PROMPT COMPENSATION TERMS AND CONDITIONS
These Terms and Conditions for Prompt Compensation (formerly known as OnusOne) are incorporated into and made part of the Agreement (as defined in the: (1) Order Form executed by the parties; or (2) clickthrough terms agreed to through the Platform (the “Platform Terms”)) and govern Customer’s use of the compensation modeling offering provided by Pay-For-Performance Solutions, LLC (“Company”). Terms not defined herein shall have the definitions set forth in the Order Form or Platform Terms.
1. Definitions
1.1. “Active Employee” means an Employee who has accessed the Platform at least one (1) time.
1.2. “Administrative User” means an End User who is allowed to access the Platform solely for administrative purposes on behalf of Customer.
1.3. “Affiliate” means any other person or entity directly or indirectly controlling, controlled by, or under common control with such specified party including the power to, directly or indirectly, direct or cause the direction of management or policies of a person or entity, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.
1.4. “Ancillary Workforce Member” means an individual whose Performance Data is loaded into the Platform to be Processed through the Subscription Services to help to model the compensation of another Employee.
1.5. “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, whether or not marked or otherwise identified as “confidential” (or words of similar import), including, but not limited to, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, the Services, Documentation, and Implementation Deliverables are Company’s Confidential Information, and the Customer Data and Customer Property are Customer’s Confidential Information.
1.6. “CORE” means the electronic medical record software-as-a-service offering provided by Prompt.
1.7. “Customer Property” means any Customer-specific technology or Customer-specific business processes that are specifically designated as Customer-owned property in a written agreement signed by the parties. For clarity, Customer Property does not include the Services, Documentation, Tools, or any intellectual property owned or developed by Company.
1.8. “Documentation” means those user or reference manuals or other written materials, including, without limitation, the Training Materials, that Company makes available to Customer with respect to use of the Services.
1.9. “Employee” means an individual who provides services for or on behalf of Customer and whose compensation information is to be, or has been, loaded into the Platform to be Processed through the Subscription Services.
1.10. “End Users” means Customer’s respective employees, independent contractors, subcontractors, or other agents and representatives, who are authorized by Customer to access the Services on Customer’s behalf, provided, that in no event shall Customer authorize any End User of a competitor of Company or its Affiliates to access or use the Services. End Users are broken up into two (2) different categories: (A) Administrative Users, and (B) Employees.
1.11. “Estimated Monthly Fees” are equal to the Minimum Monthly Fee.
1.12. “Go-Live Date” means the date designated as such on the Order Form, or otherwise agreed to in writing by the parties.
1.13. “Inactive Employee” means: (a) an Employee who has not yet accessed the Platform; or (b) an Ancillary Workforce Member.
1.14. “Internal Business Purposes” means the use of any of the Services, as applicable, only for Customer’s internal business use with Customer’s systems, networks, devices and data. This use does not include, and expressly prohibits, use of the Services with Customer’s systems, networks or devices as part of services Customer provides to, or on behalf of, any third party.
1.15. “Minimum Monthly Fee” means the number of Employees who have been loaded into the Platform as of the Go-Live Date multiplied by the corresponding Inactive Employee Rate (in each applicable Employee Tier).
1.16. “Minimum Term Service” means a Service where, other than due to an uncured breach pursuant to section 15.2.1, Customer does not have a termination right prior to the end of the Initial Term or any subsequent Renewal Term. The Term “Minimum Term Service” includes the Services.
1.17. “Monthly License Fees” means the amount payable by Customer each month calculated as the greater of the Minimum Monthly Fee or the Utilization Monthly Fee.
1.18. “Performance Data” means information related to the performance of an Ancillary Workforce Member.
1.19. “Platform” means Company’s proprietary platform made available over the internet through which Customer and its End Users can access and use the Services.
1.20. “Process” means to take any action or perform any operation or set of operations that the Services are now or hereafter capable of taking or performing on any documents, graphics, materials, or other data, information, and other content, including, without limitation, to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise generate, provide, or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
1.21. “Prompt” means Prompt Therapy Solutions, Inc.
1.22. “Services” collectively means the Subscription Services, Implementation Services, and Beta Services provided to Customer by Company.
1.23. “Subscription Services” means the software-as-a-service offering which is hosted by Company or its hosting providers, and which is accessed by Customer and its End Users via the internet.
1.24. “Term” means the period commencing on the Go-Live Date and continuing for the Initial Term and any Renewal Term, as set forth in Section 15 below.
1.25. "Termination Fee” means the amount payable by Customer upon the early termination of the Subscription Services, except where such termination is permitted without penalty under the terms of the Agreement, which shall be calculated as the sum of: (a) the Estimated Monthly Fee for the Subscription Services multiplied by the number of months remaining in the then-current Term (whether the Initial Term or a Renewal Term, as applicable at the time of termination); plus (b) any outstanding balance unpaid by Customer for Services rendered by Company prior to the effective date of termination.
1.26. “Territory” means the United States.
1.27. “Total Employees” means the total number of Active Employees and Inactive Employees.
1.28. “Training Materials” means any training and other implementation documents or other materials provided as part of the Implementation Deliverables.
1.29. “Utilization Monthly Fee” means the sum of: (a) the number of Active Employees in each Employee Tier multiplied by the corresponding Active Employee Rate; plus (b) the number of Inactive Employees in each Employee Tier multiplied by the corresponding Inactive Employee Rate.
2. Services
2.1. Subscription Services. To the extent included in an Order Form or otherwise activated by Customer through the Platform, and subject to Customer’s compliance with the terms and conditions of the Agreement, including, without limitation, all applicable Documentation, Company grants to Customer a non-exclusive, non-sublicensable, non-transferable license for Customer and its End Users to access remotely and use the Subscription Services solely in the Territory during the Term and solely for Customer’s Internal Business Purposes. Customer will be solely responsible and liable for any breach of the Agreement by End Users or any other third party using the Services through Customer’s account, whether or not such use was authorized by Customer. Company shall have the right to disable or terminate access by any End User that Company determines in its sole discretion does not meet Company’s information security standards and/or comply with all obligations regarding the use of the Services.
