Terms and Conditions

These Terms and Conditions (including any exhibit and/or schedule attached hereto and any Order, these “Terms and Conditions”) are made by and between the Company and the Customer identified in the applicable Order.  Capitalized terms used but not defined herein have the meanings ascribed to them on the Order that is mutually executed by an authorized representative of each party.

BACKGROUND

Company has developed an application programming interface (the “Company API”) that will enable Customer to interact with certain tools, technologies and software that are used to provide access to applications and other interactive experiences equipped with authentication, out of the box interfaces and functionality, as well as secure messaging and data storage (the “Company Services”).  The Company Services are configurable so that Customer is able to provide Authorized Users (defined below) and Indirect Users (defined below) (collectively, “Users”) with access to tailored applications and interactive experience via the Company API.  The Company API and Company Services are referred to collectively as the “Company Platform”.  Customer provides business support, marketing, IT and customer support and related services to certain healthcare providers or other participants in the delivery of health and related goods and services to individuals (each, a “Provider”).  Customer desires to use the Company Platform to configure the Company Services and provide access to Users.

“Active Member” refers to a patient receiving treatment or other services from a Provider and who accessed the Company Services in the preceding calendar month.

“Authorized User” refers to Customer’s employees and independent contractors (and any other persons directed by Customer to access the Company Platform on Customer’s behalf) who have access to Company’s system directly (e.g., log in to the Company Platform, access to interactions with the Company system other than through APIs).  If Customer’s client or customers also have direct access to the Company Platform’s functions other than through APIs, such clients or customers shall also be deemed Authorized Users.

“Indirect Users” refers to individuals or entities that have access to the Company Platform only indirectly.  Such persons have no ability to log into the Company’s Platform but may submit information that is stored in the Company Platform or may receive content from the Company Platform.  Any patients who are direct or indirect customers of Customer are Indirect Users.  (Status as an Indirect User does not preclude also being an Authorized User.)

“Implementation” refers to the time period between the Order Effective Date and the Service Start Date.  During Implementation, the Agreement shall be in effect, however, the Company Platform shall not be available except for testing and to support preparation for the Service Start Date.  The length of Implementation shall be estimated in good faith by mutual and reasonable agreement of the parties, but it is expected to be approximately 60 to 120 days in length.  The Company Platform shall be available for use in production beginning on the Service Start Date.  During Implementation, the parties shall reasonably cooperate in the process of preparation for the Service Start Date and shall dedicate appropriate resources to support the implementation process.  Unless otherwise agreed, the Service Start Date shall be as indicated on the Order.  Either party has the one time right to delay the Service Start Date by up to thirty (30) days on not less than fifteen (15) days’ notice.  In such event, the actual Service Start Date shall replace the Service Start Date indicated on the Order for the purposes of calculating the Term.

IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:

1       LICENSE TO COMPANY API; ACCESS TO COMPANY SERVICES

1.1    Company API License Grant.  Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, nonexclusive, non-sublicensable, nontransferable license to (i) download and use the Company API and related materials provided by Company to Customer solely for the purposes of accessing and configuring the Company Services and (b) use the Company API to provide Authorized Users with access to the Company Services as configured by Customer.

1.2    Company Services.  Company will make the Company Services available to Customer during the Term pursuant to the terms and conditions of the Agreement.  Subject to the terms and conditions of the Agreement, Company hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable right to access and use the Company Services during the Term solely for Customer’s use in connection with providing tailored applications and interactive experiences to Authorized Users.

1.3    Limitations

Except as expressly permitted hereunder Customer will not and will not permit or authorize any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of  the Company Platform; (ii) modify, translate or create derivative works based on the Company Platform or any portion thereof; (iii) copy (except for archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Company Platform; (iv) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Company Platform or related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (v) remove or obscure any proprietary notices or labels of Company or its suppliers on the Company Platform.

1.4    Monitoring and Statistical Information.  Company may monitor Customer’s and Authorized Users’ use of the Company Platform and compile statistical and performance information related to the operation of and provision of access to the Company Platform for Company’s internal use and other lawful purposes.

