Clinic offers any significant new functionality of the Services or any additional products or services, Cloud Clinic reserves the right to license such new functionality, products or services separately and charge an additional fee in connection therewith. Cloud Clinic shall provide Support only if Customer (a) promptly reports Service problems along with a detailed description of the problem with supporting evidence, (b) agrees to provide Cloud Clinic with free and safe access to Customer’s systems, networks, and facilities, if necessary, to provide Support, (c) promptly downloads, distributes, and installs updates or upgrades necessary for the proper functioning of the Services, and (d) maintains adequate backup copies of Customer Data.
5.2 Cloud Clinic may amend the Support from time to time in its sole discretion. Cloud Clinic is not obligated to provide Support if (a) the applicable issue is caused by software, hardware, or applications, other than those supplied by Cloud Clinic, (b) Customer cannot reproduce the error and demonstrate it to Cloud Clinic, (c) the applicable issue is caused by Customer’s conduct or misuse of the Services, or (d) the applicable issue is caused by a hardware malfunction or defect (including any equipment recommended by Cloud Clinic to Customer).
5.3 If it is determined by Cloud Clinic that the Services error for which Customer received Support was caused by Customer’s negligence or willful misconduct or combination of the Services with any software, hardware or applications not provided by Cloud Clinic, Customer shall promptly reimburse Cloud Clinic for any Support provided by Cloud Clinic relating to such error on a time-and-materials basis at Cloud Clinic's then-current Professional Services rates.
Section 6
Prices and Terms of Payment
6.1 The current fees for the On Boarding and Services and Support are as set forth on the Order Form as selected by Customer, but Cloud Clinic may prospectively amend such fees from time to time in its sole discretion. Customer is required to provide valid credit card information to be charged on monthly recurring basis to access Services. If payment is declined, Customer is required to provide other valid credit card information within 15 days of last invoice date or services will be terminated. Billing for the On Boarding and Services (as defined in the Order Form) will begin on the Effective Date of this Agreement. In addition, Customer will reimburse Cloud Clinic for reasonable travel expenses related to the implementation and any costs or expenses incurred by Cloud Clinic due to any undue delay caused by Customer in completing the On Boarding. Customer shall be responsible for the payment of all present or future sales, use, excise, income, value‑added, or other similar tax applicable to the price, sale, licensing, or furnishing of any Services or Support in connection with this Agreement (except for taxes on Cloud Clinic's income). Except as expressly set forth in this Agreement, all fees shall be paid in advance to Cloud Clinic and are non-refundable. Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed. Any dispute of fees due hereunder must (a) be made in good faith within fifteen (15) days of the invoice date, and (b) must involve an invoicing error of the amount due, the types of charges or the due date.
6.2 Customer may increase the number of Authorized Users that wishes to access the Services and/or increase the level of Services performed for each Authorized User by executing an addendum to the original Order Form, which Cloud Clinic must also execute. If an addition is made during the Initial Term, the start of the Initial Term will be adjusted to coincide with the date of any such addendum, thereby extending the Initial Term. Customer shall not be entitled to any refund of fees if Customer decreases the number of Authorized Users. Customer is solely responsible for any and all costs and expenses relating to integrating the Services with Customer’s existing software and network.
Section 7
Term and Termination
7.1 This Agreement is effective as of the Effective Date and the On Boarding will begin on the Effective Date. The Services will be accessible starting on the Effective Date and the Term of the Services will start on the Effective Date. The Initial Term will continue through the Service period selected on the Order Form (the “Initial Term”). Billing for the Services will begin at the end of the Trial Period, and the Service fees for the entire Initial Term remain an obligation of the Customer as of the end of the Trial Period. The Service fees are billed on a monthly basis during the Term for the benefit of Customer but remain due in full unless Customer terminates this Agreement in accordance with Section 9.2 below. Unless earlier terminated in accordance with this Agreement, this Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”) after the Initial Term, unless either party provides the other party with thirty (30) days prior written notice of its intent not to renew the Initial Term or then-current Renewal Term, as applicable. The Initial Term and the Renewal Term(s) are collectively called the “Term.”
7.2 A party may terminate this Agreement upon thirty (30) days written notice to the other party of its material breach of any provision of this Agreement unless the breaching party has cured the applicable breach in the non-breaching party’s reasonable opinion during such thirty (30) day period (or such longer period of time as agreed upon by the parties).