2.2. Implementation Services. Company will use commercially reasonable efforts during the period from the Effective Date through the Go-Live Date (the “Implementation Period”) to provide Customer the initial training, enrollment support, and other initial onboarding and basic implementation support services explicitly described in the Agreement, as well as access to related Training Materials and other Implementation Deliverables, as applicable (collectively, the “Implementation Services”).
2.2.1. Training Materials. Company will provide Customer access to the Training Materials, including training modules and a checklist of tasks that Customer is required to complete during the Implementation Period. All electronic and hard copy versions of the Training Materials are provided for Customer’s internal training purposes only. Customer may not use the Training Materials to replicate or attempt to perform the training or to develop or attempt to develop any of the products described in such Training Materials. Customer may not record, film, stream, or otherwise capture any performance or aspect of Company’s training or other Implementation Services. Training Materials are not subject to any maintenance, support, or updates.
2.2.2. Onsite Training. If the parties agree to onsite training during the Implementation Period, Customer is responsible for providing appropriate training facilities for the training delivery, including without limitation, Internet connectivity, projector equipment, computers, and other reasonable classroom amenities, which shall be suitable for each End User to access the Services. Customer is responsible for all costs and expenses incurred by Company for travel, meals, and lodging to provide the onsite training in addition to any applicable Implementation and Training Fees agreed to in writing by the parties.
2.3. Beta Services. Company may provide Customer with the option to participate in early access programs with Company whereby Customer may be permitted to use alpha, beta, or pre-release services, products, features, and documentation (“Beta Services”). Beta Services will be identified in the Platform or otherwise communicated to Customer. Notwithstanding anything to the contrary contained in the Agreement, Beta Services are not generally available and may contain bugs, errors, or defects. Company reserves the right to change features of Beta Services from time to time, including without limitation, moving features from Beta Services to other Services. Company may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Company will use reasonable efforts to notify Customer (whether through the Platform or otherwise) if a service, product, feature, or documentation that was previously identified as a Beta Service is no longer deemed to be a Beta Service.
2.4. Third-Party Services. Company may provide Customer access to certain third-party products and services incorporated into the Services whether enabled as of or after the Go-Live Date (“Third-Party Services”). Third-Party Services may be subject to additional terms and conditions of Company and/or the applicable Third-Party Service provider. If Customer does not agree to abide by the applicable terms for any such Third-Party Services, then Customer is prohibited from installing, accessing, or using such Third-Party Services.
2.5. Documentation. Subject to the terms and conditions of the Agreement, Company grants to Customer a non-exclusive, non-sublicensable, non-transferable license for its End Users to use Company’s then-current Documentation made generally available by Company to its customers regarding the Services, whether in electronic or hard copy form, during the Term, solely for Customer’s and its End Users’ Internal Business Purposes in connection with its and their use of the Services.
2.6. Employment/Wage Payment Laws. Customer understands and agrees that Customer is solely responsible for ensuring its, and its employees, contractors, and End Users, compliance with all applicable federal, state and local employment laws and regulations (“Employment Laws”), including, without limitation, that Customer’s employees, contractors, and End Users, are classified, paid and scheduled in accordance with Employment Laws. The parties agree and acknowledge that Company does not provide legal counsel, nor does it guarantee or imply that use of the Services will lead to, or assist with, Customer’s compliance with any Employment Laws. It is up to Customer, if Customer so desires, to consult with its own independent legal counsel to ensure that, in reviewing and implementing any payroll determinations provided by the Services, Customer complies with applicable Employment Laws and makes any necessary adjustments to the payroll determinations relating to employee classifications, pay practices and schedules to ensure such compliance. Company does not warrant that the payroll determinations supplied by the Services will comply with Employment Laws.
2.7. Non-Exclusive Provider. Provided that Company does not use any Customer Property except as permitted herein or as otherwise authorized by Customer, nothing in the Agreement shall be construed as precluding or limiting in any way the right of Company to provide consulting, development, or other services or deliverables of any kind to any other individual or entity (including, without limitation, providing other services or deliverables that are the same as or similar to any Services and/or deliverables hereunder).
2.8. Discontinuation of Services. Company does not guarantee that any Services will remain available to Customer for use or renewal, and any Services may be discontinued at Company’s sole discretion. If Services are discontinued by Company, Customer will receive a prorated credit for any prepaid fees based on the effective daily rate of the most recent fees paid by Customer for the subscription multiplied by the number of days remaining in the subscription after the last date the discontinued Services are available. Company will provide Customer thirty (30) days’ advance written notice of any discontinuation of Services.
2.9. Additional Limitations. Customer acknowledges and agrees that qualified personnel of Customer shall review for accuracy all data, information, and other content provided on or through the Services.
2.10. Activation by Customer. Company may allow Customer to activate and/or increase usage of certain Services through the Platform (which may include, without limitation, the ability to add Employees). Any Services activated by Customer through the Platform will be subject to the terms of the Agreement, including applicable fees, and will continue for the Term set forth in the Order Form or agreed to through the Platform, unless earlier terminated in accordance with the Agreement.
3. Customer Obligations/Permissible Use/Restrictions.
3.1. Subject to Customer’s payment obligations, Customer may access and use the Services only to Process the: (A) compensation data of Employees, and (B) Performance Data of Ancillary Workforce Members.
3.2. Customer and its End Users may not use the Services, Documentation, or Implementation Deliverables for any purposes beyond the scope of the access granted in the Agreement, and such use is also subject to all applicable Documentation, including, without limitation, with requirements governing Customer’s use of the Platform as set forth in the Documentation.
