Terms and conditions
Updated June 4, 2022
These Subscription Terms and Conditions set forth the terms and conditions pursuant to which UptimeHealth provides Subscriber access to the Platform and the Services (as described herein). These terms are incorporated into and govern the preceding Order Form. Capitalized terms not defined here shall have the meaning given to them in the Order Form. Acceptance of the Order Form or Subscriber’s use of or access to the Platform and/or the Services shall constitute Subscriber’s unconditional acceptance of the Agreement. UptimeHealth and Subscriber are sometimes referred to herein collectively as the “Parties”or individually as a “Party”.
1. Definitions. The below capitalized terms have the meanings set forth below or in the referenced provision. Other capitalized terms used herein are defined as they arise in this Agreement.
1.1 “Confidential Information” means, with respect to a Party, all non-public information regarding such Party and its suppliers, customers and partners and their respective businesses, technologies or research disclosed by or on behalf of such Party in connection with this Agreement, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/or confidential. The Documentation and all non-public information regarding the Platform, the Platform Services (including but not limited to their performance, operation and data formats), and the Assessment and Onboarding Services shall be deemed the Confidential Information of UptimeHealth. The Subscriber Content shall be deemed the Confidential Information of Subscriber. The Fees to be paid by Subscriber are the Confidential Information of both Parties. Notwithstanding the foregoing, Confidential Information will not include any information that the Party receiving such information can establish by convincing written evidence: (a) was independently developed by the receiving Party without use of or reference to any Confidential Information belonging to the other Party; (b) was acquired by the receiving Party from a third party having the legal right to furnish same to the receiving Party; or (c) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the receiving Party).
1.2 “Documentation” means the user documentation provided to Subscriber with respect to the use of the Platform and the Platform Services, as updated from time to time by UptimeHealth.
1.3 “Inspector” means a certified vendor made available via the Platform (either sourced by UptimeHealth or whose information has been provided by the Subscriber) who has been authorized by Subscriber to provide on-site maintenance and inspections on Subscriber’s medical equipment, and who has been provided a unique user name and password for such access.
1.4 “Platform” means, the modules of UptimeHealth’s proprietary clinical asset management and compliance management platform, including, but not limited to, the UptimeController and UptimeMarket.
1.5 “Registered User” means an individual manager or coordinator employed by Subscriber who has been authorized by Subscriber to access the UptimeHealth Systems on behalf of Subscriber, and who has been provided a unique username and password for such access.
1.6 “Subscriber Content” means all text, data, graphics, pictures or other content that Subscriber or Registered Users input, post or upload into the Platform, including but not limited to all content relating to Subscriber’s medical and technical equipment. As set forth in Section 5.2(b), Subscriber Content is the Confidential Information of Subscriber.
1.6 “Inspection Services” means maintenance and inspection services provided by Inspectors.
2. Subscription; Subscription Restrictions.
2.1 Subscription to UptimeHealth Platform. Subject to the terms and conditions in this Agreement, UptimeHealth grants to Subscriber, and Subscriber accepts, a nonexclusive, nontransferable subscription (the “Subscription”), without the right to sublicense, to remotely access, via the Internet, an executing instance of the UptimeHealth Platform (collectively, the “Platform Services”), solely for Subscriber’s internal business use.
2.2 Registered Users. Each Registered User shall access thePlatform using the unique login and password associated with such Registered User. Subscriber shall not permit any unauthorized use of the Platform or the Platform Services. All acts and omissions of Registered Users shall be deemed to be those of Subscriber, and Subscriber shall be responsible therefor. Subscriber shall keep all passwords safe and secure and shall be responsible for all use of the Platform and the Platform Services using passwords issued to Subscriber and RegisteredUsers. Subscriber shall notify UptimeHealth immediately of any actual or suspected (a) unauthorized use of its passwords for the Platform or the Platform Services, or (b) other violation of thisSection 2.2 and shall in each case take further steps as may reasonably be requested by UptimeHealth to prevent or remedy any such violation. Without limiting any of its other rights or remedies, UptimeHealth reserves the right to suspend any Registered User’s right to access the Platform and the Platform Services if UptimeHealth reasonably believes that such Registered User has materially violated the restrictions and obligations in this Agreement (in which case, UptimeHealth shall provide Subscriber prompt written notice of such suspension).
2.3 SubscriberResponsibilities and Cooperation. Subscriber shall be solely responsible, at its expense, for devices and hardware in connection with establishing, maintaining, and operating its connection to the Internet (the speed of which may have a significant impact on the responsiveness of the Platform Services), including all access lines, all Internet service provider connection charges, and any long distance or wireless telephone charges. Subscriber shall: (a) reasonably cooperate with UptimeHealth in all matters relating to the Platform, Platform Services and Inspection Services; and (b) respond promptly to any UptimeHealth request to provide information, approvals, authorizations or decisions that are reasonably necessary for UptimeHealth to provide the Platform Services or enable Inspection Services in accordance with this Agreement.
2.4 No Modification, Reverse Engineering, etc. Subscriber shall not, nor shall Subscriber permit any Registered User to, (a) copy, modify, or create derivative works, of the Platform or the Platform Services, or (b) access, attempt to access or otherwise interfere with the hosting servers, the Platform or the Platform Services (other than to access the functionality of the Platform and the Platform Services in accordance with the terms of this Agreement).
2.5 Security. As part of the Platform Services, UptimeHealth (or its subcontractors as applicable) shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards (including virus protection safeguards) which are reasonably intended to prevent the destruction, loss, interception, or alteration of Subscriber Content by unauthorized persons and which are consistent with current commercial practices in the industry. Subscriber expressly recognizes that, although UptimeHealth shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security. Subscriber and its Registered Users will not attempt to disable, modify or circumvent any security safeguard adopted by UptimeHealth.
2.6 Assessment and Onboarding Services. During the initial stages of the SubscriptionTerm (as defined in Section 3.1 below), UptimeHealth will perform the onboarding, assessment, training, other related services as set forth in the Platform Description (the “Assessment and Onboarding Services” and, together with the Platform Services, the “Services”).
