Medaptus Solutions Inc.
TERMS AND CONDITIONS
The Services Agreement (Agreement) between Medaptus Solutions Inc. (Medaptus), 176 Federal Street, 4th Floor, Boston, MA 02110 and the party identified on the applicable Exhibit (Customer) consists of these Terms and Conditions (the Terms) and one or more Exhibits, and the Business Associate Agreement set forth below. These Terms and Conditions shall apply to each Exhibit executed by Medaptus and Customer.
GENERAL TERMS & CONDITIONS
These General Terms shall apply to all Services (as defined below) and all Professional Services (as defined below) performed by or on behalf of Medaptus. The Terms along with all exhibits shall be referred to collectively as the Agreement.
- LICENSE GRANT; RESTRICTIONS.
- Subject to the terms and conditions of this Agreement, and only during the Term (as defined in Section 6), Medaptus grants to Customer, and Customer accepts, a non-exclusive, nontransferable right and license for employees of Customer and Qualified Contractors (Authorized Users) to access and use the Services. Such Services are defined as the (i) the software products proprietary to Medaptus as identified in the attached Exhibit A or in an applicable Service Order or Work Order (Software) and Updates thereto (defined below), all provided to Customer via the internet, (ii) the user documentation provided by Medaptus to Customer, whether in writing or any media format, for use with the Software (Documentation) and (iii) Support Services (as defined below). The foregoing license is limited to Customer’s own internal business purposes, and solely for access as provided in Exhibit A or in an applicable Service Order or Work Order (collectively, Exhibit A) by reference or attached hereto. The foregoing license shall apply to any changes to the Software such as corrections, enhancements, or a new release of the Software (Updates), made generally available by Medaptus during the Term. As used herein, a Qualified Contractor shall mean a Customer contractor who does not offer any product or service that competes with Medaptus and for whom Customer assumes the responsibility for ensuring that the Qualified Contractor shall be bound by the terms and conditions of this Agreement.
- Limitations. Except as specifically permitted in this Agreement, Customer shall not directly or indirectly (i) use any Medaptus Confidential Information (as defined in Section 4.2) or Services to create any software or documentation that is similar to the Services; (ii) encumber, transfer, rent, lease, time-share or use the Services in any service bureau arrangement; (iii) copy (except for archival purposes), distribute, manufacture, adapt, create derivative works of, translate, localize, port, email or otherwise modify the Services; (iv) use the Services or any component thereof for any purpose other than to implement and use the Software; (v) reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Software or any other aspect of the Medaptus technology; or (vi) permit any third party to engage in any of the acts proscribed in clauses (i) through (v).
- Other Modules. Medaptus may offer Other Modules to Customer at Medaptus’ then applicable fees, unless otherwise agreed to by the parties. For purposes of this Agreement, Other Modules shall mean software modules or products that deliver functionality in addition to or substantially different from the then current versions of the Software.
- Support Services. Support Services are defined as follows:
- Medaptus shall provide telephone support during standard support hours (Monday through Friday 8 am to 6 pm Eastern Time) and limited off hours (until 10 pm Eastern Time weekdays), excluding Federal holidays.
- Support service calls must be placed by the System Administrator or assigned designees reasonably acceptable to Medaptus.
- Customer agrees that only its System Administrator, or an appropriate designee, will be entitled to contact Medaptus in connection with any Support Services requested by Customer, unless otherwise agreed to in writing.
- CUSTOMER’S OBLIGATIONS.
- Customer Equipment. With the exception of Medaptus equipment that may be made available to customer through Services, Customer shall provide Equipment at its sole cost and expense. Equipment shall be defined as the network, hardware and third party software components which shall be owned or controlled by Customer, including any handheld devices, and Customer shall be fully responsible for ensuring that such Equipment meets the minimum hardware and operating system requirements for use with the Services.
- Installation. Customer shall be responsible for arranging, at its expense, all necessary resources in order to access and use the Services. Customer also agrees to assign a Project Manager to coordinate and manage Customer activities during period necessary to access and use the Services.