2       Ownership; Reservation of Rights; USES OF DATA

2.1    Company Platform.  Customer acknowledges and agrees that, as between the parties, Company retains all rights, title, and interest in and to the Company Platform, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein.  Company grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Company Platform.

2.2    Customer Marks.  Customer hereby grants to Company a limited, nonexclusive, non-sublicensable (except to contractors, consultants and service providers providing services on behalf of Company), nontransferable (subject to Section 10) right and license to use Customer’s marks, service marks and logos (“Customer Marks”) to the extent that Customer uploads the Customer Marks into the Company Platform or otherwise provides the Company with the Customer Marks solely for the purpose of providing the Company Services.  Company acknowledges and agrees that, as between the parties, Customer retains all rights, title, and interest in and to the Customer Marks.  Customer grants no, and reserves any and all, rights other than the rights expressly granted to Company under this Agreement with respect to the Customer Marks.

2.3    Customer Data.  Customer owns, or is authorized to collect, process, transfer and store, the data (a) input or transferred by Customer or any User into the Company Platform and (b) imported into the Company Platform from Customer’s electronic systems via the Company API (“Customer Data”).  Customer will be solely responsible for the accuracy, quality, and content of Customer Data and for the transmission of Customer Data by Customer and Users to or through the Company Platform.  Customer represents and warrants that it has all rights necessary to transmit Customer Data or cause Customer Data to be transmitted to or through the Company Platform and covenants that the transmission of the Customer Data through the Company Platform, and the storage of such data on the Company Platform will not violate any laws, rules, regulations, policies or contractual commitments.

2.4    License to Customer Data.  Subject to the terms and conditions of this Agreement, Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to use the Customer Data for the proper management and administration of the Company, to provide the Company Services hereunder, and to satisfy the Company’s legal obligations. In addition, for clarity and without limitation, the Company shall be permitted to use aggregate information about the utilization of the Company Services by Customer and the Indirect Users.  For example, (i) number of Indirect Users served for a customer (the customer is not identified); (ii) number of Indirect User interactions (direct or indirect) with the Company Platform in a given time period; or (iii) counts of type of interactions (e.g., downloads of content; uploads of reports or data).  Customer also grants a perpetual license to the Company to use the Customer Data in an aggregate, de-identified form (“Anonymized Data”), but only at such time as the Customer Data comprises 2.5% or less of the data included in any particular aggregation.  For clarity, once anonymized, Anonymized Data does not constitute Customer Data.

2.5    Company Data.  Company owns all right, title and interest in any and all data (i) generated by Company, or (ii) provided by Company to Customer in connection with its operation of and provision of access to the Company Platform (“Company Data”).

2.6    Feedback.  Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Company Platform.  Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants Company a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

2.7    Customer Responsibilities.  Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Company Platform and notify Company promptly of any such unauthorized access or use of which it becomes aware,  (b) use the Company Platform only in accordance with any documentation provided by Company to Customer hereunder and applicable laws and regulations, and (c) reasonably and promptly cooperate with the Company in the implementation process and in resolving operational issues, including by coordinating activities between Company and Customer engineering and product personnel, responding to Company inquiries and providing necessary information.

2.8    Privacy and Security of Customer Data.

(a)      Customer will not input, upload, import or otherwise submit to the Company Platform and will require its Authorized Users not to input any Customer Data to which disclosure to or access by Company is prohibited under applicable privacy or confidentiality laws, rules or  regulations.

(b)      Company shall implement a data security program that includes appropriate physical, administrative, and technical safeguards meeting or exceeding industry standards for identifiable health information that is designed to (a) provide Customer Data maintained by Company with protections against  (i) anticipated threats or hazards to the confidentiality, security or integrity; or (ii) unauthorized disclosure, access to, or use; (b) ensure the Customer Data has been disposed of or has been made inaccessible in accordance with applicable law and industry standards; and (c) ensure that all employees and subcontractors of Company, if any, comply with all of the foregoing, as applicable.  Company agrees to provide notice to Customer no later than five business days after discovery of any unauthorized use or disclosure of Customer Data by the Company that would be considered a “breach” of “unsecured protected health information” (“Data Incident”) under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) if Customer was a “covered entity” as defined by HIPAA.  Company shall promptly take all reasonable and necessary actions to end the Data Incident, mitigate its impact and prevent recurrence. Company shall reasonably cooperate with Customer in the investigation of the Data Incident and shall promptly respond to Customer’s reasonable inquiries about the Data Incident. If there is a BAA (defined below) in effect between the Customer and the Company, this paragraph shall not apply.