3.3. Prior to the Go-Live Date, Customer will fulfill all obligations communicated in writing by Company, including, without limitation, completing all training requirements communicated in writing by Company. Customer acknowledges that there are various steps that must be completed during the Implementation Period (each a “Required Implementation Step”). Customer will provide full cooperation and fulfill its obligations related to each Required Implementation Step in advance of the Go-Live Date. For clarity, and not in limitation of the foregoing, the initial Required Implementation Step will include Customer providing Company with a roster, that includes, among other items, a list of Employees to be loaded into the Platform (the “Initial Roster”).
3.4. Customer shall not at any time, directly or indirectly, and shall not permit any End User or other third party to: (a) permit any third party other than an End User to access or use the Services, Documentation, or Implementation Deliverables; (b) access or use the Services, Documentation, or Implementation Deliverables by any means (including, without limitation, by use of robots or other automated means) other than solely via the means provided by Company, unless and solely to the extent expressly approved by Company in writing; (c) decompile, disassemble, reverse engineer, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, Documentation, or Implementation Deliverables in whole or in part; (d) copy, modify, or create derivative works of the Services, Documentation or Implementation Deliverables, in whole or in part; (e) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, Documentation, or Implementation Deliverables except as expressly permitted in the Agreement; (f) use any Services, Documentation, or Implementation Deliverables or allow the transfer, transmission, export, or re-export of any Services, Documentation, or Implementation Deliverables, or any portion thereof, in violation of Applicable Law; (g) remove any proprietary notices, warning notices, or disclaimers from any part of the Services, Documentation, or Implementation Deliverables, including without limitation, as included on or embedded in any screen displays, or with any other products or materials provided by Company hereunder; or (h) use the Services, Documentation, or Implementation Deliverables in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law.
3.5. Under no circumstances will Company be liable or responsible for any use, or any results obtained by the use, of the Services, Documentation, or Implementation Deliverables in conjunction with any products, services, software, or hardware that are not provided by Company and all such use will be at Customer’s sole risk and liability. End User login credentials are for Customer’s designated End Users only and are assigned on an individual End User basis. Login credentials may not be shared among multiple individuals, and Customer will not, and will not allow any End User to, share login credentials in violation of the Agreement. For clarity, Customer acknowledges that the use of robots or similar automated tools is generally not permitted under the terms of the Agreement unless expressly approved by Company in writing, and any significant utilization (as determined by Company in its reasonable discretion) of the Services resulting from the use of robots or similar automated tools, regardless of whether Company has approved such use, may result in increased utilization-based fees consistent with the pricing terms in effect at such time under the Agreement, as determined by Company in its sole discretion.
4. Availability. Company will use commercially reasonable efforts to make the Subscription Services (excluding Beta Services) available for remote access 99% of the time for each month of the Term, excluding Excused Outages (“Availability”). Downtime as a result of any causes beyond the control of Company, including without limitation, such downtime caused or contributed to by any of the events or issues noted below, are excluded from Availability calculations (collectively, “Excused Outages”):
4.1. Customer’s environment affecting connectivity or interfering with the Services, including without limitation, Customer’s telecommunications connection or any other Customer software or equipment; Customer’s firewall software, hardware, or security settings; Customer’s configuration of anti-virus software or anti-spyware or malware software; or operator error of Customer;
4.1.1. Any third-party software, hardware, or telecommunication failures, including without limitation, Internet slow-downs or failures;
4.1.2. issues related to third party domain name system (DNS) errors or failures;
4.1.3. force majeure events;
4.1.4. scheduled maintenance of the Services, conducted on a regular basis, of which Company will use commercially reasonable efforts to give Customer a minimum of forty-eight (48) hours advanced notice by email or other pre-approved notification; and
4.1.5. emergency maintenance of the Services, not to exceed four (4) hours in any month, for which Customer may not receive advanced notice.
If Company fails to achieve the Availability requirement, Company will use commercially reasonable efforts to correct the interruption as promptly as practicable. If Company fails to achieve the Availability requirement in three (3) consecutive months during the applicable Term, Customer is required to notify Company of such, and, upon receipt of such notice and confirmation by Company, Company will provide Customer a credit in the amount of five percent (5%) of the Monthly License Fees paid by Customer for the Subscription Services during the three- (3-) month period in which Company failed to meet the Availability requirement. The credit will constitute Customer’s sole and exclusive remedy and Company’s sole and exclusive liability for failure to achieve the Availability requirement.
5. Information Security/Customer Endpoint Software Security. Company will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and Customer Data consistent with any law applicable to the Services. Customer is solely responsible for maintaining endpoint security software on its systems and hardware, and Company will have no liability for failures that result from Customer’s breach of such obligation.
6. Support and Maintenance.
6.1. During the Term, Company will provide Customer with reasonable support during Company’s then-current business hours. Company will provide customer service updates and bug fixes that Company in its sole discretion makes generally available to its other similarly situated customers at no charge. However, Customer is not entitled to receive updates or new releases that include new or different functionality for which Company imposes an additional charge to its customers. Such new or different functionality may be purchased by Customer, in its discretion, at Company’s then-current pricing. Company will use commercially reasonable efforts to correct reproducible failures of the Services to perform in substantial accordance with their then-current Documentation.
6.2. Customer shall comply with any Company-provided Documentation and directions, including, but not limited to: any instructions interacting with Company when requesting and/or receiving support; working with Customer’s assigned Client Success Manager; reviewing, acknowledging, and fulfilling Customer’s obligations; discussing questions about the Services and/or Customer’s obligations under the Agreement; and providing any Company-requested documentation, information, data, and/or materials in a timely manner. Customer and its End Users will not act in an abusive or disrespectful manner when interacting with Company’s support personnel.