7.3 Not withstanding anything to the contrary in this Agreement but without limiting Cloud Clinic's rights in Section 9.2 above, Cloud Clinic may, in its sole discretion, immediately terminate this Agreement and/or suspend Customer’s or its Authorized Users’ access to the Services or a portion thereof (without notice to Customer), if (a) Cloud Clinic believes that the continued use of the Services may result in harm to Cloud Clinic, the Services (including the security of the systems used to provide the Services), other Cloud Clinic customers or the rights of any third parties or (b) Cloud Clinic believes Customer has breached this Agreement in a willful or grossly negligent manner.
7.4 Without limiting Customer’s obligations under Section 12, upon the expiration or termination of this Agreement: (a) Except for a termination arising from Section 9.2 above, in which case no payments will be required, in the event of a termination of this Agreement, Customer will pay all Service Fees noted on the Order Form. Customer understands that although the fees were billed on a monthly basis, the full fee is owed to Cloud Clinic upon Customer signing this Agreement; (b) Customer shall not be permitted to retain and shall promptly erase, return or destroy any Cloud Clinic files, information or data (including the Documentation) in Customer’s possession or control in any electronic or printed form; provided, however, that Customer shall be permitted to retain information or data sets that are necessary for its internal business interests, based on its integration into external data warehouses, or to the extent such data is related to its facility and is required to support Customer’s operational needs; and (c) Cloud Clinic shall promptly return or destroy any electronic or printed form of protected health information in Cloud Clinic's possession (or the possession of its subcontractors or agents) as required pursuant to its Business Associate Agreement with Customer. Either party shall confirm in writing such erasure or destruction upon written request from the other party.
Section 8
Indemnification
8.1 Customer will indemnify, defend and hold harmless Cloud Clinic (and its successors and assigns) and each of their respective employees, directors, officers, personnel, licensors, contractors and representatives (collectively, “Cloud Clinic Indemnitees”) from and against any and all Damages incurred by any Cloud Clinic Indemnitees in connection with any and all claims, demands, suits or proceedings made or brought against Cloud Clinic Indemnitees by a third party arising out of or relating to (a) a claim that the Customer Data or Customer's use of the Services infringes or misappropriates such third party’s intellectual property rights; (b) a claim that the Services failed to perform properly; (c) Customer’s failure to comply with applicable law, including any applicable HIPAA and TCPA regulations; (d) Customer’s (including its Authorized Users’) breach of its representations, warranties, covenants and obligations in this Agreement; (e) Customer’s installation and/or use of any Non-Cloud Clinic Products and Services; and (f) bodily injury (including death) or damage to real property or tangible personal property of Cloud Clinic caused by Customer.
8.2 Unless Cloud Clinic elects to defend itself (which it may do in its sole discretion), Customer shall defend the applicable claim with counsel agreed to by Cloud Clinic, which consent shall not be unreasonably withheld. Cloud Clinic shall at all times have the right to participate in such defense at its own expense and with its own counsel and any delay or failure of Cloud Clinic to provide notice of a claim for indemnification will not be deemed a breach by Cloud Clinic of this Agreement and will not relieve Customer of its obligations under this Section except to the extent that Customer’s defense of the claim is materially prejudiced thereby. Customer shall not settle the applicable claim without Cloud Clinic's prior written approval.
Section 9
Limitation of Liability and Disclaimers
9.1 IN NO EVENT SHALL CLOUD CLINIC, ITS SUCCESSORS, ASSIGNS, AFFILIATES, OR EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, PERSONNEL, LICENSORS, CONTRACTORS AND REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF DATA, UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, THE SERVICES OR THE SUPPORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. CLOUD CLINIC’s AGGREGATE AND TOTAL LIABILITY TO CUSTOMER AND ANY OTHER PERSON UNDER, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, THE SERVICES OR SUPPORT, REGARDLESS OF THE FORM OF ACTION AND WHETHER THE CAUSES OF ACTION OR CLAIMS ARE BROUGHT DURING OR AFTER THE TERM, WILL BE LIMITED TO THE GREATER OF (A) $10,000 OR (B) THE AMOUNT OF FEES PAID BY CUSTOMER TO CLOUD CLINIC FOR THE INITIAL TERM OF THIS AGREEMENT. For the avoidance of doubt, the liability cap set forth in this Section 11.1 is an aggregate, not a per claim cap. The provisions of this Section 11.1 allocate the risks between Cloud Clinic and Customer and reflect the basis of the bargain between Cloud Clinic and Customer.
9.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER CLOUD CLINIC NOR ITS AFFILIATES NOR ANY OTHER PERSON MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, TITLE, ORIGINALITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR RECEIPT OF THE SERVICES, SUPPORT, OR ANY MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR FREE.
