Partner Service Agreement

SaaS SUBSCRIPTION AGREEMENT

This SaaS Subscription Agreement (“Agreement”) is between PUREDI (“Licensor”) and the end user accepting this Agreement (“Licensee”) and is effective upon acceptance.

1. Definitions. As used in this Agreement, the following definitions shall apply:

  1. “Agreement” means these online terms of use, any Master Service Agreement (as defined below), and any materials available on Licensor’s website specifically incorporated herein by reference, as such may be updated by Licensor from time to time in its sole discretion.
  2. “Customer Data” means any data, information or material relating to Licensee submitted or provided by Licensee to Licensor through the use of the Services.
  3. “Licensed Program” means all of Licensor’s proprietary technology and documentation (including software, hardware, processes, user interfaces, algorithms, know-how, techniques, and other tangible or intangible technical material or information, and specifications describing the features, functionality or operation of the Services,) made available to Licensee by Licensor in providing the Services to Licensee.
  4. “Services(s)” means the online hosting, maintenance and support services and any other services or products provided by Licensor to Licensee as set forth on a Master Service Agreement.
  5. “Service Fees” has the meaning set forth in Section 5.
  6. “Master Service Agreement” means Licensor’s quote, invoice or Master Service Agreement evidencing a subscription for the Services, specifying the Services and the applicable Service Fees. Licensee will be bound by the terms of the Management Agreement.
  7. “Users” mean each of Licensee’s billable medical entities, officers, directors, owners, employees, contractors or agents who are authorized to use the Services on behalf of Licensee.

2. Services.

Subject to the terms and conditions of this Agreement, including the payment of all applicable Service Fees, Licensor agrees to use commercially reasonable efforts to (a) provide Licensee with the Services, and (b) provide commercially reasonable levels of security for the Services.

3. Grant of License; Title to Intellectual Property.

  1. Grant of License. Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee a nonexclusive, non-transferable, non-sub-licensable limited subscription-based license (the “License”) to access and use the Licensed Program for the number and type of Licenses set forth on a Master Service Agreement accepted by Licensor. Additional Licenses may be subscribed by Licensee pursuant to additional Master Service Agreements. The use of the Licensed Program and Services are for the exclusive use of Licensee and its Users and do not extend to third parties. Licensee is responsible for the use of the Licensed Program and Services by Licensee’s Users.
  2. License Use Restrictions. Licensee agrees to (a) use the Licensed Program solely for its own internal business purposes and agrees not to rent, lease, sublicense, time-share, or otherwise distribute the Licensed Program for resale, or to host applications to provide service bureau, time-sharing, or other computer services to third parties, or otherwise make available the Licensed Program to any third parties, and (b) not reverse-engineer, decompile, disassemble, modify, create derivative works of, or copy all or any part of the Licensed Program.
  3. Title to Intellectual Property. Licensee hereby acknowledges that all right, title and interest in and to the Licensed Program and all intellectual property rights therein, including patent, unpatented inventions, copyright, trademark, trade secret, proprietary information and technology used in or comprising the Licensed Program and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee to Licensor relating to the Services or the Licensed Program (collectively, the “Licensor Intellectual Property”) are owned by, and are vested in, Licensor (or its applicable licensors/suppliers). Other than as expressly set forth in this Agreement, no license or other rights in the Licensor Intellectual Property are granted to Licensee and all such rights are hereby expressly reserved by Licensor. Licensor Intellectual Property does not include any Customer Data.