7. Proprietary Rights.
7.1. Generally. Customer acknowledges and agrees that (a) all Services, Documentation, and Tools (defined herein), are protected by the intellectual property rights of Company and its vendors and licensors; and (b) Company owns all right, title, and interest in and to (i) the Services, Documentation, and Tools, (ii) all deliverables, work product, and results provided in connection with the Services (including without limitation, all Documentation and other documents, materials, work product, and deliverables created or provided by or on behalf of Company in connection with Implementation Services, but excluding any Customer Property and Tools (collectively, “Implementation Deliverables”)), and (iii) any improvements, enhancements, or modifications made to the Services, Documentation, and Tools, whether in connection with or independently of the Agreement; in each case of the foregoing ((i), (ii), and (iii)), together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services or any other of the foregoing. With respect to Third-Party Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to such Third-Party Services.
7.2. Tools. Notwithstanding any other provision of the Agreement, nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, materials, know-how, techniques, and expertise (“Tools”) used by Company to develop or provide the Services or Implementation Deliverables under the Agreement, and to the extent such Tools are delivered with or as part of such Implementation Deliverables, they are licensed, not sold or assigned, to Customer, on the same terms and subject to the same conditions as the Implementation Deliverables under the Agreement. All Tools are proprietary to Company or its licensors and are Company’s Confidential Information.
7.3. Customer Property. Customer shall retain ownership of all rights, title, and interest in and to any Customer Property. Customer hereby grants and agrees to grant Company the right to use Customer Property solely for the purpose of providing the Implementation Services or other Services to Customer under the Agreement.
8. Data Rights.
8.1. Customer Data. Customer hereby irrevocably grants all rights and permissions in or relating to the documents, information, graphics, data, materials, and other content, in any form or medium, that Customer or End Users input into the Services or that are collected, downloaded, or otherwise received, directly or indirectly, from Customer or an End User by or through the Services or that are derived from the Processing of such documents, information, graphics, data, materials, and other content by or through the Services (collectively, “Customer Data”), as are necessary or useful to Company to enforce the Agreement and exercise Company’s rights and perform Company’s obligations hereunder (including, but not limited to, Processing Customer Data to provide the Services, and developing, modifying, improving, supporting, customizing, and operating the Services and any associated software, products, and technology), and otherwise as required or authorized by Applicable Law. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide Customer Data to Company for use as contemplated under the Agreement. Except for the rights and licenses expressly granted under the Agreement, Customer shall retain ownership of all rights, title, and interest in and to any Customer Data, and nothing contained in the Agreement will be construed as granting Company any right, title, or interest in the Customer Data.
8.2. Product Development Data; Aggregated Data. Without limiting the generality of the foregoing, Company may derive information, data, and content from Company’s Processing (including, but not limited to, as such information, data, and content may be Processed by or through the Services) of such Customer Data for general product research and development purposes, including, but not limited to, creating new products, services, or components not specific to a given Service or to Customer (such purposes, “Product Development”, and the information, data, and content derived therefrom, “Product Development Data”). Customer acknowledges and agrees that Company shall retain ownership of all rights, title, and interest in and to any (i) statistical and other aggregated data derived from Customer’s use of the Services (the “Aggregated Data”), and (ii) Product Development Data, excluding any information identifying Customer or any End User or other identifiable individual, or which otherwise reveal Customer Confidential Information except as otherwise expressly permitted under the Agreement or in accordance with Applicable Law, provided, that all Product Development Data and Aggregated Data shall be de-identified and aggregated in accordance with Applicable Law. For clarity, Customer Data does not include Aggregated Data or Product Development Data.
8.3. EMR Data. This Section 8.3 shall apply to Customer if Customer licenses CORE. The Parties agree and acknowledge that, in order to provide the Services, it would be beneficial for Company to have access to certain Customer information processed through Customer’s electronic medical record. Customer hereby grants Company the right to access CORE on Customer’s behalf in order to gain access to certain Customer data that is processed through CORE, but excluding any Protected Health Information, as such term is defined in the Health Insurance Portability and Accountability Act (“HIPAA”), as amended and published at 45 C.F.R. Parts 160 and 164 (the “Prompt EMR Data”). Company may use such Prompt EMR Data to provide the Services to Customer. The Prompt EMR Data accessed and processed by Company will be based upon which compensation structure(s) that the Customer elects through the Services.
8.3.1. Customer represents and warrants that it has the right to allow Company to access CORE and obtain and use such Prompt EMR Data as set forth herein.
8.3.2. The Parties agree and acknowledge that Company has no ability, nor obligation, to confirm the accuracy of the Prompt EMR Data and disclaims any and all liability related to Company’s use of, or Customer’s reliance upon, the Prompt EMR Data for Company to provide, or Customer to receive, the Services.
9. Feedback. Customer acknowledges and agrees that Company shall own all right, title, and interest in and to any suggestions, comments or other feedback (collectively, “Feedback”) provided by Customer or any End User to Company with respect to its Services and other products and services. Customer agrees that providing any Feedback is voluntary and not a requirement pursuant to the Agreement.
10. Fees
10.1. Fees. Customer will pay Company the fees associated with the Services as described in the Order Form and/or Platform. Customer will be charged: (A) during the Implementation Period, a one-time, initial fee during the first month of the Implementation Period, along with a flat monthly fee for each month of the Implementation Period following the first month; and (B) starting upon the Go-Live Date, the Monthly License Fees. For clarity, the Monthly License Fees may be more than the Minimum Monthly Fee, but they will never be less than the Minimum Monthly Fee. Customer will not be charged for Administrative Users. For clarity, and not in limitation of the foregoing, Customer may have the ability to add certain Services, and/or increase its utilization of certain Services, through the Platform, without entering into an Order Form. Customer is obligated to pay for such Services whether Customer enters into an Order Form or adds, or increases, Services, through the Platform. Except as expressly set forth in the Agreement, all fees are non-refundable.