Section 10
Confidentiality
10.1 The receiving party (“Receiving Party”) shall not use the Confidential Information of the disclosing party (the “Disclosing Party”) for any purposes except to perform its obligations under this Agreement. The Receiving Party shall not, without the prior written approval of the Disclosing Party, disclose the Disclosing Party’s Confidential Information to any third party; except that Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, contractors, agents, representatives and consultants that have a need-to-know and are bound by confidentiality and non-disclosure obligations at least as stringent as those set forth herein. Except as expressly set forth in this Agreement, nothing in this Agreement shall transfer any rights, title or interest of a party in its Confidential Information to the other party.
10.2 Both parties acknowledge that any unauthorized disclosure or misappropriation of any of the other party’s Confidential Information in violation of this Agreement may cause the other irreparable harm, the amount of which may be difficult to ascertain. The parties agree that an injured party shall be entitled to relief at law or in equity, including but not limited to injunctive relief and specific performance, in the event of any breach or anticipated breach of the confidentiality provisions and intellectual property provisions of this Agreement, without the necessity of proving actual damages.
10.3 All Confidential Information shall remain the property of the Disclosing Party and if disclosed in tangible or electronic form, shall, at no cost to the Disclosing Party, be returned or destroyed upon (a) the Disclosing Party’s written request or (b) within thirty (30) days after termination of this Agreement for any reason without the necessity of any request for the Confidential Information. However, the Receiving Party shall not be obligated to destroy or return any Confidential Information to the extent any such Confidential Information or copies are required to be retained by law.
10.4 The Receiving Party shall not be considered to have breached its obligations under this Section if it discloses Confidential Information of the Disclosing Party pursuant to a legal requirement of a competent government body (a “Legal Request”), provided that, promptly upon receiving any such Legal Request, and prior to making such disclosure, the Receiving Party makes available to the Disclosing Party (at the Disclosing Party’s expense) sufficient information to permit it to interpose an objection, or to take such action to promote confidential handling of the Confidential Information as it deems appropriate. The Receiving Party will not respond to a Legal Request until and unless required to do so, and will respond only to the extent required.
Section 11
Miscellaneious
11.1 If any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
11.2 Cloud Clinic reserves the right to engage third parties, including but not limited to, Contractors/Agents, to provide the Services and perform Support.
11.3 Except with respect to Customer’s payment obligations hereunder, neither party shall be liable under this Agreement for failure or delay in performance caused by a Force Majeure Event. If a Force Majeure Event occurs, the party affected shall give prompt written notice to the other party and use commercially reasonable efforts to resume the performance excused by the Force Majeure Event.
11.4 The Services are subject to the export control laws of various countries, including without limitation the laws of the United States. Customer agrees that it will not export the Services to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is located or operates, and any foreign countries with respect to the use of the Services by Customer. Customer represents that it is not named on any U.S. government denied-party list and will not use the Services in an U.S.-embargoed country.
11.5 This Agreement has been made in and shall be construed in accordance with the laws of the State of Wyoming, without giving effect to any conflict of law principles. Except for any disputes relating to intellectual property rights or obligations, or any infringement claim, Cloud Clinic and Customer mutually agree to the dispute resolution procedure set forth in this Section to resolve any disputes arising out of or relating to this Agreement or Customer’s use of the Services (“Dispute(s)”). (1) The parties will first attempt in good faith to resolve the Dispute by informal negotiation. The informal negotiation period will begin when the party asserting the Dispute sends a written notice to the other party describing the facts and circumstances of the Dispute. If, after sixty (60) days from the date the notice of Dispute is sent, the parties have been unable to resolve the Dispute, either party may commence binding arbitration. The parties may agree to extend the informal dispute resolution period by mutual written agreement. (2) If the parties are unable to resolve the Dispute through informal negotiation, Cloud Clinic and Customer agree that exclusive jurisdiction for the Dispute shall be binding arbitration before one arbitrator to be mutually agreed upon by both parties (an “Arbitrator”). If the parties cannot agree on the selection of an Arbitrator, they shall each select one Arbitrator from the list of qualified arbitrators and those two Arbitrators shall select the person who shall serve as the Arbitrator for such Dispute. Arbitration shall be initiated under the rules of the American Arbitration Association (“AAA”) in Wyoming, in English, with a written decision stating the legal reasoning issued by the Arbitrator at either party’s request. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. BY USING THE SERVICES, CUSTOMER AGREES IT IS HEREBY GIVING UP ITS RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY FOR ALL DISPUTES EXCEPT FOR THOSE RELATING TO INTELLECTUAL PROPERTY RIGHTS OR OBLIGATIONS OR ANY INFRINGEMENT CLAIM.
11.6 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. Customer must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one (1) year from the date when Customer knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s); otherwise such claims are waived and released.