(c)      At Customer’s direction at any time, and in any event upon termination or expiration of this Agreement, Company will, and will cause its representatives to, immediately cease use of the Customer Data and return the same to Customer and then destroy any and all residual copies of Customer Data (in whole or part), whether in hard copy or electronic format.  Company will ensure that Customer Data is destroyed securely and in accordance with applicable law. As requested, Company will certify its compliance with these procedures. To the extent that Company is unable to delete or destroy such Customer Data, then Company shall remain subject to the obligations set forth in the Agreement with respect to Customer.  Company acknowledges that any unauthorized use of the Customer Data may cause irreparable harm and injury to Customer for which there is no adequate remedy at law.  In addition to all other remedies available under the Agreement, at law or in equity, Company further agrees that Customer will be entitled to injunctive relief in the event Company uses the Customer Data in violation of, or in any way not expressly permitted by, this Agreement.  The Company is not required to destroy residual or backup copies (to the extent otherwise required by this paragraph) until the Company’s regular updating and administrative processes direct the review or deletion of such residual or backup copies.  Notwithstanding the foregoing, Company is entitled to retain Customer Data (i) to the extent required by legal or accounting requirements; or (ii) if Company’s legal counsel reasonable determines that retaining a copy of Customer Data is advisable in anticipation of litigation or investigation.  Customer is hereby required to promptly defend and indemnify Company from any claims arising from Company’s deletion of information in accordance with this paragraph, and the obligation to indemnify and defend shall survive termination of this Agreement.

2.9    Protected Health Information.  Simultaneously with the execution of the Order, unless the Company is not a Covered Entity or Business Associate, Company and Customer will enter into the Business Associate Agreement (“BAA”). Customer will not input, upload, import or otherwise submit to the Company Platform, and will require its Authorized Users not to input, any information to which disclosure or access is prohibited under applicable privacy or confidentiality laws, rules or regulations.  Capable will provide an integration with vendors selected by the Customer where the Customer engages the vendor and provides Capable access, however, if the vendor does not enter into a business associate subcontractor agreement with Capable and is not HIPAA compliant, Capable will not push any data to such vendor.  Customer shall be solely responsible for assuring its own HIPAA compliance and Capable shall have no responsibility for monitoring third parties to whom Customer may send data.  Therefore, any configurations or exports created or initiated by Customer are the sole responsibility of Customer and not Capable, and Capable shall not monitor the destinations of data that are directed by Customer.

3       AUTHORIZED USER AUTHORIZATION; AUTHORIZED USER ACCESS

3.1    Methods of Obtaining Authorized User Authorization.  Customer will obtain all necessary authorizations from Indirect Users for Company’s use, transmission and transfer of Customer Data regarding any applicable Indirect User through the Company Platform. Company will also obtain all necessary authorizations from any customer of Customer with respect to any Customer Data transferred or input by the Customer or on Customer’s behalf, into the Company Platform, permitting the Company to use, transmit and copy such Customer Data solely as contemplated herein.

3.2    Authorized User access to the Company Platform.  Customer agrees that it will not provide access to the Company Platform to any party that is not an Authorized User.  All Authorized Users must agree to terms and conditions as protective of the Company, the Company Platform and any Company Confidential Information as are the terms of this Agreement (the “Company Protections”) prior to accessing the Company Platform.  Customer will also require its Indirect Users abide by covenants to protect the Company’s intellectual property rights.  Customer will include substantially the following language in its agreements with Indirect Users, and Indirect Users must agree with the following as a condition of use of the Company Platform:

[Customer Name] contracts with third parties to provide services to [Customer Name].  These third parties are obligated to [ Customer Name] to maintain the privacy of any information they may receive in the course of providing services to [Customer Name], subject to applicable legal requirements.  [Customer Name]’s use of such third party services is also subject to a number of terms and conditions, some of which also apply to you, and you agree that your use of such third party services requires you to not attempt or do any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of third party services; (ii) modify, translate or create derivative works based on the third party services; (iii) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any third party services; or (iv) introduce any disabling or harmful software or data to any third party services.  All rights not expressly granted to you in our [terms of use with you] are reserved and retained by [Customer Name] or its licensors, suppliers, publishers, rightsholders, or other content or service providers, respectively. In addition, you agree that you will not claim any ownership of the intellectual property of any of such third party services, and that you will not attempt to obtain data or information about the function of such third party services, except as such data or information applies solely to [Customer Name]’s services to you or on your behalf in the normal course of business.  You are hereby notified that our third party service providers are intended third party beneficiaries of this paragraph.

4       FEES; PAYMENT TERMS

4.1    Fees; Payment Terms.  Customer agrees to pay to the Company the Platform Fee, Monthly Activation Fees, Pass Through Fees and Implementation Fees indicated on the applicable Order in accordance with the rate structure described in Exhibit A.  The Platform Fee shall be due in advance on a monthly basis.  The Monthly Activation Fee and Pass Through Fee shall be billed to Customer in arrears on a monthly basis. The Implementation Fee shall be billed immediately following the Order Effective Date and is due and payable within ten (10) days (the “Due Date”).  Except as specifically provided herein, Customer shall pay all amounts in each invoice within thirty (30) days after Customer’s receipt of the invoice (also the “Due Date”), without setoff or deduction, except with respect to legitimately disputed amounts.  In the event Customer fails to make any undisputed payment by the Due Date, Customer shall pay a late charge on all past due amounts at the rate of one and one-half percent (1.5%) per month, compounded monthly (or, if lower, the maximum rate allowed by law), plus any penalties, interest or other costs incurred by Company with respect to Pass Through Fees.  If Customer fails to pay amounts due, and Company initiates a lawsuit or arbitration proceeding for collection thereof and prevails, Customer shall also be obligated to pay all reasonable legal fees and costs of collection.

4.2    Net of Taxes.  All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively “Taxes”).  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company.  Company will not withhold any Taxes from any amounts paid by Customer.

4.3    Payment Processing.  Notwithstanding any amounts owed to Company hereunder, COMPANY DOES NOT PROCESS PAYMENT FOR ANY SERVICES. To facilitate payment via bank account, credit card, or debit card, we use Stripe, Inc. and its affiliates (“Stripe”), a third-party payment processor. These payment processing services are provided by Stripe and are subject to the Stripe terms and conditions and other policies available at https://stripe.com/legal and Stripe’s Global Privacy Policy available at: https://stripe.com/privacy (collectively, the "Stripe Agreements"). By agreeing to these Terms and Conditions, users that use the payment functions of the Company Platform also agree to be bound by the Stripe Agreements, as the same may be modified by Stripe from time to time.  You hereby authorize Stripe to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in payment for your use of the Company Platform. Please contact Stripe for more information. Company assumes no liability or responsibility for any payments you make through the Company Platform.

5       TERM, TERMINATION

5.1    Term.  The Agreement shall be binding on the Order Effective Date.  The Initial Term of the Agreement will be  Commence on the Order Effective Date and shall end one year after the Service Start Date.  Thereafter, unless the Agreement terminates earlier in accordance with the terms of the Agreement, the Agreement will automatically renew for successive one-year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party delivers to the other party written notice of the party’s intent not to renew the Term within the following time periods: (a) with respect to Customer’s notice to Company, at least thirty  (30) days prior to the end of the Initial Term or the then-current Renewal Term, as applicable, and (b)  with respect to Company’s notice to Customer, at least one hundred twenty (120)  days prior to the end of the Initial Term or the then-current Renewal Term, as applicable.

5.2    Termination; Effect of Termination.

(a)      In addition to any other remedies it may have, either party may also terminate the Agreement if the other party breaches any of the terms or conditions of the Agreement and fails to cure such breach within thirty (30) days’ notice (or ten (10) days in the case of nonpayment) after receiving notice thereof.