10.2. Fees Beginning on Go-Live Date. If Customer’s Employees have not been loaded into the Platform by the Go-Live Date, the Monthly License Fees will be based on the number of Employees included in the Roster multiplied by the corresponding Inactive Employee Rate (in each applicable Employee Tier). The Monthly License Fees will be as stated in this Section 10.2 until the time that the Employees are loaded into the Platform.
10.3. Price Increases. Fees for Subscription Services will remain the same for the Initial Term. After the Initial Term, fees for the Subscription Services shall automatically be subject to an increase adjustment equal to five percent (5%) for each full year included in the Initial Term. Following such adjustment, the fees may be increased by up to five percent (5%) annually, effective on each anniversary of the end of the Initial Term. Company may increase prices for Third-Party Services at any time upon sixty (60) days’ prior written notice to Customer.
10.4. Payment. Company will invoice Customer on a monthly basis. Customer will pay all invoiced amounts in full within 30 days following the applicable invoice date. All fees will be paid by Customer directly to Prompt, unless directed otherwise by Company. To the extent Customer completes the ACH Authorization, all payments will be automatically processed and charged to the ACH information provided in the ACH Authorization. Customer will be charged a Fifty Dollar ($50) processing fee per check if paying by physical check. Credit card payments will be subject to a processing charge of three percent (3%).
10.5. Monthly Charges Based on Utilization. Company expressly reserves the right to audit Customer’s utilization and adjust billing for the immediately prior month based on utilization as necessary, in its sole and absolute discretion. Within five (5) business days of receiving any invoice detailing Customer’s utilization of the Services, Customer shall have the right to submit a written inquiry regarding such invoice. Company shall respond with evidence of such utilization calculation within ten (10) business days of Customer's inquiry.
10.6. Late Payments/Excessive Use. Payments not made within the time periods set forth in the Agreement will be subject to late charges equal to the lesser of 1.5% per month of the overdue amount or the maximum amount permitted under Applicable Law. If Company discovers that Customer’s use of the Services exceeds Customer’s permitted use of the Services in accordance with the Agreement (including, without limitation, the number of authorized End Users set forth in the Order Form or Platform), then Customer will be responsible for payment of all additional fees incurred for such excess use as a true-up based on the applicable rates set forth in the Order Form or Platform, including any interest due for late payments with respect to such back-payment, and all such amounts will be immediately due and payable by Customer to Company. If Customer is over ninety (90) days late on any payment owed under the Agreement, Company reserves the right to require ACH payment for all future payments, and if Customer objects to such ACH payments, Company may terminate the Agreement immediately without penalty.
10.7. Taxes. In addition to any other payments due under the Agreement, Customer agrees to pay, indemnify, and hold Company harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under the Agreement; excluding, however, income taxes on profits which may be levied against Company.
11. Warranties
11.1. Customer Warranty. Customer represents and warrants that: (a) it has full power, capacity, and authority to enter into the Agreement and to grant the rights and licenses set forth in Section 8 (Data Rights); (b) any Customer Data provided by Customer to Company for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state, and local laws, rules, and regulations (collectively, “Applicable Law”); (c) it will ensure the accuracy of any Customer Data used or generated in connection with the Services, and (d) its use of the Services will be in compliance with the Agreement and all Applicable Law.
11.2. Company Warranty. Company warrants during the applicable Term that: (a) the Subscription Services (excluding Beta Services) will substantially comply with the Documentation; (b) it will use commercially reasonable efforts to screen the Subscription Services (excluding Beta Services) for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (c) it will comply with Applicable Law in the performance of its obligations under the Agreement. In the event of a breach of the warranty in clause (a) of this Section 11.2 (Company Warranty), Customer’s sole and exclusive remedy will be for Company to use reasonable efforts to reperform the non-conforming Company Service, or if Company is unable through reasonable efforts to correct such non-conforming Company Service, Customer may elect to terminate the nonconforming Company Service and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Company Service. The warranties contained in this Section 11.2 will not apply if: (a) Customer’s use of, or access to, the Subscription Services is not in compliance with the Documentation or any other term set forth in the Agreement; (b) Customer alters or modifies the Subscription Services; (c) Customer's computers, system, or data, malfunction or otherwise lead to a malfunction, and such malfunction causes the defect, error or problem; or (d) the defect, error or problem results from any other cause within the control of Customer.
11.3. Implementation Services Warranty. Company warrants during the Implementation Period that: (i) it has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Implementation Services in accordance with the Agreement; and (ii) it will perform the Implementation Services in a good, diligent, and workmanlike manner in accordance with industry standards and Applicable Law. The foregoing warranties and Company’s ability to successfully perform hereunder is dependent and conditioned upon Customer’s reasonable and timely cooperation and timely provision of all such information and access to resources as are necessary or useful for Company to perform its obligations hereunder. If through no fault or delay of Customer, and otherwise to the extent within the reasonable control of Company, the Implementation Services do not conform to the foregoing warranty in all material respects, and Customer notifies Company within sixty (60) days of Company’s delivery of the Implementation Services, Customer may, as Customer’s sole and exclusive remedy, require Company to re-perform the portion of such Implementation Services that Company agrees, acting reasonably and in good faith, were non-conforming with the requirements of the Agreement.
11.4. Disclaimer of Warranties.
11.4.1. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. COMPANY AND ITS AFFILIATES, VENDORS, AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF COMPANY’S OBLIGATIONS HEREUNDER.
11.4.2. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY AND ITS AFFILIATES, VENDORS, AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT, WITHOUT LIMITATION, (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE OR (II) UNAUTHORIZED USERS (E.G., HACKERS), MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. COMPANY WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.