3. Subscription Term and Termination.
3.1 Term of Subscription. Subject to earlier termination as described in Section 3.2 or Section 3.3, and unless otherwise agreed in writing by the Parties, this Agreement shall commence on the Effective Date and continue for the period of time specified on the Order Form (such period being referred to as the “Initial Subscription Term”). Thereafter, unless specified otherwise on the Order Form, this Agreement shall automatically renew for successive renewal terms of 12 months each (each a “Renewal Subscription Term,” and, together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other Party in writing of its desire not to renew at least thirty (30) days prior to the expiration of the Initial Subscription Term or Renewal Subscription Term then in effect.
3.2 Termination. This Agreement may be terminated prior to the expiration of theSubscription Term by either Party, if the other Party materially breaches any provision of this Agreement, and such breach remains uncured for at least sixty (60) days following notice thereof.
3.3 Pilot Termination. If applicable, during the Pilot Term or Evaluation Phase as set forth on the Order Form, the Subscriber may terminate the Agreement at any time upon 5 days written notice to UptimeHealth.
3.4 Effects of Termination.
(a) Except as expressly provided herein, upon any expiration or termination of thisAgreement: (i) all rights, subscriptions and obligations of Subscriber to access and use the Platform and the Services shall immediately cease and terminate and Subscriber and its Registered Users shall cease to use and access the Platform and the Services; (ii) Subscriber shall pay UptimeHealth in full any remaining unpaid amounts owed to UptimeHealth hereunder; and (iii) Subscriber shall return or destroy (and cause its Registered Users to destroy) all copies of the Documentation provided to Subscriber by UptimeHealth.
(b) Notwithstanding the foregoing, the provisions of Sections 1, 2.2, 2.3, 2.4, 3.3, 4, 5, 6, 7 and 8 shall survive the termination of this Agreement in accordance with their terms.
4.1 Subscription Fees. Subscriber shall pay UptimeHealth the fees (“SubscriptionFees”) set forth in the Order Form when due in accordance with the OrderForm. The Subscription Fees shall remain unchanged during the Initial Subscription Term. UptimeHealth may change the Subscription Fees for Renewal Subscription Terms by notifying Subscriber in writing of such change at least forty-five (45) days in advance of the Renewal Subscription Term in which such change or increase will take effect.
4.2 Taxes. Subscriber acknowledges that it is responsible for any sales, value-added, use or other taxes, tariffs, and governmental charges, that are due in connection with the sale and provision of, and access to, the Platform and the Services hereunder (except taxes based on UptimeHealth’s net income for which UptimeHealth shall be solely responsible), and that if UptimeHealth is required to pay any such taxes or charges based on the Platform, the Services or other items provided to Subscriber, then such charges shall be billed to and paid by Subscriber. Subscriber shall obtain and provide to UptimeHealth any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax, use tax, or other tax liability.
4.3 Payment Terms. Subscriber shall pay any setup or Onboarding Services fee shown in the Order Form within thirty (30) days from the Effective Date. Subscriber shall pay the first monthly Subscription Fee described in the Order Form no later than the last business day in the calendar month in which the Effective Date occurs. Thereafter, monthly license fees shall be due on or before the first calendar day of each month. All payments shall be made in U.S. Dollars. In addition to any other remedies available to UptimeHealth hereunder, if Subscriber fails to pay any amounts within thirty (30) days after payment is due, then Subscriber shall additionally pay UptimeHealth late payment charges equal to 1.25% per month (or the highest rate permitted by law, if lower), together with all costs and expenses, including reasonable attorney fees, incurred by UptimeHealth in collecting such overdue amounts.
5. Ownership, Intellectual Property Rights and Nondisclosure.
5.1 Ownership and Intellectual Property Rights. UptimeHealth and its licensors are the sole owners of the Platform, and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. This Agreement does not provide Subscriber with any rights to the Platform, the Services, or any copies thereof except as expressly set forth herein. Reciprocally, Subscriber is the sole owner of the Subscriber Content and all intellectual property right therein and thereto, and this Agreement does not provide UptimeHealth with any rights to the Subscriber Content except as expressly set forth herein.
5.2 Confidentiality Obligations.
(a) Confidential Information. Each Party agrees that during the Subscription Term and thereafter: (i) it will use Confidential Information belonging to the other Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the other Party to any third party (other than to its employees, contractors, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the other Party’s written consent. Each Party will be responsible for any breach of this Section 5 by its employees, representatives, and agents. The terms of this Agreement are the Confidential Information of both Parties, but may be disclosed by either Party with its advisors and potential investors or acquirers who are subject to confidentiality obligations or to enforce its terms.
(b) Subscriber Content. UptimeHealth acknowledges and agrees that the Subscriber Content (including but not limited to all content relating to Subscriber’s suppliers) is the Confidential Information of Subscriber and is therefore subject to the restrictions on disclosure and use set forth in Section 5.2 (a) above. Notwithstanding the foregoing, UptimeHealth may use Subscriber Data or other Confidential Information of Subscriber to (i) provide the Services to Subscriber as contemplated herein, (ii) monitor Subscriber’s and it Registered Users’ use of the Platform and the Services for security purposes, (iii) enforce the terms of this Agreement, and (iv) to improve and expand the features and functionality of the Platform and the Services for Subscriber and other UptimeHealth customers (with UptimeHealth’s right set forth in this clause (iv) surviving any expiration or termination of this Agreement).
(c) Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Party disclosing such Confidential Information gives prompt notice to the other Party of any such order and reasonably cooperates with the other Party at the other Party’s request and expense to resist such order or to obtain a protective order.