- Data Protection. Customer will take appropriate steps to copy, backup and protect Customer’s own data and programs that may be lost, harmed or destroyed and to protect Customer Equipment from any damage. Medaptus shall use commercially reasonable efforts to assist Customer in the reconstruction, replacement, repair or recreation of lost programs or data in the event of Software failure.
- Data License. During the Term, to the extent required for Medaptus to provide the Services to Customer, Customer hereby grants to Medaptus a license to use such data in order to provide the Services to Customer.
- PROFESSIONAL SERVICES. Customer may retain Medaptus to perform professional services and training (Professional Services), at the rates indicated on the attached Exhibit A.
- PROPRIETARY RIGHTS.
- Right and Title. Medaptus retains all interests and rights in, and title to the Services and Customer shall not take any action inconsistent with such title and ownership.
- Confidential Information. Unless expressly authorized by the other party, neither party shall disclose to any third party any information or materials provided by the other party under this Agreement and reasonably understood to be confidential (“Confidential Information”), or use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that is in the public domain or already in the receiving party’s possession, was known by the receiving party prior to the date of disclosure or becomes known to the receiving party thereafter from a third party having a bona fide right to disclose the information, or Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing receiving party provides disclosing party with timely notice of such court order or subpoena. Furthermore, Customer will keep in confidence all passwords and other access information to the Services. The Services and the terms and conditions of this Agreement shall be considered Medaptus Confidential Information.
- FEES AND PAYMENT.
- Fees. All fees are described in Exhibit A and are due and payable in accordance with this Section 5 and in accordance with the provisions of Exhibit A.
- Payment. All payments due under this Agreement shall be made in U.S. dollars at Medaptus’ address. Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1.5% per month or, if lesser, the maximum amount permitted by law.
- Taxes. Customer is responsible for payment of any federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments in association with this Agreement.
- Audit. Upon Medaptus’ written request, Customer shall furnish Medaptus with a signed certification verifying that the Services are being used pursuant to the terms of this Agreement. Medaptus shall have the right, to verify Customer’s compliance with this Agreement. Any such audit shall be at the expense of Medaptus.
- TERM AND TERMINATION.
- Term. This Agreement shall commence and remain in effect for the initial term set forth in Exhibit A (Initial Term). Following the Initial Term, this Agreement shall automatically renew for successive one year terms (Renewal Terms) unless either party provides the other with written notice of non-renewal at least ninety (90) days prior to the expiration of the Initial Term or any subsequent Renewal Term. Together, the Initial Term and any Renewal Term shall mean the Term.
- Termination. This Agreement may be terminated: (i) by either party, in the event the other party materially breaches a provision of this Agreement and the breaching party fails to cure such breach within thirty (30) days (ten (10) days for failure to pay) of the receipt of written notice of such breach from the non-breaching party; (ii) by Medaptus immediately in the event of any breach of Sections 1 or 4.
- Effects of Termination. Upon expiration or termination of this Agreement for any reason, all rights and obligations of the parties hereunder and all licenses shall cease, except as follows:
- Customer’s liability for any charges, payments or expenses due to Medaptus under this Agreement shall not be extinguished by termination, and such amounts (if not otherwise due on an earlier date) shall be due and payable within thirty (30) days after termination date.
- Customer shall have no further right to use the Services and immediately after the termination or expiration date hereof, Customer shall deliver to Medaptus, at Customer’s expense, all originals and copies of the Medaptus Confidential Information. Customer shall certify in writing to Medaptus within ten (10) days following termination that it has complied with this Section 6.3.2.
- Customer shall have thirty (30) days from the date of termination of this Agreement to download its data. Thereafter Medaptus shall promptly destroy, at Medaptus’ expense, all originals and copies of the Customer data and Confidential Information in the possession or under the control of Medaptus.
- The provisions of Sections 4 (Proprietary Rights; Confidential Information), 5 (Fees and Payment), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Compliance with Laws), 12 (General Provisions), and this Section 6 shall survive any termination or expiration of this Agreement.
- REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMERS.