11.4.3. COMPANY DOES NOT CONTROL OR DIRECT THE ACTIONS OF CUSTOMER, AND CUSTOMER REMAINS SOLELY RESPONSIBLE FOR ALL DECISIONS, ACTIONS, OR OMISSIONS IT UNDERTAKES IN RELIANCE UPON OR IN CONNECTION WITH THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ANY AND ALL LIABILITY, RESPONSIBILITY, OR OBLIGATION FOR ANY LOSS, DAMAGE, CLAIM, COST, OR EXPENSE OF ANY KIND ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF, RELIANCE UPON, OR ACTIONS TAKEN BASED ON ITS RECEIPT OF THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT ASSUMES FULL RESPONSIBILITY FOR ALL OUTCOMES RESULTING FROM ITS USE OF THE SERVICES.
11.4.4. COMPANY MAKES NO COMMITMENTS OF ANY KIND WITH RESPECT TO BETA SERVICES, INCLUDING WITHOUT LIMITATION, ANY COMMITMENTS TO PATCH, UPDATE, UPGRADE, SUPPORT, OR CONTINUE TO MAKE AVAILABLE BETA SERVICES. BETA SERVICES ARE SUBJECT TO CHANGE WITHOUT NOTICE AND MAY DIFFER SUBSTANTIALLY UPON FURTHER RELEASE. BETA SERVICES MAY CONTAIN CODE THAT IS IN “BETA” OR STILL IN DEVELOPMENT, OR THAT MAY NOT HAVE BEEN FULLY TESTED, MAY LACK STANDARD SECURITY FEATURES, AND MAY INCLUDE DEFECTS, BUGS, ERRORS, AND OTHER FAULTS THAT MAY RESULT IN TOTAL DATA LOSS OR SYSTEM FAILURE.
12. Indemnification. Customer will defend, indemnify, and hold harmless Company and its Affiliates, and their respective principals, owners, officers, directors, managers, employees, and agents, from and against any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred by Company or its Affiliates as a result of any claim by a third party arising out of or related to: (a) the conduct of Customer’s business or operations; (b) Customer’s or any End User’s use of the Services or any breach of the Agreement; (c) use or combination of the Services with any hardware, software, products, data, or other materials not provided by Company, (d) modification or alteration of the Services by Customer, its End Users, and/or its Affiliates, (e) use of the Services in excess of the rights granted in the Agreement, (f) any specifications or other information, or intellectual property, provided by Customer, including, but not limited to, Customer Data; (g) Customer’s failure to comply with any Applicable Law; or (h) Customer’s gross negligence, fraud, or intentional misconduct.
13. Confidentiality
13.1. Confidential Information. In connection with the Agreement, each party (as the “Disclosing Party”) may disclose or make available certain Confidential Information to the other party (as the “Receiving Party”). The Receiving Party agrees to: (a) hold Confidential Information in strict confidence and use it solely for the purposes of the Agreement; (b) use at least the same degree of care, but no less than reasonable care, as it employs with respect to its own confidential information of a like importance; (c) only disclose Confidential Information to its Representatives who have a need to know such Confidential Information and who are bound by confidentiality obligations no less stringent than set forth in the Agreement; and (d) to notify the Disclosing Party immediately of any unauthorized disclosure or use, and cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information. Customer will be responsible for its Representatives’ compliance with the terms of this Section 13 (Confidentiality).
13.2. Exclusions. Confidential Information will not include any information that (a) was or becomes generally known by the public other than by the Receiving Party’s or any of its Affiliate’s respective employees’, independent contractors’, subcontractors’, agents’, or representatives’ (collectively, “Representatives”) noncompliance with the Agreement; (b) was rightfully known to the Receiving Party prior to being disclosed by the Disclosing Party as evidenced by written records kept in the ordinary course of business; (c) has been or is hereafter rightfully received by the Receiving Party from a third party without restriction and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.
13.3. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, provided, that prior to disclosing Confidential Information, to the extent permitted by law, the Receiving Party will so notify the Disclosing Party in writing prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, oppose, or seek to limit any disclosure by the Receiving Party, and will cooperate with and assist the Disclosing Party, at the Disclosing Party’s expense, regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
13.4. Destruction of Confidential Information. On termination or expiration of the Agreement, Receiving Party will destroy the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information as required by Applicable Law or in its backup media and servers where deletion would be commercially impracticable.
13.5. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that any breach of Section 13 (Confidentiality) may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law, and therefore, each party will be entitled to seek appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 13 (Confidentiality) will constitute a material breach of the Agreement and be grounds for immediate termination of the Agreement in the exclusive discretion of the non-breaching party.
14. Limitation of Liability and Damages.
14.1. NEITHER COMPANY NOR ITS AFFILIATES, VENDORS, AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, EXEMPLARY AND PUNITIVE DAMAGES) OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, USE OF (OR INABILITY TO USE) THE SERVICES OR THE EQUIPMENT, OR THE PERFORMANCE OF SERVICES.
14.2. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE TOTAL AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES, VENDORS, AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED: (A) WITH RESPECT TO THIRD-PARTY SERVICES, THE GREATER OF THE TOTAL FEES ACTUALLY PAID HEREUNDER BY CUSTOMER FOR THE APPLICABLE THIRD-PARTY SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE CLAIM (OR FIRST CLAIM IN A SERIES OF CLAIMS) GIVING RISE TO THE LIABILITY OR ONE HUNDRED DOLLARS ($100); OR (B) WITH RESPECT TO ALL OTHER CLAIMS OR DAMAGES, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER FOR THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM (OR FIRST CLAIM IN A SERIES OF CLAIMS) GIVING RISE TO LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
14.3. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, TO THE EXTENT COMPANY AND/OR ITS AFFILIATES HAVE LIABILITY TO CUSTOMER UNDER SEPARATE AGREEMENTS THAT ARISES OUT OF THE SAME OR SIMILAR FACTS AND CIRCUMSTANCES, THE TOTAL AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES TO CUSTOMER ARISING OUT OF SUCH FACTS AND CIRCUMSTANCES WILL BE AGGREGATED ACROSS ALL APPLICABLE AGREEMENTS AND LIMITED TO THE AMOUNT PERMITTED BY THE AGREEMENT WITH THE LARGEST LIMITATION OF LIABILITY AS CALCULATED UNDER SECTION 14.2.