5.3 Equitable Relief. Because unauthorized access, use, disclosure or transfer of the Confidential Information or other intellectual property of either Party in violation of this Section 5 of this Agreement will diminish substantially the value of such Confidential Information or other intellectual property and irreparably harm the owner of such Confidential Information or intellectual property, if either Party breaches the provisions of this Section 5 of this Agreement, the other Party shall be entitled to seek equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, without providing a bond or other security, in addition to any other remedy to which such Party may be entitled at law or in equity.
6. Limited Warranty; Limitations of Liability.
6.1 Warranty. UptimeHealth warrants to Subscriber that the Platform shall perform substantially in accordance with the Documentation. UptimeHealth’s sole obligation, and Subscriber’s sole remedy, with respect to any breach of this limited warranty of performance shall be for UptimeHealth to correct such nonconformance, or, if UptimeHealth is unable to do so in a timely manner, refund to Subscriber actual damages up to a limit of the Subscription Fees paid for the period during which the breach of warranty occurred.
6.2 Except for the warranty set forth inSection 6.1 above, UptimeHealth makes no representation or warranty whatsoever, and hereby disclaims all representations and warranties, with respect to the Platform and the Services (in each case whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise), including any warranty (a) of merchantability, fitness for a particular purpose, or noninfringement, (b) that the Platform or the Services will meet Subscriber’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error, (c) as to the results that may be obtained from the use of the Platform or the Services, or (d) as to the accuracy or reliability of any information obtained from the Platform or theServices.
6.3 UptimeHealth shall in no event be liable for any indirect, special, incidental, exemplary, punitive or consequential damages arising out of or in connection with the use or performance of the Platform or the Services, whether or not UptimeHealth has been made aware of the possibility of such damages, including but not limited to any damages resulting from loss of data or content or lost profits.
6.4 UptimeHealth’s liability for damages to subscriber for any claims whatsoever, but excluding indemnification obligations set forth in Section 7 hereof, and for all claims in the aggregate, regardless of the form of any claim or action, shall not exceed the Subscription Fees paid under this Agreement during the twelve (12) month period prior to when the most recent claim arose.
6.5 Subscriber acknowledges and agrees that the Subscription Fees and other fees under this Agreement have been agreed by UptimeHealth in reliance on limitations of liability and disclaimers of warranty set forth in Sections 6.2, 6.3 and 6.4 above and that these provisions are an essential term of this Agreement.
6.6 Annulment for Improper Use. Any use of the Platform or the Platform Services in contravention with the terms of this Agreement or the Documentation may annul the warranty set forth in Section 6.1
7.1 UptimeHealth shall defend, indemnify, and hold harmless Subscriber and its officers, directors, employees, and shareholders from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“Damages”) arising out of any third party claim or allegation (a “Claim”) that Subscriber’s use or access of the Platform or the Platform Services in accordance with the terms of this Agreement infringes the patent, copyright or other intellectual property right of any third party, except to the extent: (a) due to any Subscriber Content or specific materials that Subscriber uses or uploads into the Platform; or (b) such claim is based on Subscriber’s unauthorized or unlawful use of the Platform or the Platform Services (i) in combination with other services and products not supplied by UptimeHealth and not required by the Documentation or (ii) in contravention of the Documentation or UptimeHealth’s express written directions.
7.2 Subscriber shall defend, indemnify, and hold harmless UptimeHealth and its officers, directors, employees, and shareholders from and against any and all any Damages, including but not limited to reasonable legal fees and expenses, arising out of any third-party Claim based on Subscriber’s use of the Platform or the Platform Services, except to the extent covered by the indemnification under Section 7.1.
7.3 If Subscriber or UptimeHealth intends to claim indemnification hereunder (for itself or for another indemnitee) with respect to any Damages arising under a Claim, then Subscriber or UptimeHealth (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) of any Claim in respect of which the Indemnified Party (whether for itself or for one of the persons entitled to indemnification under Section 7.1 or 7.2) intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel of the Indemnifying Party’s choice. The indemnity agreement in this Section 7 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is affected without the consent of the Indemnifying Party, which consent shall not be withheld or delayed unreasonably. The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party becomes aware of any such matter, if prejudicial to Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability under this Section 7 with respect to such Claim. The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification.
7.4 Should the Platform or the Platform Services become, or in UptimeHealth’s opinion, be likely to become the subject of a claim or an injunction preventing its use as contemplated herein, UptimeHealth may, at its option (a) procure for Subscriber the right to continue to access the Platform or the Platform Services hereunder, (b) replace or modify the Platform or the Platform Services so that it becomes non-infringing, or, if UptimeHealth determines, in its sole discretion, that (a) and (b) are not commercially practical for UptimeHealth, then (c) UptimeHealth may terminate this Agreement and refund to Subscriber a pro-rated amount of the Subscription Fees paid in advance, if any.
7.5 This Section 7 states the entire liability of UptimeHealth with respect to infringement of third party intellectual property rights by the Platform Services or Platform or any part thereof or by its operation.
8.1 Publicity. This Agreement does not grant either Party the right to use any trademark, trade name or logo of the other Party in any advertising or promotional material, except that UptimeHealth may identify Subscriber as a customer of UptimeHealth, including as a subscriber of the Platform, in promotional materials and published lists of UptimeHealth’s customers. Subscriber further agrees that, during the Pilot Period and during the Expansion / Subscription Period, UptimeHealth may issue an initial and subsequent press releases, in a form to be mutually agreed by Subscriber and UptimeHealth, describing this Subscription, including a quote from Subscriber.
8.2 Entire Agreement. This Agreement (which includes the Order Form, the Platform Description, and the Subscription Terms and Conditions) constitutes the entire agreement between UptimeHealth and Subscriber with respect to the subject matter hereof. No addendum, waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either Party unless in writing and signed by duly authorized officers of Subscriber and UptimeHealth.
8.3 Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable.
8.4 Assignments. Neither Party may assign this Agreement or its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. This Agreement shall inure to the benefit of the Parties and their permitted successors and assigns.