11.7 All notices pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered (by certified or registered mail or by overnight courier services with delivery receipt) to the addresses of Cloud Clinic or Customer set forth on the first page of this Agreement (or any other address provided to the other party in accordance with this Section). In the case of notices by Cloud Clinic relating to the operation of the Services, such notices, may, at Cloud Clinic's option, be in the form of an electronic notice delivered by Cloud Clinic to Customer’s Administrative Users or as otherwise agreed by the parties.
11.8 This Agreement and any other related agreements between the parties may not be amended or modified except by a writing signed by both parties. This Agreement constitutes the complete and exclusive statement of the agreement between Cloud Clinic and Customer in connection with the subject matter hereof, and all previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by this Agreement, and the parties disclaim any reliance on any such representations, discussions and writings.
11.9 Customer may not, without Cloud Clinic's prior written consent, assign, delegate, pledge or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. Cloud Clinic may assign this Agreement without consent from Customer to any of its Affiliates or in the event of a merger, corporate reorganization, or acquisition of all or substantially all the assets of Cloud Clinic.
11.10 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
11.11 Sections 2.2, 3, 6, 8, 9.4, 10, 11, 12, 13 and 14 shall survive the expiration or termination of this Agreement.
11.12 Customer represents and warrants that it has in force, and will maintain in force, throughout the Term and one (1) year thereafter, adequate workers’ compensation, commercial general liability, errors and omissions, cyber liability insurance and other forms of insurance policies sufficient in nature and amount to protect Cloud Clinic from the conduct, acts or omissions of Customer.
11.13 Headings used herein are for convenience only and shall not have any separate legal effect. Any Customer terms and conditions (including any Customer purchase orders) shall only be used to facilitate the purchase of the Services and Support under this Agreement and will not have the effect of amending (e.g., adding to, deleting or otherwise modifying) this Agreement, or altering the obligations or rights of the parties under this Agreement regardless if Cloud Clinic accepted such Customer terms and conditions or not.
Section 12
Definitions
12.1 “Access Credentials” has the meaning set forth in Section 6.2.
12.2 “Affiliate” of a party means any present or future parent or subsidiary of such party, and any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights.
12.3 “Authorized User” means Customer’s and its Affiliates’ employees, agents, contractors, consultants, suppliers or other individuals who are authorized by Customer to use the Services and receive Support through Customer and as a result of their relationship with Customer.
12.4 “Business Associate Agreement” means the business associate agreement entered into between Cloud Clinic and Customer.
12.5 “Cloud Clinic” has the meaning set forth in the preamble.
12.6 “Cloud Clinic Indemnitees” has the meaning set forth in Section 8.
12.7 “Cloud Clinic Materials” mean any materials developed, created or acquired by Cloud Clinic, solely or in conjunction with others (including Customer), pursuant to this Agreement, including any derivative works thereof, in any form and in any media, now known or later developed, and all Proprietary Rights in the same. Cloud Clinic Materials include materials, documents, data, know-how, works, processes, code, software, technologies, and inventions developed, created or acquired by Cloud Clinic, solely or in conjunction with others (including Customer), pursuant to this Agreement in the course of providing any Services or Support to Customer, but do not include any Customer Data, or Customer Confidential Information. The Cloud Clinic Materials are deemed part of the “Services”.
12.8 “Confidential Information” means any confidential or proprietary information, whether marked as confidential or proprietary or which should reasonably be considered confidential or proprietary, concerning a party, its Affiliates and/or third parties and/or their respective businesses, products or services. “Confidential Information” shall not include information which (i) is independently developed by a party without use of or reference to any Confidential Information of the other party; (ii) is acquired by a party from a third party having the legal right to furnish the same to the other party; or (iii) is at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the other party).
12.9 “Contractor/Agents” means any independent contractors, subcontractors, or other non-employees of a party that perform or are asked to perform any of such party’s obligations under or related to this Agreement.
12.10 “Customer” has the meaning set forth in the preamble. References to Customer herein shall include its Administrative Userss, Customer’s Contractors/ Agents and its Authorized Users.
12.11 Customer Data” means any content, materials, data and information that Customer (including its Authorized Users) enters into the Services.
12.12 “Damages” means, collectively, any claims, demands, actions, losses, liabilities, injury, damages, suits and all related costs and expenses, including without limitation attorneys’ fees and investigation and discovery costs.
12.13 “Disclosing Party” has the meaning set forth in Section 10.1.
12.14 “Disputes” has the meaning set forth in Section 11.5.