15. Term; Termination
15.1. Term. The initial term is set forth in the Order Form or as agreed-to through the Platform (“Initial Term”). If no Initial Term is otherwise stated, the Initial Term will be for twelve (12) months. The Agreement automatically renews for successive periods equal to the Initial Term (each a "Renewal Term") at the end of the Initial Term and each Renewal Term thereafter, unless and until either party gives the other party notice of non-renewal at least ninety (90) days in advance of the end of the then-current Term. In the event that Customer licenses CORE and Customer’s Go-Live Date for the Services differs from Customer’s Go-Live Date for CORE (the “Delayed Go-Live Service”), unless otherwise expressly agreed to in writing by the parties, the Initial Term applicable to such Delayed Go-Live Service shall be from the Go-Live Date of such Delayed Go-Live Service through the end of the then-current Term applicable to CORE. For clarity, the Term applicable to any such Company Delayed Go-Live Service shall be coterminous with the then-current Term applicable to CORE, and the Company Delayed Go-Live Services shall renew on the same date, and for the same period, as CORE for any Renewal Term.
15.2. Termination.
15.2.1. Termination for Breach. The Agreement will terminate (i) on the ninetieth (90th) day after either party gives the other written notice of a breach by the other of any material term or condition of the Agreement, unless the breach is cured before that day; or (ii) upon written notice by either party, immediately, if (1) a receiver is appointed for the other party or its property, (2) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors, or (3) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
15.2.2. Termination by Company. Company may (in its sole discretion) terminate the Agreement immediately following the occurrence of any of following events: (i) If an invoice remains unpaid for forty-five (45) or more days from the invoice date; (ii) Customer permits access to the Services, or grants or attempts to grant any other rights or licenses regarding the Services, to any unauthorized person, or permits unauthorized access to information provided to Customer, or any End User permits or does any of the foregoing, in each case without the prior written consent of Company; or (iii) Company gives Customer fourteen (14) days written notice that Company has determined in its sole discretion that Customer or an End User has acted or failed to act in a manner that, as determined by Company in its sole discretion, is disruptive to Company’s business, and Customer fails to cure such act or omission (to Company’s satisfaction) within such notice period.
15.3. Requirement to License CORE/Expiration /Termination/Renewal. Company has the right to require Customer to license CORE in order to maintain this Agreement. Should Company available itself of that right, Company will provide Customer with written notice of this requirement, along with a required conversion date. If, in response to such notice, Customer declines to license CORE, or if Customer was licensing CORE and Customer’s access to CORE is terminated or expires, the Services will be automatically terminated (either upon the date that Customer declines to license CORE or upon the effective date of termination or expiration of CORE), unless Company (in its sole discretion) agrees in writing to allow the Services to continue without Customer licensing CORE or after the termination or expiration of Customer’s license to CORE. If Company agrees to allow the Services to continue after such time, the Services will continue for the Term applicable to the Services (or for such other timeframe as agreed to in writing by Company). If Customer is licensing CORE, and Customer’s license to CORE renews, then the Services will also renew upon the same Term.
15.4. Termination of Third-Party Services. Company may terminate any Third-Party Service immediately upon notice in accordance with the applicable third-party service provider’s requirements or as a result of expiration or termination of Company’s agreement with the applicable third-party service provider.
15.5. Suspension of Services. Notwithstanding any other provision of the Agreement, Company may, in its sole discretion, immediately suspend Customer’s access to the Services for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Services, including, but not limited to, resulting from Customer’s use of robots or similar automated tools or other means (whether or not such tools or means are approved by Company); (b) to comply with any Applicable Law; (c) to protect Company from potential legal liability; (d) if an invoice remains unpaid for more than forty-five (45) or more days from the invoice date; (e) Customer’s access to the Services may pose a security risk or threat to the function of the Services or to the confidentiality of any data associated with the Services; (f) Customer’s excessive use of the Services or use of the Services for purposes for which they are not intended; or (g) if Customer breaches the Agreement. Company will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Company will promptly restore access to the Services once the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Company to monitor use of the Services. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any End User may incur as a result of a Services suspension in accordance with this Section.
15.6. Effect of Termination. Upon expiration or termination of the Agreement for any reason: (a) Customer’s and all End Users’ access to and use of the Services will cease as of the effective date of expiration or termination; (b) Customer will pay to Company all sums due to Company for Services through the effective date of such expiration or termination (prorated as appropriate); and (c) unless the termination of the Agreement results from Company’s breach of the Agreement pursuant to Section 15.2.1, Customer shall pay the Termination Fee set forth in the Agreement. The Termination Fee will become immediately due and payable in full upon the effective date of termination and will accrue interest if not paid within thirty (30) days of the effective date of termination. Customer acknowledges and agrees that Company may utilize the ACH payment pursuant to the ACH Authorization to charge Customer for the Termination Fee pursuant to the Agreement in one or multiple charges, at Company’s sole discretion.
16. General Provisions
16.1. Affiliates, Subcontractors, and Vendors. Some or all of the Services, including, but not limited to, support, and Implementation Services may be provided by Company’s Affiliates, agents, subcontractors, and information system vendors (“Subcontractors”). Company shall ensure such Subcontractors comply with all relevant terms of the Agreement that are applicable to them.
16.2. Publicity. Customer consents to Company's identification of Customer as a customer in verbal or written correspondence with third parties. Company may issue a press release announcing Customer and Company's relationship and list Customer publicly on its Web sites, social media, and in other promotional materials only with Customer's prior written consent.
16.3. Force Majeure. Except for the payment of fees by Customer, neither party will be liable for any failure or delay in performance under the Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, epidemics, pandemics, quarantines, civil disorders, rebellions or revolutions, war, riot, act of God, embargoes, export control regulation, laws, judgments, or government actions, orders, or instructions (each, a “force majeure event”). Without limiting the foregoing, Company shall not be liable for delays or failures in performance under the Agreement by reason of Customer’s or any third party’s failure to provide the data or information necessary for complete and proper access to, and transmission of, the Services.