8.5 Notices. Any notice by a Party under this Agreement shall be in writing and either personally delivered or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested addressed to the other Party to (a) the address on the Order Form (b) or, in each case, such other address of which either Party may from time to time notify the other in accordance with this Section 8.5. All notices shall be in English and shall be deemed effective on the date of personal delivery, one business day after deposit with an overnight courier, or five (5) business days after deposit in the mail.
8.6 GoverningLaw; Venue. The validity, construction and interpretation of this Agreement, and the rights and duties of the Parties, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A. The United National Convention for the International Sale of Goods shall not apply. Other than as necessary to enforce any final judgment, award or determination or to obtain a preliminary injunction or other equitable relief to safeguard a party’s intellectual property or confidential information, any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the Commonwealth of Massachusetts without regard to its conflict of law provisions and both Parties submit to the personal jurisdiction, and waive any objections to venue, of such courts.
8.7 No Waiver. The waiver by either Party of a breach of a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such Party.
8.8 Section Headings. Captions and section headings hereof are for reference purposes only and shall not control or alter the meaning of this Agreement as set forth in the text.
8.9 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster the Party who has been so affected shall immediately give notice to the other Party and shall do everything reasonably possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. Nothing provided herein shall excuse the delay of any payment that is validly due by Subscriber under this Agreement.
- Acceptance of Terms.
- Use of Site and Services.
- use the Sites and Services in any manner that violates any relevant law or that infringes, misappropriates or violates any third party’s rights, including, but not limited to, transmitting any Content that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, fiduciary rights or intellectual property rights;
- reproduce, duplicate, copy, modify, sell, re-sell or exploit any Content or the Sites and Services for any commercial, educational, or any other non-personal purpose or any for any purpose unrelated to your personal purchasing decisions, without the express written consent of UptimeHealth, which consent may be withheld by UptimeHealth in our sole discretion;
- post irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure, interfere or attempt to interfere with the proper working of the Sites and Services or any activities conducted on the Sites and Services;
- harass, threaten, intimidate, impersonate, or attempt to impersonate, any other person, falsify your contact or other information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with UptimeHealth, or otherwise attempt to mislead others as to the identity of the sender or the origin of a review or rating;
- knowingly provide or submit false or misleading information;
- use the Sites and Services if you are under the age of eighteen (18);
- take any action that would undermine the review and rating process under the Sites and Services;
- attempt to gain unauthorized access to the Sites and Services, other user accounts, or other computer systems or networks connected to the Sites and Services;
- use the Sites and Services in any way that could interfere with the rights of UptimeHealth or the rights of other users of the Sites and Services;
- attempt to gain unauthorized access to any portion or feature of the Sites and Services, or any other systems or networks connected to the Sites and Services or to any server used by UptimeHealth by hacking, password ‘mining’ or any other illegitimate or unauthorized means, including attempting to obtain password, account, or any other personal or private information from any other Sites and Services user;
- transmit or submit any transmission or other materials that are encrypted or that contains viruses, Trojan horses, worms, time bombs, spiders, cancelbots or other computer programming routines that is likely or intended to damage, interfere with, disrupt, impair, disable or otherwise overburden the Sites and Services;
- access, download, monitor, or copy any information contained on our Sites and Services through artificial means (including but not limited to use any ‘deep-link’, ‘scraper’, ‘robot’, ‘spider’ or other automatic device, program, algorithm or methodology, or any similar or equivalent automatic or manual process, or in any way reproduce or circumvent the navigational structure or presentation of the Sites and Services or any content, to obtain or attempt to obtain any Content, materials, documents or information through any means not purposely made available through the Sites and Services; or
- probe, scan or test the vulnerability of the Sites and Services or any network connected to the Sites and Services, nor breach the security or authentication measures on or of the Sites and Services or any network connected to the Sites and Services. You may not reverse look-up, trace or seek to trace any information on any other user of the Sites and Services, or any other customer of UptimeHealth, including any UptimeHealth account not owned by you, to its source, or exploit the Sites and Services or any service or information made available or offered by or through the Sites and Services, in any way where the purpose is to reveal any information, including but not limited to personal identification or information other than your own information, except as expressly authorized by UptimeHealth and provided for by the Sites and Services.
- Registration Information. We may require that you create an account to use or access certain parts of the Sites and Services and use certain products and features. We may require that you provide login information such as a username and password to access and utilize your account. As a condition of your use of the Sites and Service, you agree to (a) provide UptimeHealth with true, accurate, current and complete information as prompted by the UptimeHealth’s registration forms, when registering for or using the Sites and Services and (b) update and maintain the truthfulness, accuracy and completeness of such information. You are responsible for maintaining the confidentiality of any password or other account information not generally available to others and are fully responsible for all activities that occur under your username and password. While there are limited, legitimate reasons for creating multiple accounts, creating serial or overlapping accounts may result in account termination. Please contact us if you have questions about managing multiple accounts.
- Submitting Content. As a condition of submitting any Content or other materials to the Sites or Services, you agree that:
- you grant to UptimeHealth a royalty free, perpetual, irrevocable, worldwide, nonexclusive, transferable, and sublicensable license to use, reproduce, copy, adapt, modify, merge, distribute, publicly display, create derivative works from, incorporate such Content into other works;
- you grant to UptimeHealth all rights necessary to publish or refrain from publishing your name and address in connection with your Content; sublicense through multiple tiers the Content, and acknowledge that this license cannot be terminated by you once your Content is submitted to the Sites and Services
- you grant to UptimeHealth all rights necessary to prohibit the subsequent aggregation, display, copying, duplication, reproduction, distribution, or exploitation of your Content by any other party
- your name and report information may be made available to the public and to the Service Providers on which you report;
- you are solely responsible for your reviews and ratings
- UptimeHealth may, in its sole discretion, choose to remove or not to remove reviews and ratings once published
- you will not submit any reviews that may be considered by UptimeHealth to be infringing, harassing, libelous, abusive, threatening, obscene, profane, hateful, offensive, harmful, vulgar, distasteful, defamatory, or otherwise violates any relevant law or right of any other party, or racially, ethnically or otherwise objectionable
- all of your reviews and ratings will either be based upon (i) your actual first-hand experiences with the Service Providers you are reviewing or (ii) as provided below, an individual and that individual’s actual first-hand experience with a health care or wellness provider whereby you have the legal authority to disclose such health information and experience of such individual
- all of your reviews and ratings of the Service Providers that you are rating will be accurate, honest, truthful, and complete in all respects
- you do not work for, own any interest in or serve on the board of directors of, any of the Service Providers for which you submit reviews and ratings; you are not in any way related (by blood, adoption or marriage, if the Service Provider is an individual) to any of the Service Providers for which you submit reviews or ratings;
- you have not received any form of compensation to post reviews and ratings
- you will submit thorough and thoughtful reviews of the Service Providers you review (for example, submitting a review describing a service contractor as “He/She is great.” Without additional commentary is not a thorough and thoughtful review);
- you will not submit reviews that comment on other users or the reviews of other users
- you will not submit reviews with hyperlinks;
- the reviews and ratings that you provide do not reflect the views of UptimeHealth, its officers, managers, owners, employees, agents, designees or other users.