4. Licensee Obligations.

  1. Access and Security Guidelines. Use of the Services is conditioned on Licensee obtaining and maintaining access to the internet, and all equipment necessary for proper operation of the Services. Licensee is required to maintain and use secure user names and passwords issued by Licensor for the access and use of the Services. Licensee shall be responsible for ensuring the security and confidentiality of such user names and passwords. Licensee shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and shall notify Licensor promptly of any such known unauthorized use or other known breach of security. Licensee is responsible for all activities that occur under Licensee’s user names and passwords. Licensee shall report to Licensor promptly and use reasonable efforts to stop immediately any copying or distribution of the Licensed Programs that is known or suspected by Licensee.
  2. Acceptable Use. Licensee shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Licensee’s use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data and in accordance with Licensor’s Acceptable Use Policy set forth on Schedule C attached hereto. Licensor reserves the right to update such policy as set forth therein. Any use of the Services in violation of Licensor’s Acceptable Use Policy shall be a material breach of this Agreement. Licensee agrees to defend, indemnify and hold Licensor harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from Licensee’s violation of this Agreement, state or federal laws or regulations, or any third party’s rights. This obligation will survive the termination of the Services.
  3. Customer Data. Licensee will be solely responsible for providing all Customer Data required for the proper operation of the Services. Licensee shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, including as outlined in Licensor’s Acceptable Use Policy. Licensor is under no obligation to review Customer Data for accuracy, acceptability or potential liability. Licensee grants to Licensor all necessary licenses in and to such Customer Data solely as necessary for Licensor to provide the Services to Licensee.

5. Term and Termination.

  1. Term.  Licensee shall be bound by the terms of this Service Agreement.
  2. Termination.  Licensee shall be bound by the terms of this Service Agreement.
  3. Effect of Termination. Upon termination of this Agreement for any reason, Licensee’s right to access the Services (and Customer Data) and use the Licensed Programs immediately ceases. Termination of this Agreement shall not relieve Licensee of its obligation to pay all Service Fees owing under any Service Agreement or otherwise under this Agreement. Upon expiration or termination, Licensor will make available to Licensee a file of the Customer Data in a mutually acceptable format selected by Licensor, as promptly is reasonably possible after such termination. Licensee agrees that Licensor shall not be liable to Licensee or any third party for any termination of the Services.

6. No Warranties.

No Warranties. LICENSOR MAKES NO WARRANTIES REGARDING THE SERVICES OR THE LICENSED PROGRAM PROVIDED HEREUNDER. LICENSEE ACKNOWLEDGES THAT LICENSOR’S SOLE OBLIGATION IS TO PROVIDE THE SERVICES IN ACCORDANCE WITH SECTION 2 AND THE SCHEDULES REFERENCED THEREIN. THEREFORE, THE SERVICES AND LICENSED PROGRAM ARE PROVIDED AND ACCEPTED BY LICENSEE “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. LICENSOR DOES NOT WARRANT THAT THE SERVICES OR THE LICENSED PROGRAM WILL MEET LICENSEE’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE ERROR-FREE, COMPLETELY SECURE, OR THAT ALL FAILURES OF THE LICENSED PROGRAMS WILL BE CORRECTED.

7. Quality and Accuracy of Available Information.

Licensee acknowledges that the information available from the use of the Services, Licensor’s systems and/or through the interconnecting networks may not be accurate. Licensor makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy or validity of the data and/or information available from or through use of the Services and such systems and networks. Use of information obtained from or through Licensor’s system and networks and the use of the Services are at Licensee’s sole and absolute risk.

8. Infringement Indemnity.

Licensor will defend, indemnify and hold Licensee harmless from all damages, awards, and costs (including reasonable attorneys’ fees) to the extent resulting from or arising out of any claim or action that alleges the Licensed Program directly infringes a United States patent or copyright, or constitutes misappropriation of a third party trade secret; provided, however, that Licensee promptly notifies Licensor in writing of such claim or action, reasonably cooperates with Licensor in its defense or settlement, and Licensor has sole control of the defense and all related settlement negotiations. In the event the Licensed Program becomes, or in Licensor’s opinion is likely to become, the subject of any claim or action, then Licensor will use commercially reasonable efforts at its sole option and expense, to (a) procure the right for Licensee to continue using the Licensed Program, (b) replace or modify the Licensed Program so it becomes non-infringing while remaining functionally equivalent, or (c) if option (a) or (b) is not reasonably available in Licensor’s judgment, Licensor may terminate the Services and Licensor will issue a refund of all fees paid by Licensee for the remaining unused balance of the Services period at the time of termination. Licensor will have no liability for any claim or action based upon (a) the combination, operation, or use of the Licensed Program with hardware, software, or other items not supplied by Licensor, (b) any alteration of the Licensed Program by Licensee or a third party, or (c) any modification of the Licensed Program made by Licensor pursuant to specifications, requirements, or designs provided by Licensee.