16.4. Non-Disparagement; Non-Solicitation. Customer shall not (and shall not cause or encourage any other person or entity to) at any time, directly or indirectly, make, publish, or communicate to any person or entity any statement, comment, or remark, whether written or oral, which in any way disparages, defames, or is negative regarding, or could reasonably be expected to impugn the personal or professional character, reputation, or integrity of, Company or its employees, or any of its Affiliates. Company’s executives and employees who directly interact with Customer shall not (and shall not cause or encourage any other person or entity to) make, publish, or communicate any defamatory, disparaging, or derogatory statements or remarks concerning Customer. Nothing in this clause shall prohibit either Company or Customer from making truthful statements that are required by law, regulation, or legal process. To the extent permissible by applicable law, during the Term and for a period of twelve (12) months following termination or expiration of the Agreement, Customer agrees that it will not directly solicit the engagement or employment of any of the employees, contractors, or other personnel of Company who have been engaged in the provision of Services, without written permission of Company, provided, that the foregoing will not apply to persons who have independently responded to general solicitations (such as general newspaper advertisements and Internet postings) not targeting such persons.
16.5. Entire Agreement; Amendment. The Agreement sets forth the entire agreement between the parties with regard to the subject matter thereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of the Agreement, except as referenced herein. Company reserves the right to modify the Terms and Conditions applicable to Customer and/or the Services. Company will post any updated Terms and Conditions on the Platform and/or on Company’s designated website. Any updated version of the Terms and Conditions shall become effective as of the publication date and will supersede all prior versions of such Terms and Conditions with respect to any access to or use of Services by Customer and its End Users after such posting date. If Customer does not agree to such updated Terms and Conditions, Customer must provide notice of such to Company within five (5) business days of the publication date and in accordance with Section 16.14. To the extent Customer notifies Company of such, Company may (at its sole discretion) either terminate Customer’s access to the impacted Services or may agree to apply the previously agreed-upon Terms and Conditions to the impacted Services. If Customer does not notify Company of such within the applicable timeframe, Customer agrees to be bound by such updated Terms and Conditions. The Agreement prevails over any terms or conditions in any Customer documentation or communication, including, but not limited to, any purchase order, general terms and conditions, or any other document or communication issued by or on behalf of Customer in connection with any purchase of Services, regardless of whether or when submitted. Company’s fulfillment of Customer’s order does not constitute Company’s acceptance of any such additional terms and conditions (all of which are hereby rejected) and does not modify or amend the Agreement.
16.6. Governing Law and Venue; Limitation of Actions. The Agreement will be construed according to, and the rights of the parties will be governed by, the laws of the State of Delaware, USA, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with the Agreement will be tried and litigated exclusively in the state or federal courts located in Hudson County, New Jersey, USA. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section. Except for actions for nonpayment, breach of Company’s proprietary rights, or violations of confidentiality, no action, regardless of form, arising out of the Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
16.7. Restricted Rights. Services acquired with United States Government funds or intended for use within or for any United States federal agency are provided with “Restricted Rights” as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data-General, including Alternate III, as applicable. Company must be notified in advance of any license grants to United States federal governmental entities. Customer acknowledges that none of the Services are licensed for use in any nuclear, aviation, mass transit or medical application or in any other inherently dangerous applications.
16.8. No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
16.9. Relationship of the Parties. The parties agree that Company will perform its duties under the Agreement as an independent contractor. Nothing contained in the Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Company who perform duties related to the Agreement will remain under the supervision, management, and control of Company.
16.10. Assignment. Customer may not assign the Agreement without the prior written consent of Company, except Customer may assign the Agreement without consent to a successor in connection with a merger, consolidation, reorganization, or sale of all or substantially all assets or business related to the Agreement which has assumed in writing its obligations under the Agreement, provided, that in no event shall Customer be permitted to assign the Agreement to any competitor of Company or its Affiliates without Company’s prior written consent.
16.11. Severability. If any of the provisions of the Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of the Agreement and will not cause the invalidity or unenforceability of the remainder of the Agreement.
16.12. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Further, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16.13. Survival. Any provision of the Agreement which, by its nature, would survive termination or expiration of the Agreement will survive any such termination or expiration of the Agreement, including without limitation, the following Sections: 3 (Customer Obligations/Permissible Use/Restrictions), 7 (Proprietary Rights), 8 (Data Rights), 9 (Feedback), 10 (Fees) (for any unpaid amounts due and payable by Customer), 11.4 (Disclaimer of Warranties), 12 (Indemnification), 13 (Confidentiality), 14 (Limitation of Liability and Damages), 15 (Term; Termination), and 16 (General Provisions).
16.14. Notices. All notices hereunder must be in writing and addressed to Company at the address set forth in the Order Form, along with copies to notices@prompthealth.com and legal@prompthealth.com, and to Customer at the address or email address set forth in the Order Form, or in either case to such other address or email address that may be designated by a party from time to time by giving notice to the other party in accordance with this Section. All notices must be delivered: (1) by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid); and (2) with a copy to the applicable party’s email address(es). Except as otherwise provided in the Agreement, a notice is effective only: (a) upon receipt by the receiving party; and (b) if the party giving the notice has complied with the requirements of this Section.
16.15. Compliance Verification. Company has the right to audit and/or inspect Customer’s records to verify Customer’s compliance with the Agreement during the Term and for a period of one (1) year following termination or expiration of the Agreement.
16.16. Counterparts. The Order Form may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
16.17. Electronic Execution. The Order Form may be accepted in electronic form (e.g., by an electronic signature), which shall have the same legal effect, validity, and enforceability as a manually executed signature to the extent and as provided for in any Applicable Law.