- Publication and Distribution of Content.
- UptimeHealth does not guarantee the accuracy, integrity, quality or appropriateness of any Content transmitted to or through the Service. You acknowledge that UptimeHealth simply acts as a passive conduit and an interactive computer service provider for the publication and distribution of Content and for the publication and distribution of any content posted by Service Providers in response to Content (“Service Provider Content”). You understand that all Content and Service Provider Content posted on, transmitted through or linked through the Service, are the sole responsibility of the person from whom such Content originated. You understand that UptimeHealth does not control, and is not responsible for Content or Service Provider Content made available through the Service, and that by using the Service, You may be exposed to Content that is inaccurate, misleading, or offensive. You agree that You must evaluate and make Your own judgment, and bear all risks associated with, the use of any Content and Service Provider Content.You further acknowledge that UptimeHealth has no obligation to screen, preview, monitor or approve any Content or Service Provider Content, or Content posted or submitted by any other UptimeHealth member or any Service Provider. However, UptimeHealth reserves the right to review and delete any Content that, in its sole judgment, violates the terms and conditions of this Agreement. By using the Service, You agree that it is solely YOUR RESPONSIBILITY to evaluate Your risks to bear associated with the use, accuracy, usefulness, completeness or appropriateness of any Content that You submit, receive, access, transmit or otherwise convey through the Service. Under no circumstances will UptimeHealth be liable in any way for any Content or Service Provider Content, including, but not limited to, any Content or Service Provider Content that contains any errors, omissions, defamatory statements, or confidential or private information (including, but not limited to, health information) or for any loss or damage of any kind incurred as a result of the use of any Content or Service Provider Content submitted, accessed, transmitted or otherwise conveyed via the Service. You waive the right to bring or assert any claim against UptimeHealth relating to Content or Service Provider Content, and release UptimeHealth from any and all liability for or relating to any Content or Service Provider Content
- You agree that UptimeHealth may establish general practices, policies and limits, which may or may not be published, concerning the use of the Sites and Services, including without limitation, the time that reviews and ratings will be retained, the maximum number of reviews and ratings that may be sent from an account, the length of reviews and ratings sent, and the maximum number of times and the maximum duration for which you may access the Sites and Services in a given period of time. You agree that UptimeHealth has no responsibility or liability for the deletion or failure to store any Content or other materials maintained or transmitted by or through the Sites and Services. You agree that UptimeHealth has the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
- Service Providers.
- UptimeHealth does not endorse and is not responsible or liable for any Content, data, advertising, products, goods or services available or unavailable from, or through, any third party or Service Provider (which includes, but is not limited to, health care and wellness providers). You agree that should you use or rely on such Content, data, advertisement, products, goods or services, available or unavailable from, or through any third party or Service Provider (which includes, but is not limited to, health care and wellness providers), UptimeHealth is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of any Service Provider (which includes, but is not limited to, health care and wellness providers), and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Provider (which includes, but is not limited to, health care and wellness providers) exclusively and do not involve UptimeHealth. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Service Providers (which includes, but is not limited to, health care and wellness providers).
- Third parties and Service Providers may link or otherwise direct Internet users to our Sites and Services for the purpose of utilizing one or more of the services we provide on behalf of others. Additionally, we may provide links or otherwise direct you to third party or Service Provider websites. UptimeHealth does not control or operate any such third party or Service Provider websites. Any information you provide to these third party or Service Provider websites while on these third party or Service Provider websites is subject to the respective policies of those third parties or Service Providers, and not UptimeHealth’s policies. It is your responsibility to review such third party or Service Provider policies, including any relevant privacy policies. You agree that UptimeHealth will not be responsible or liable for, and does not endorse any content, advertising, goods or services provided on or through these outside websites or for your use or inability to use such websites. UptimeHealth does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give to any third party or Service Provider sites. You use these third party or Service Provider websites at your own risk.
- You agree that UptimeHealth is not responsible for the accessibility or unavailability of any Service Provider (which includes, but is not limited to, health care and wellness providers) or for your interactions and dealings with them, waive the right to bring or assert any claim against UptimeHealth relating to any interactions or dealings with any Service Provider (which includes, but is not limited to, health care and wellness providers), and release UptimeHealth from any and all liability for or relating to any interactions or dealings with Service Providers (which includes, but is not limited to, health care and wellness providers).
- UptimeHealth is not a Service Provider and is not acting as a service provider. UptimeHealth and its website is merely acting as a connection between customers and Service Providers. You agree to not hold UptimeHealth liable for any damages or liability that may occur from a Service Provider hired through the website or introduced by UptimeHealth.
- Without limiting the foregoing, your correspondence or business dealings with, consumption of products or services of, or participation in promotions of, third parties or Service Providers found on or through the use of the Sites and Services, including payment for and delivery or fulfillment of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. You agree that UptimeHealth shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties or Service Providers on the UptimeHealth Sites and Services.