9. Limitation of Liability.

LICENSOR SHALL NOT BE LIABLE TO LICENSEE, ITS USERS, OR ANY THIRD PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSS WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY, OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE SERVICES OR THE LICENSED PROGRAM EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S LIABILITY HEREUNDER TO LICENSEE OR A THIRD PARTY, FROM ANY CAUSE OF ACTION WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE, EXCEED THE AMOUNTS PAID TO RESELLER FOR THE SERVICES HEREUNDER GIVING RISE TO THE CLAIM IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO THE CLAIM. THIS IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THIS AGREEMENT BY LICENSOR.

10. Confidentiality

Each party shall have access to information that is confidential to the other party (“Confidential Information”) including but not limited to with respect to Licensor, the Licensed Program and the Services, and with respect to Licensee, the Customer Data, and any other information which is not otherwise readily available in the public domain and specifically including all information marked “confidential”, and the pricing terms of this Agreement. The parties agree (i) not to make each other’s Confidential Information available to any third party, (ii) not to use each other’s Confidential Information except to perform this Agreement, (iii) to hold each other’s Confidential Information in confidence during the term of this Agreement and thereafter, and (iv) no adequate remedy at law exists for breach of this Section 11 and any such breach would cause irreparable harm to the non-breaching party whom shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it has at law or otherwise. Either party may make such disclosures as may be necessary by reason of legal, accounting or regulatory requirements beyond either party’s reasonable control provided the disclosing party first provides the other party with sufficient notice of such required disclosure so the other party has a reasonable amount of time to obtain a protective order. Confidential Information shall not include information that (i) is in the public domain through no act or omission of the other party, (ii) was in the other party’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure, or (iv) is independently developed by the other party.

11.  Business Associate Agreement.

Licensee acknowledges to have signed a Business Associates Agreement included in this Agreement or any other agreement signed pertaining to Puredi’s Services being provided. 

12. Force Majeure.

If Licensor’s performance of any obligation under this Agreement is prevented, restricted or interfered with by causes including failure or malfunction of Licensee-supplied equipment, disruptions of Internet protocol (“IP”) service through intermediate carriers other than Licensor, acts of God, explosions, vandalism, cable cut, storms, fires, floods or other catastrophes, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority, then Licensor shall be excused from such performance on a day-to-day basis during such restriction or interference.

13. Notices.

All notices required or permitted to be given hereunder shall be in writing and deemed given (a) when personally delivered, (b) one (1) day after delivered to an overnight courier guarantying next day delivery, (c) three (3) days after deposited in the United States mail, postage prepaid, sent certified or registered, or (d) when sent via email. All notices shall be addressed to the parties at the addresses specified above or to such other address as hereafter designated in writing by the applicable party in the manner provided in this Section 14 for the giving of notices.

14. Arbitration.

Any dispute arising out of or relating to this Agreement or its interpretation, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association as the exclusive method of dispute resolution. Any arbitration may, but need not be, administered by the American Arbitration Association. The arbitration shall be conducted by a single arbitrator with experience in resolving disputes concerning SaaS applications and agreed upon by the parties, or failing agreement one appointed by the applicable arbitration association.  The arbitration shall take place in the State of Delaware. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. No arbitrator will have the authority to award any relief or remedy in excess of or contrary to what is provided in this Agreement. The arbitrator’s decision and award will be final and binding, and judgment on the award rendered by the arbitrator may be entered into any court located in the State of Delaware (to the exclusion of all other courts). Costs of the arbitration shall be paid for as determined by the arbitrator.