- Representations of Customer. Customer represents and warrants that:
- Customer shall comply with all laws, legislation, rules, regulations, and governmental requirements with respect to this Agreement, and the performance by Customer of its obligations hereunder. In the event that this Agreement is required to be registered by Customer with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
- Medaptus Representations. Medaptus represents and warrants that:
- Medaptus shall comply with all laws, legislation, rules, regulations, and governmental requirements with respect to the Services, and the performance by Medaptus of its obligations hereunder.
- Services Warranty. Medaptus warrants that during the Term the Services will be performed in a good and workmanlike manner consistent with industry standards. Customer’s sole and exclusive remedy and Medaptus’ entire liability for any breach of this warranty shall be: (i) the correction of the Services so that they operate as warranted, or (ii) if Medaptus is unable to make the Services operate as warranted, Customer shall be entitled to terminate this Agreement in accordance with Section 7.2 and Medaptus shall refund to Customer the unused portion of fees prepaid for the Services for the remainder of the Term.
- Services Warranty. Medaptus warrants that the Professional Services will be performed consistent with generally accepted industry standards. If Customer reports a breach of the foregoing within thirty (30) days of performance of such Professional Services, Customer’s exclusive remedy, and Medaptus’ entire liability for Services that do not conform to this warranty, shall be the re-performance of Services without additional charges for work performed and if Medaptus is unable to cure the nonconforming Professional Services, Medaptus shall refund to Customer the fees paid for the nonconfirming Professional Services.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MEDAPTUS HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES AND PROFESSIONAL SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. MEDAPTUS DOES NOT WARRANT THAT (A) THE SERVICES OR PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) THE SERVICES WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, (C) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) ALL ERRORS AND DEFICIENCIES NOT RESULTING IN BREACH OF WARRANTY WILL BE CORRECTED.
- Representations of Customer. Customer represents and warrants that:
- INTELLECTUAL PROPERTY INDEMNIFICATION. Except as provided below, Medaptus shall defend the Customer from and against any third party claim that the Software, as delivered, infringes a valid United States patent or copyright or misappropriates a trade secret of a third party and shall indemnify the Customer from damages, liabililites costs and expenses finally adjudicated or settled in connection with such third party claim, provided that (i) Customer shall have promptly provided Medaptus written notice thereof and reasonable cooperation, information, and assistance in connection therewith, (ii) Medaptus shall have sole control and authority with respect to the defense, settlement, or compromise thereof, and (iii) Customer shall not make any admissions to any third party regarding the claim or settle any indemnified claim except as approved by Medaptus in writing. If the Software becomes or, in Medaptus’ opinion, is likely to become the subject of any injunction preventing its use as contemplated in the Documentation, Medaptus may, at its option, (1) procure such rights as may be necessary to permit continued use of the Software, (2) replace or modify the Software so that it becomes non-infringing without substantially compromising its functionality, or, if (1) and (2) are not reasonably availableto Medaptus, then (3) terminate this Agreement and refund Customer the unused portion of fees prepaid for the Services for the remainder of the Term. Medaptus shall have no liability or obligation to the Customer hereunder with respect to any claim based upon (a) the combination, operation or use of any Software furnished under this Agreement with software, hardware or other materials not furnished by Medaptus if such infringement would have been avoided by the use of the Software without such software, hardware or other materials; or (b) any patent, copyright or trade secret in which the Customer has an interest. Customer will immediately inform Medaptus as soon as Customer becomes aware of any threatened or actual liability claim by a third party relating to the Software. To obtain the benefit of the indemnifications set forth in this Section, the Customer must (a) promptly provide notification of the claim and reasonable cooperation to Medaptus; (b) tender to Medaptus complete control of the defense, settlement and compromise of the claim; and (c) not make any admissions to any third party regarding the claim or settle any indemnified claim except as approved by Medaptus in writing. The Customer may participate in its defense at its own cost and expense. The foregoing states the entire liability of Medaptus with respect to infringement and constitutes the exclusive remedy of Customer.
- LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM BREACH OF THE CONFIDENTIALITY OBLIGATIONS AND FOR ANY LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 HEREOF AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, PROFITS OR USE OF (OR INABILITY TO USE) THE SERVICES, OR RESULTING FROM LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES WITHOUT REGARD TO WHETHER MEDAPTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM BREACH OF THE CONFIDENTIALITY OBLIGATIONS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MEDAPTUS BE LIABLE TO CUSTOMER, IN THE AGGREGATE, FOR MORE THAN THE AMOUNT OF FEES THAT CUSTOMER HAS PAID TO MEDAPTUS IN THE TWELVE (12) MONTHS PRECEEDING THE DATE ON WHICH THE CLAIM AROSE.
- COMPLIANCE WITH LAWS.
- General Compliance With Laws. Both parties hereby expressly state that it is the intention of neither party to violate any applicable Federal, state or local law or regulation (Applicable Law). During the term of this Agreement both Parties will comply with all Applicable Law and conduct their respective businesses and operations in full compliance with all Applicable Law.
- HIPAA Compliance. The parties will enter into a Business Associates Agreement (BAA) for purposes of complying with the Health Insurance Portability and Accountability Act of 1996, as amended, and its corresponding implementing regulations (HIPAA) in the form attached hereto as Exhibit B.\
- GENERAL PROVISIONS.
- Waiver. No provision of, right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of either party, its agents, or employees, but only by an instrument in writing signed by an authorized individual of each party.
- Severability. The invalidity, illegality or unenforceability, in whole or in part, of any provision, term or condition hereof shall not affect the validity and enforceability of the remainder of such provision, term or condition or of any other provision, term or condition, and, to the extent possible, such invalid, illegal or unenforceable provision shall be replaced by a provision most nearly reflecting the fundamental objectives of the original provision.
- Subcontracting & Assignment. Customer shall not assign, subcontract or delegate its rights or obligations under this Agreement to any other person unless agreed to in writing by Medaptus. Medaptus may assign or delegate its rights and/or obligations hereunder without the consent of Customer in the event of a sale or transfer of substantially all of its business, irrespective of whether the sale or transfer occurs by way of change of control, sale of assets, sale of stock or merger. The foregoing notwithstanding, in the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto.
- Contract & Construction. This Agreement and the acceptance thereof shall be a contract made in the Commonwealth of The validity and interpretation of this Agreement and all related documents and the rights and duties of the parties hereunder shall be governed by the laws of the Commonwealth of Massachusetts, excluding its choice of laws rules.
- Relationship of the Parties. Nothing in this Agreement shall be construed to place Medaptus and Customer in a relationship of agents, partners or joint ventures, and neither party shall have the power to obligate or bind the other party in any manner whatsoever.
- Publicity. Medaptus may disclose that Customer is a customer of Medaptus in routine marketing and communications materials. Customer agrees to work with Medaptus to develop and approve a mutually acceptable Medaptus press release within 30 days of the date of this agreement.
- Non-Solicitation. Each party agrees not to solicit for hire or hire any of the employees of the other party from the date hereof until twelve (12) months after this Agreement expires or terminates. Notwithstanding the foregoing, a general advertisement by a Party for employment that is not targeted at any existing employee of the other Party shall not constitute a breach of the obligations of such Party under this Section.
- Notices. Any notice, demand or other communication required, or which may be given unless otherwise specifically provided for in this Agreement, shall be in writing and shall be given or made by confirmed facsimile or similar electronic communication, by certified mail, return receipt requested or by an overnight courier service which provides the sender with written record of delivery, and shall be addressed to the respective parties at the addresses set forth on the first page of this Agreement or the relevant Exhibit hereto. The notice, demand or other communication shall be deemed to have been given or made on the confirmation date.
- Generally. This Agreement (i) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, as to such subject matter; (ii) may be amended or modified only by a writing executed by the party against whom enforcement is sought; and (iii) shall be binding upon and shall inure to the benefit of the respective heirs, administrators, personal representatives, successors and permitted assigns of the parties hereto. Except as provided in Section 8, each party will bear its own expenses in connection with this Agreement.
- The individual executing this Agreement on behalf of a corporation or other legal entity personally represents that he or she is duly authorized to execute this Agreement on behalf of such entity and that this Agreement is binding upon such entity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed instrument as of the date and year last signed below.
Medaptus Solutions Inc. Customer