(b)      Upon termination of the Agreement, all rights granted to Customer hereunder and all obligations of Company to provide Customer with access to and use of the Company Platform will immediately terminate and (a) Customer will cease use of the Company Platform, (b) each Party will return or destroy all other copies or other embodiments of the other party’s Confidential Information, specifically including the Customer Data held by Company (to the extent required by Section 2.8(c)), which shall be transferred promptly and without additional charges to Customer or its designee in a standard data format. (If termination is on fewer than ten (10) days’ notice, Company shall have no less than ten (10) days in which to provide transfer.)(If Customer desires Company to provide Customer Data in other than a standard format, Customer shall pay Company’s standard rates in order to create such export data, and Company cannot assure completion of reformatting in any particular time period.)  In addition, Company shall reasonably cooperate with Customer to facilitate the transition of the services to a successor vendor.

(c)      Notwithstanding termination, (i) Customer will pay in full for the use of the Company Platform up to and including the last day on which access to the Company Platform is provided, and, (ii) in the event that Customer has prepaid Company, Company will return to Customer all amounts for unfulfilled services prior to such termination

5.3    Right to Suspend.  Company may temporarily suspend Customer’s access the Company Platform  if Company reasonably determines that: (a) there is a threat or attack on the Company Platform or other event that may create a risk to the Company, the Company Platform or Customer, (b) Customer’s use of the Company Platform or any Customer Data poses a security risk to the Company or any other Company customer or direct or indirect user of the Company’s Services, or (c) Customer is using the Company Platform for inappropriate, fraudulent or illegal activities (collectively, “Service Suspensions”).  Company will provide written notice of any Service Suspension to Customer and will provide updates regarding resumption of the Company Platform following any Service Suspension.  Company shall have no liability to Customer or any User arising from a Service Suspension permitted by this Section.

5.4    Survival.  Upon expiration or termination of the Agreement, all obligations in the Agreement will terminate, provided that Sections  2.1 (Company Platform), 2.2 (Customer Marks), 2.4 (License to Customer Data), 2.5 (Company Data), 2.6 (Feedback), 2.8 (Privacy and Security of Customer Data); 4 (Fees; Payment Terms), 5.2 (Termination; Effect of Termination), 5.4 (Survival), 6 (Confidentiality), 7.4 (Disclaimer), 8 (Limitations of Liability; Indemnification), and 10 (General) will survive.

6       CONFIDENTIALITY

6.1    Confidential Information. As used herein, “Confidential Information” means, subject to the exceptions set forth in this Section 6.1, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, financial information, strategies, technology, research and development, current and prospective customers, billing records, and non-public details of existing or future products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Company’s Confidential Information includes, without limitation, the Company Platform, Company Data and the terms of the Agreement.  Customer’s Confidential Information includes, without limitation, Customer Data (subject to the rights granted in Section 2.4).  Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of the Agreement by the Receiving Party.

6.2    Use, Disclosure and Protection of Confidential Information. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a party, and each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of the Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information.  Notwithstanding any provision of the Agreement, either party may disclose the terms of the Agreement, in whole or in part (a) to its employees, contracted personnel, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a party, sources of debt financing and/or subcontractors who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of the Agreement; and (b) as reasonably deemed by a party to be required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in the Agreement.  Upon the termination of the Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.

7       REPRESENTATIONS, WARRANTIES AND DISCLAIMER

7.1    Representations and Warranties.  Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into the Agreement and to perform its obligations hereunder; (b) the execution of the Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) the Agreement constitutes a legal, valid and binding obligation when signed by both parties.

7.2    Representation, Warranties and Additional Covenants of Parties.

(a)      Customer represents, warrants and covenants that it has and will have all rights necessary and full legal authority to (a) input, import, upload or submit Customer Data to the Company Platform or otherwise provide Customer Data to Company and (b) grant the rights in and to Customer Data granted in the Agreement.  Customer further represents, warrants and covenants that it will use the Company Platform solely for the purposes contemplated herein, and will not use the Company Platform to violate or in a manner that violates any applicable laws, rules or regulations.

(b)      Company represents and warrants that:  (i) it is the sole owner of and has all the necessary intellectual property rights in the Company Platform,  to grant the license under this Agreement; and (ii) the Company Platform does not infringe upon any patent, copyright, trade secret, or other proprietary or intellectual property right of any third party.