15. General Provisions.

  1. Entire Agreement. This Agreement, together with the attached Schedules, constitutes the entire understanding and agreement between Licensee and Licensor with respect to the subject matter hereof and supersedes all proposals and prior agreements and understandings, oral or written, and any other communications between the parties regarding this subject matter. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto (and their respective successors, legal representatives and permitted assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement.
  2. Assignment; Subcontract. No part of this Agreement may be assigned without the prior written consent of the other party except either party may assign this Agreement without prior written consent in the event of a merger, a reorganization, a sale of all or substantially all of its assets or a similar event. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns or as otherwise agreed to in any other written agreement.
  3. No Amendment or Waiver. No provision of this Agreement will be deemed waived, amended or modified unless made in writing and signed by both parties. No waiver of rights shall constitute a subsequent waiver of any rights whatsoever. The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision.
  4. Severability. The provisions of this Agreement are severable and any provision determined to be void or unenforceable shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of this Agreement and such invalid provision shall be replaced with an enforceable provision which achieves to the greatest extent possible the parties’ original intent.
  5. Remedies. No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.
  6. Execution and Counterparts. This Agreement may be executed in writing in counterparts or the terms and conditions accepted electronically by the parties in counterparts, which in either case taken together shall constitute one legal instrument.
  7. Attorneys’ Fees. If a proceeding is brought for the enforcement of this Agreement or because of any alleged or actual dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred in such action or proceeding in addition to any other relief to which such party may be entitled.
  8. Governing Law. This Agreement shall be governed by the State of Delaware without regard to conflicts of law principles under Delaware law or any other state’s laws.
  9. Publicity. Licensee does not authorize or permit Licensor to use Licensee’s name in customer lists and other promotional materials naming Licensee as a customer of Licensor and a user of the Services or in any other manner.

Schedule C

Acceptable Use Policy

This Schedule is part of the SaaS Subscription Agreement (the “Agreement”) entered into by and between Licensor and Licensee as such terms are defined in the Agreement.

This Acceptable Use Policy (“Policy”) outlines unacceptable uses of the Services. Licensor may make reasonable modifications to this Policy from time to time by posting a new version of this document on the Licensor’s web site at http://www.puredi.com/.

The Policy:

Licensee agrees to use the Services in accordance with all applicable local, state and federal laws, and this Policy which shall specifically include, as determined by Licensor in its reasonable judgment, NOT using the Services to:

  1.  conduct any business or activity or solicit the performance of any activity that is prohibited by law, tortuous, or interferes upon the use of Licensor’s system by other licensees and customers;
  2. disseminate, display, send, transmit or receive any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, malicious, or violent, regardless of whether the material or its dissemination is unlawful;
  3. disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email including unintended sending of unsolicited commercial email due to unauthorized access to Licensee’s use of the Services, whether or not the recipient wishes to receive such mailings;
  4. access, send, receive, display, disclose, or store any content in violation of any copyright, right of publicity, patent, trademark, service mark, trade name, trade secret or other intellectual property right or in violation of any applicable agreement, or without authorization;
  5. create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication;
  6. export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
  7. interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which Licensee does not have authorization to access or at a level exceeding Licensee’s authorization;
  8. disseminate or transmit any virus, worms, trojan horse or other malicious, harmful or disabling data, work, code or program;
  9. engage in any other activity deemed by Licensor to be in conflict with the spirit or intent of the Agreement or any Licensor policy as examples listed in this Policy are not exhaustive.

Failure to Comply:

Failure to comply with this Policy in Licensor’s reasonable judgment may result in the immediate termination of Services, responding to law enforcement requests, or any other action deemed necessary by Licensor in order to protect its network, customer relationships, and commitment to the highest possible quality of service. Licensor will cooperate with law enforcement in cases where the Services are being used for any suspected illegal activity.

Reporting Violations:

Violations of this Policy are unethical and may be deemed criminal offenses. Licensee shall report to Licensor any information Licensee may have concerning instances in which this Policy has been or is being violated. Licensor may at any time initiate an investigation of any use of the Services for compliance with this Policy and Licensee agrees to cooperate.

Malicious Activity:

Intended: Attempts to exploit other devices or services on and off of Licensor’s hosted service without the permission or implied permission of that party are not permitted. Violations of system or network security may result in criminal and civil liability. Licensor will cooperate with law enforcement if a criminal violation is suspected. Licensor will limit any traffic from the offending device or network immediately.

Unintended: Licensor will notify customers of an exploited device being used for potential malicious activity. If the activity is causing severe damage or strain to other devices or networks, Licensor will limit traffic to and from that device immediately. Otherwise Licensor will notify the customer and give a reasonable amount of time to secure the device before limiting traffic to and from that device.