12.15 “Documentation” means the then-current official materials produced by Cloud Clinic for the Services. Customer shall only have the right to use the Documentation for internal use in accordance with this Agreement and must retain all copyright markings on such Documentation. The Documentation shall be part of the Services.
12.16 “Electronic Protected Health Information” and/or “EPHI” has the same meaning as the term “electronic protected health information” in 45 C.F.R. § 160.103, and includes, without limitation, any EPHI provided by Covered Entity or created, maintained, received or transmitted by Business Associate on behalf of Covered Entity, as such terms are defined by HIPAA.
12.17 “Force Majeure Event” refers to any circumstances beyond Cloud Clinic's reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or other industrial disturbances, passage of law or any action taken by a governmental or public authority.
12.18 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-91, as amended, and related HIPAA regulations (45 C.F.R. §§ 160, 162, and 164).
12.19 “HITECH” means the Health Information Technology for Economic and Clinical Health Act, found in Title XIII of the American Recovery and Reinvestment Act of 2009, Public Law 111-005 and related regulations.
12.20 “Initial Term” has the meaning set forth in Section 9.1
12.21 “Integration Fees” has the meaning set forth in Section 3.4.
12.22 “Legal Request” has the meaning set forth in Section 12.4.
12.23 “Non-Cloud Clinic Products and Services” has the meaning set forth in Section 3.1.
12.24 “Order Form” means the order form entered into between Cloud Clinic and Customer to purchase Services and Support pursuant to this Agreement.
12.25 “Operating Room” has the meaning set forth in Section 1.1.
12.26 “Privacy Policy” means Cloud Clinic's privacy policy made available at https://cloudclinic.me/policy.php, as may be updated from time to time by Cloud Clinic. The Privacy Policy is referenced herein but is not made a part of this Agreement.
12.27 “Proprietary Rights” means all patents, copyrights, trademarks, trade secrets, methodologies, ideas, concepts, inventions, know-how, techniques and all other intellectual property rights and proprietary rights.
12.28 “Professional Services” means customization, training, and other similar professional services related to the Services (except implementation performed by the Customer Success Manager shall not be deemed “Professional Services”). If Customer wishes to order any Professional Services, the parties shall either amend this Agreement or enter into a separate agreement with respect to such Professional Services as such Professional Services are not governed by this Agreement.
12.29 “Protected Health Information” and/or “PHI” has the meaning given to the term under the Privacy Rule, including but not limited to, 45 C.F.R. § 160.103, and includes, without limitation, any PHI provided by Covered Entity or created, maintained, received or transmitted by Business Associate on behalf of Covered Entity, as such terms are defined by HIPAA. Unless otherwise stated in this Agreement, any provision, restriction, or obligation in this Agreement related to the use of PHI shall apply equally to EPHI. The term PHI is also deemed, solely for the purposes of this Agreement, to encompass various definitions of personal health information, medical information, and so forth under applicable state laws.
12.30 “Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information codified at 45 C.F.R. §§ 160 and 164 (Subpart E) and any other applicable provision of HIPAA and any amendments to HIPAA, including HITECH.
12.31 “Receiving Party” has the meaning set forth in Section 12.1.
12.32 “Renewal Term” has the meaning set forth in Section 9.1.
14.34 “Services” means the hosted, on demand service known as “Cloud Clinic” that may be accessed either through Cloud Clinic's website or mobile site.
14.35 “Administrative Users” means an individual person for whom Cloud Clinic sets up the first account on the Services and assigns a “Administrative Users” privilege level. Customer must promptly notify Cloud Clinic in writing if the assigned Administrative Users is no longer employed or retained by Customer or should no longer serve as the Administrative Users and designate a replacement Administrative Users. A Administrative Users is responsible for (a) creating and managing accounts for other Authorized Users and (b) granting the appropriate privilege levels and access rights to each Authorized User. The Administrative Users shall itself be considered an Authorized User.
14.36 “Support” has the meaning set forth in Section 7.1.
14.37 “TCPA” means the Telephone Consumer Protection Act 47 U.S.C. § 227, as amended, and related regulations.
14.38 “Term” has the meaning set forth in Section 9.1.
14.39 “Terms of Use” means Cloud Clinic's terms of use made available at https://cloudclinic.me/terms.php and made a part of this Agreement, as may be updated from time to time by Cloud Clinic.
14.40 “Third Party User” means any sales representatives or other individuals that may purchase the Services and receive Support from Cloud Clinic but are not affiliated with Customer.
14.41 “Third Party Products” has the meaning set forth in Section 3.1.
14.42 “Third Party Websites” has the meaning set forth in Section 3.1.
14.43 “Trial Services” has the meaning set forth in Section 5.1.