(c)      Company represents and warrants that the Company Platform will operate in material conformity with the API Documentation as provided by the Company from time to time.  The Company will not make material adverse changes in the functionality of the Platform except on not less than thirty (30) days notice.  If a material adverse change to functionality is due to any of (i) a requirement to comply with applicable law, or (ii) third party claims of intellectual property infringement, (iii) an action taken by a third party that is not under the reasonable control of Company or (iv) a change in circumstances not within the Company’s reasonable control, Customer’s sole remedy shall be to terminate this Agreement.  In order to exercise such right, Customer must provide notice within 30 days of such change, and termination shall occur on a date set by Customer, no fewer than ten (10) and no more than 90 days following the notice.  If there is a material adverse change in functionality not caused by the items identified in the previous paragraph, Company shall use best efforts to provide not less than ninety (90) days advance notice of such change, and Customer’s sole remedy shall be to terminate this Agreement.  In order to exercise such right, Customer must provide notice within 30 days of such change, and termination shall occur on a date set by Customer, no fewer than ten (10) and no more than 90 days following the notice.

(d)      Company represents and warrants that Customer will be provided commercially reasonable access to the Company Platform, and represents and warrants that it shall ensure reasonable efforts to ensure the Company Platform will operate in accordance with the uptime commitment set forth in Section 7.3. For purposes of this Agreement, utilization of any subcontractor shall be deemed performance by Company itself.  Company represents and warrants that the Customer Data maintained by the Company shall be separated from data of all of Company’s other customers in accordance with industry standards and shall not be accessible to any other customer.

7.3    Uptime.   Company will use reasonable efforts consistent with prevailing industry standards to provide the Company Platform in a manner that minimizes errors and interruptions in accessing the Company Platform.  The Company Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Company’s control.

7.4    Disclaimer.  CUSTOMER UNDERSTANDS AND AGREES THAT COMPANY IS NOT ENGAGED IN THE PRACTICE OF MEDICINE OR THE PROVISION OF HEALTHCARE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY PLATFORM IS PROVIDED STRICTLY ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY FURTHER DISCLAIMS ANY WARRANTIES AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE COMPANY PLATFORM OR AGAINST INFRINGEMENT.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT WARRANT THAT THE COMPANY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE COMPANY PLATFORM WILL BE SECURE OR UNINTERRUPTED.  NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.    

8       limitations of liability; iNDEMNIFICATION

8.1    Limitation of Liability.  THE PARTIES EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA; OR (IV) ANY OTHER MATTER RELATING TO THE COMPANY PLATFORM OR COMPANY SERVICES. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR MATERIAL WILLFULL MISCONDUCT RELATED TO THIS AGREEMENT, IN NO EVENT WILL A PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TWO TIMES (2X) THE AMOUNT CUSTOMER HAS PAID COMPANY IN THE TWELVE (12) MONTHS (IF AT ALL) BEFORE THE INCIDENT GIVING RISE TO THE LIABILITY, OR, IF TWELVE (12) MONTHS HAVE NOT PASSED SINCE THE EFFECTIVE DATA, AN AMOUNT THAT IS TWO TIMES (2X) THE AMOUNT CUSTOMER HAS PAID COMPANY IN THE TWELVE (12) MONTHS, PRORATED TO TWELVE (12) MONTHS.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER OR BE ENFORCEABLE WITH RESPECT TO CUSTOMER.  IF CUSTOMER IS DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICES, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

IF CUSTOMER IS A USER FROM NEW JERSEY, THE FOREGOING SECTIONS 7.4 (“DISCLAIMER” AND 8.1 (“LIMITATION OF LIABILITY”) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

8.2    Disclaimer of Consequential Damages and Limitation of Liability for Company’s Service Providers.  IN NO EVENT WILL COMPANY’S SERVICE PROVIDERS BE LIABLE TO CUSTOMER FOR DAMAGES OF ANY KIND ARISING UNDER OR RELATING TO THE AGREEMENT.