- Health Related Providers.
- The Sites and Services and its Content are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Sites and Services
- If you think you may have a medical emergency, call your doctor or 911 immediately. UptimeHealth does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Sites and Services. UptimeHealth is not a health or wellness provider and cannot recommend or refer you to any health or wellness provider. Reliance on any information provided by UptimeHealth, its employees and others appearing on the Sites and Services at the invitation of UptimeHealth, or other visitors to the Sites and Services is solely at your own risk
- The Sites and Services may contain health-related materials that are sexually explicit. If you find these materials offensive, should not use the Sites and Services. You should be aware that if you post any health-related information about yourself or anyone else on the Sites and Services, you do so at your own risk. If you post health information about services rendered to another individual, you represent that you have the legal authority to receive health information about that individual from that individual’s health care providers and that you have the legal authority to further disclose such health information. If you post health-related information, you will be placing it into the public domain which may violate federal or state laws that protect the privacy of health information. You also acknowledge that the health care or wellness provider about whom you submit Content may submit Content that contains your private or confidential health information in response to Content you submit. UptimeHealth is not liable for any such Content. UptimeHealth cannot be expected to keep you health information confidential if you post it to the Sites or Services or otherwise make it available to others.
- Termination of Access.
- UptimeHealth may terminate your privilege to use or access the Sites and Services immediately and without notice for any reason whatsoever. Upon such termination, you must immediately cease accessing or using the Sites and Services and agree not access or make use of, or attempt to use, the Sites and Services. Furthermore, you acknowledge that UptimeHealth reserves the right to take action — technical, legal or otherwise — to block, nullify or deny your ability to access the Sites and Services. You understand that UptimeHealth may exercise this right in its sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to UptimeHealth.
- Notice for California Users.
- Under California Civil Code Section 1789.3, California web users are entitled to the following specific consumer rights notice: The Services are provided by UptimeHealth, Inc., 55 Court St., Floor 2, Boston, MA 02203. If You have any questions, concerns, or complaints regarding the Services, please contact UptimeHealth, Inc. by either sending: (i) an email to firstname.lastname@example.org; or (ii) a letter, first class certified mail, to UptimeHealth, 55 Court St., Floor 2, Boston, MA 02203.
- California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
- Trademarks and Copyrights.
- UptimeHealth, and other Sites and Services graphics, logos, designs, page headers, button icons, scripts, and service names are the trademarks or trade dress of UptimeHealth in the U.S. and/or other countries. These trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, keyword advertisements, or email addresses, or in connection with any product or service in any manner that is likely to cause confusion.
- You should assume all Content and material made available on the Sites and Services is protect by copyright law. Aside from user-submitted Content, all other materials and other information on the Sites and Services, including, but not limited to, all text, graphics, logos, icons, images, audio and video clips, downloads, data compilations and software are the exclusive property of UptimeHealth and/or its licensors and are protected by all United States and international copyright laws.
Updated April 22, 2020
Contract For Equipment Service Terms and Conditions:
- Applicability of Terms.
- These terms and conditions have been presented as an integral part of an offer for provision of preventative maintenance services, repair, or support (the “Services”) by UptimeHealth Inc (“Service Provider”) to the Client (“Client”). Acceptance of the offer is EXPRESSLY CONDITIONAL on these terms and conditions, to the exclusion of any different or additional terms.
- These terms and conditions, or as modified by the particular terms of the first page of this Preventative Maintenance Agreement “Agreement”, constitute the entire agreement between the parties for the provision of the Services. No course of dealing or usage of trade shall control this transaction. Any purchase order or other confirming document transmitted with an acceptance is for Client’s accounting purposes only, the terms of which are intentionally excluded from this Agreement. Neither Service Provider nor Client has entered into this Agreement in reliance upon any representation, warranty, condition, or undertaking of any other party which is not set out in this Agreement.
2. Non Circumvention. The Client acknowledges that UptimeHealth’s business relies on the disclosure of information about contracted vendors and service providers for equipment services to the Client. The Client agrees that it will not at any time attempt to deal directly in any manner or circumvent UptimeHealth or otherwise exploit the relationship with or attempt to directly negotiate services with vendors and service providers disclosed by UptimeHealth without express written permission from the UptimeHealth for a period of at least three years after the expiration of the agreement.
3. Nature of the Services. The Services under this Agreement consist of a number (which is identified in the Service Order Form) of annual maintenance routines, repairs, or support to be performed by Service Provider on the machine(s) identified on the first page. The Services do not include any diagnostic work, engineering, repairs, parts, labor, or expenses not specifically included on the first page of the Agreement.
4. Scheduling. Client is responsible for contacting Service Provider and scheduling all of the Services within the term of the Agreement.
5. Payment. Client agrees to pay the amount described on the first page of this Agreement. Unless paid in a lump sum, payment under this Agreement will be made by automatic Electronic Funds Transfers (EFT’s). To accomplish this, Client will provide their account information and authorization on the “Authorization Agreement for Electronic Funds Transfer and Automatic Payments” form which will be provided. Credit Card payments may be accepted at the discretion of Service Provider and will be subject to a convenience fee.
6. Term. The term of the Agreement is one (1) year, unless otherwise indicated on the first page of this Agreement.
7. Client Responsibilities. Client acknowledges that Service Provider’s ability to perform under this Agreement is conditioned on Client performing certain responsibilities such as those listed on the first page of this Agreement and: 1) providing safe and secure access to the equipment subject to this Agreement during normal business hours, 2) maintain environmental controls (temperature, humidity, dust, etc.) in the equipment’s location to the manufacturer’s standards, 3) complying with all federal, state and local laws and regulations (including but not limited to obtaining any licenses, permits or other authorizations required to operate the equipment), 4) paying any taxes, interest and penalties incurred in connection with this Agreement (including but not limited to sales and use taxes), and 5) preventing any protected health information on the equipment from improper disclosure under HIPAA.