8.3    Independent Allocations of Risk.  EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

8.4    Indemnification by Company.  Company will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (including reasonable attorneys’ fees, including reasonable attorneys’ fees incurred in enforcing this provision) (“Liabilities”) that are payable to any third party or incurred by the Customer Indemnified Parties arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of a violation or breach by the Company of the representation in Section 7.2(b) (except for claims for which Company is entitled to indemnification under Section 8.5, in which case Company will have an indemnification obligations with respect to such claim only to the extent Company is not required to be indemnified by Customer).    Company will have no liability or obligation under this Section 8.4 with respect to any Liability to the extent such Liability is caused in whole or in part by (x) modification of the Company Platform by any party other than Company without Company’s express consent; (y) the combination, operation, or use of the Company Platform with other product(s), data or services where the Company Platform would not by itself be infringing; or (z) unauthorized or improper use of the Company Platform.  If the use of the Company Platform by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of intellectual property infringement, Company may at its option and expense (a) procure for Customer the right to continue using the Company Platform as set forth hereunder; (b) replace or modify the Company Platform to make it non-infringing so long as the Company Platform has at least equivalent functionality; (c) substitute an equivalent for the Company Platform or (d) if options (a)-(c) are not reasonably practicable, terminate the Agreement.  This Section 8.4 states Company’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

8.5    Indemnification by Customer.   Customer will indemnify, defend and hold Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) harmless from Liabilities that are payable to any third party or incurred by the Company Indemnified Parties arising from, directly or indirectly, any claim, demand or allegation by a third party arising from (a) the provision of health care services by a customer of the Customer, or the failure to provide health care services by a customer of the Customer; (b) the Customer or any customer of the Customer being a Covered Entity, Business Associate or Business Associate Subcontractor as those terms are defined under HIPAA; (c) the failure of the Customer or any customer of the Customer to obtain and retain documentation of all required authorizations or consents for the use or storage of information of Indirect Users through the Company Platform as contemplated herein; and (d) as provided in Section 2.8(c).

8.6     Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 4 or Section 5, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.

9       INSURANCE

Customer represents and warrants that it (or if applicable, all health care facilities, physicians and licensed professionals who furnish services through or on behalf of Customer) currently has in place, and will maintain on an ongoing basis, its or their own commercially reputable cyber security insurance policy with coverage for Customer’s acts and omissions and medical malpractice/professional liability insurance coverage. Customer agrees to provide, upon request, periodic attestations that such insurance policies are in place and to notify the Company immediately if such coverage is suspended, terminated, or discontinued.  Company represents and warrants that it currently has in place, and covenants that it will maintain on an ongoing basis, its own commercially reputable cyber security insurance policy with coverage limits not less than $1,000,000 for each occurrence and in the aggregate . Company agrees to provide, upon request, periodic attestations that such insurance policies are in place and to notify Customer immediately if such coverage is suspended, terminated, or discontinued.

10     GENERAL

Customer may not remove or export from the United States or allow the export or re-export of the Company Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.  Neither party may assign the Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided, however, that either party may assign the Agreement to an acquirer of or successor to all or substantially all of its business or assets to which the Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Any assignment or attempted assignment by either party otherwise than in accordance with this Section 10 will be null and void.  Both parties agree that the Agreement and the BAA are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of the Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever.  In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under the Agreement will be in writing and sent to the recipient’s address set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  Each party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship.  Only upon prior written approval of Customer not to be unreasonably withheld, delayed or conditioned, Company may mention Customer and the relationship between Company and Customer in Company’s marketing collateral, website, and other promotional and marketing materials.  (Customer hereby consents to being listed as a customer of the Company in any simple listing of Company’s customers generally.)  Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service (except for any payment obligations hereunder), in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).  Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event.  Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate the Agreement by giving written notice thereof to the other party.  Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. The Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions.  For all disputes relating to the Agreement, each party submits to the exclusive jurisdiction of  the state and federal courts located in New York,  New York, and waives any jurisdictional, venue, or inconvenient forum objections to such courts.  Customer acknowledges that any unauthorized use of the Company Platform may cause irreparable harm and injury to Company for which there is no adequate remedy at law.  In addition to all other remedies available under the Agreement, at law or in equity, Customer further agrees that Company will be entitled to injunctive relief in the event Customer uses the Company Platform in violation of the limited license granted herein or uses the Company Platform in any way not expressly permitted by the Agreement.