8. Force Majeure. Neither party shall be considered to be in breach of this Agreement to the extent that their performance is prevented due to circumstances beyond its reasonable control (including but not limited to flood, fire, earthquakes or other acts of God, accidents, riots, wars, acts of terrorism, operation of law, government regulations or requirements, strikes, labor difficulties, shortages of fuel, power, materials or supplies, or unavailability of transportation).
9. Right to Subcontract. Service Provider retains the right to subcontract the Services to a qualified vendor. Service Provider remains responsible for the quality of the Services and in the event a subcontractor performs the Services to Client, Client agrees to direct communications about the equipment and the services to Service Provider. Client remains responsible for its obligations under this Agreement in any event.
10. Cancellation. Either party may cancel this Agreement at any time, after providing seven (7) days’ written notice to the other party. In the event the Agreement is canceled other than at the end of a contract year, the Client will be responsible to pay for the Services that have been performed by Service Provider, based on the rates set forth in this agreement. In the event a credit is owed client on that basis, Service Provider will refund the amount of credit on receipt of a request from Client. Any credits that are not refunded will remain on Client’s account for future services.
- Service Provider warrants that its Services will be performed in a workmanlike manner and according to current manufacturer specifications for such equipment. CLIENT’S EXCLUSIVE REMEDY, AND SERVICE PROVIDER’S SOLE OBLIGATION, FOR ANY BREACH OF THIS OR ANY OTHER WARRANTY HEREUNDER SHALL BE FOR SERVICE PROVIDER, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS OWN EXPENSE, AND FAILING THAT, TO RETURN ANY FEES PAID TO SERVICE PROVIDER FOR THE SERVICES RELATED TO SUCH BREACH.
- THE PRECEDING IS SERVICE PROVIDER’S ONLY WARRANTY CONCERNING THE SERVICES AND DELIVERABLES, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING AND PERFORMANCE OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTIES OR GUARANTEES WITH RESPECT TO OUTCOME RESULTING FROM THE SERVICES.
12. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS OR LOST SAVINGS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY), UNDER STATUTE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. Service Provider’s limit of liability for ALL claims, demands, lawsuits, arbitrations or other disputes related to this Agreement is equal to amount of the cost of this Agreement actually received by Service Provider.
13. Assignment. Service Provider may not transfer or assign its interests and obligations under this Agreement to a third party without the consent of Client. If Client continues the Agreement with the assignee, Client will release and hold Service Provider harmless from any liability thereafter.
14. Indemnification. Client shall defend, indemnify and hold harmless Service Provider from and against any third party claims, demands, loss, damage or expense relating to or resulting from 1) a breach of any promise, representation or warranty under this Agreement, 2) bodily injury or death or damage to property related to the operation of the equipment subject to this Agreement, and 3) any willful or negligent act or omission of Client.
15. Notices. Any notices required under this Agreement may be effectively transmitted to the other party by: 1) certified mail with return receipt, 2) personal delivery to the office of the other party, and 3) email delivery to an address that has been part of regular direct communications between the parties.
16. General Terms. The terms of this Agreement relating to Warranty, Limitations of Liability, and Indemnification shall survive any termination or expiration of this Agreement. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against which it is sought to be enforced. The delay or failure by either party to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed a waiver of that party’s right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
17. Governing Law, Dispute Resolution. This Agreement shall be construed and governed according to the laws of the State of Massachusetts. The provisions of any conflict-of-laws provisions that would require application of another choice of law, are excluded. In the event of any dispute arising from or relating to the Agreement, the parties hereto shall initially use their best efforts to amicably settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach a mutually satisfactory solution.
Last Updated April 22, 2020. TeleTech Subscription License Agreement. Together this Agreement and TeleTech services order form (“Order Form”), including any documentation referenced in the Order Form collectively form this “Agreement”. The Parties agree as follows:
UptimeHealth has developed a software as a service platform, located at uptimehealth.com which is a video engagement and communication platform that provides exceptional remote support (the “SaaS Services”). Customer wishes to utilize the SaaS Services, and UptimeHealth desires to make the SaaS Services available to Customer subject to the terms and conditions of this Agreement.
2. License Grant
(a) Subject to the payment of all subscription fees as set forth in an Order Form, and Customer’s compliance with all the terms and conditions of this Agreement, UptimeHealth grants to Customer (and each of its Affiliates as such term is defined below) a limited, non-exclusive, non-transferable license to access and use the SaaS Services for its internal business purposes only by their employees, agents, contractors, consultants, suppliers or other individuals who are authorized by Customer to use the SaaS Services in the quantity (or other metric) identified in the Order Form (“Authorized Users”). Customer understands and agrees that Customer (and each of the entities within the same corporate group as the Customer from time to time) is not permitted to sublicense, license, sell, resell, lease, rent or otherwise transfer the SaaS Services, or cause the SaaS Services to be available to any third party without the prior written consent of UptimeHealth. The term “Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934, as amended.
(b) UptimeHealth retains all ownership to all rights, title and interest in any and all copyrights, trademark rights, patent rights, or other intellectual property or other rights to the SaaS Services and any improvements or custom modifications requested by or contributed to by Customer to extend the capabilities of the SaaS Services. Except for the limited rights expressly granted herein, this Agreement does not transfer from UptimeHealth any proprietary right or interest in the SaaS Service. Upon the termination or expiration of the Subscription Term set forth in the Order Form, Customer’s right to access or use the SaaS Services shall terminate.
(c) Customer shall not, and shall ensure that its Authorized Users do not: (a) copy, translate, disassemble, decompile, reverse-engineer or otherwise modify any parts of the SaaS Services; (b) transmit any content, data or information that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable; (c) infringe the intellectual property rights of any entity or person; (d) interfere with or disrupt UptimeHealth systems used to host the SaaS Services; (e) access the SaaS Services for the purpose of identifying opportunities to circumvent UptimeHealth, building a competitive product, or service or copying its features or user interface; (f) permit access to the SaaS Services by a direct competitor of UptimeHealth; or (g) make any use of the SaaS Services that violates any applicable local, state, national, international or foreign law or regulation.
(d) The SaaS Services may contain links to external websites and information provided on such external websites. UptimeHealth shall not be responsible for the contents of any linked website.
(e) Customer is responsible for monitoring it’s use of the SaaS Services. Customer shall promptly report to UptimeHealth any use in excess of the number of Authorized Users set forth on the Order Form. UptimeHealth is entitled to monitor the number of Authorized Users to ensure compliance with the Agreement. Customer shall pay fees for any usage in excess of that permitted in the Order Form and Customer agrees that such fees shall accrue from the date the excess use began.
(f) UptimeHealth may change or modify the SaaS Services at any time but agrees that it shall not materially diminish the functionality of the SaaS services during the Subscription Term defined in the Order Form., and will use reasonable commercial efforts to provide Customer thirty (30) days advance notice of any such modifications.
(g) Any implementation, configuration, training or other similar services related to the SaaS Services, including implementation or configuration of optional or supplemental features to the SaaS Services, as set forth in the Order Form as Consulting Services (“Consulting Services”) are not included in the subscription fees unless specifically provided for in an Order Form.
(h) Customer agrees that its purchase of the SaaS Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written statements by UptimeHealth.
3. Customer Data
(a) The Parties acknowledge and agree that UptimeHealth will not monitor the content of any calls made in connection with Customer’s use of the SaaS Services. In addition, the Parties acknowledge and agree that UptimeHealth does not need to receive PII or CPNI (as such terms are defined below) to provide the Technology, Services or otherwise perform its obligations under this Agreement. As such, the Parties agree that Customer will not provide any PII or CPNI to UptimeHealth in connection with this Agreement.
(b) All data owned by Customer (“Customer Data”) is securely stored and held as confidential. UptimeHealth will use commercially reasonable security technologies (including but not necessarily limited to encryption, password protection and firewall protection) in providing the SaaS Services. Customer shall have a period of sixty (60) days from the end of the Subscription Term to request, in writing, an export of any Customer data from UptimeHealth. Thereafter, UptimeHealth will delete and destroy all copies of data once the Subscription Term expires or is terminated.
(c) “Personally Identifiable Information” or “PII” means any information that refers, is related to, or is associated with an identified or identifiable individual, including, but not limited to, an individual’s first name or first initial and his or her last name in combination with any one or more of the following data elements: (i) Social Security number, (ii) driver’s license number or state identification card number, (iii) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account or (iv) any individually identifiable information regarding an individual’s medical history or medical treatment or diagnosis by a health care professional.
(d) “Customer Proprietary Network Information” or “CPNI” has the meaning given to such term in 47 U.S.C. § 222(h)(1), 47 C.F.R. § 64.2003(g), and any other applicable rules that may be adopted by the Federal Communications Commission (FCC) during the term of this Agreement
4. Customer Responsibilities
(a) Customer shall provide UptimeHealth with a list of all Authorized Users. Customer will be responsible for making sure that the SaaS Services will only be used by such Authorized Users. Upon making any change to the list of Authorized Users, Customer shall provide UptimeHealth with an updated list of the Authorized Users within 30 days of the change.
(b) Customer shall be responsible for entering its Customer Data into the SaaS Services and the Customer shall be responsible for the content of the Customer Data supplied by Customer. Customer agrees that it has collected and shall maintain and handle all Customer Data in compliance with all applicable data privacy and protection laws, rules and regulations. Further, Customer is solely responsible for determining the suitability of the SaaS Service for Customer’s business and complying with any regulations, laws, or conventions applicable to the Customer Data and Customer’s use of the SaaS Services.
(c) Customer shall maintain commercially reasonable security standards for its and its Authorized Users use of the SaaS Services, including, without limitation, making sure that login and access to the SaaS Services is restricted to the Authorized Users.
(d) Customer is solely responsible for the content of communications transmitted by Customer or Customer’s clients using the SaaS Services, and shall defend, indemnify and hold harmless UptimeHealth from and against all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from or relating to any claim by any person, company, entity or governmental authority based upon the content of any such communications.
(e) Security: UptimeHealth security processes are set forth in the documentation provided online by our partner company https://www.blitzz.co/security
5. Fees and Payment
(a) UptimeHealth pricing is set forth in the Order Form. All fees are non-refundable. If Customer exceeds the number of Authorized Users listed on any Order Form, UptimeHealth may require Customer to execute a new Order Form.
(b) Payments of all subscription fees, as provided on any Order Form, are due and payable to UptimeHealth on receipt of the invoice. Payments not made within thirty (30) days from the date of invoice will accrue interest at the rate of one percent (1%) per month or the highest amount permitted by law, whichever is less.
(c) UptimeHealth shall have the right to suspend the SaaS Services if payment is not received within 30 days of the date of invoice.
(d) The Fees are exclusive of all applicable taxes or duties. If UptimeHealth is required to pay or collect any local, value added, goods and services taxes, or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on UptimeHealth income), then such taxes and/or duties shall be billed to and paid by Customer.
6. Term and Termination
(a) The term of this Agreement begins on the Effective Date set forth above and remains in effect until terminated in accordance with the terms of this Agreement.
(b) Trial Termination. If applicable, during the Trial Period as set forth on the Order Form, the Subscriber may terminate the Agreement at any time upon one (1) day written notice to UptimeHealth.
(c) The term of each Order (the Subscription Term) is set forth on the Order Form. The Subscription Term for each Order Form shall automatically renew for identical successive periods unless either party notices the other Party of its intent not to renew at least thirty (30) days before the end of the then current term of the Order Form.
(d) Either party may terminate an Order Form without cause at any time after the initial 90 days of the Subscription Period set forth on the Order Form. In order to exercise this right, the terminating party must provide at least sixty (60) days written notice to the non-terminating party.
(e) Neither expiration nor earlier termination of this Agreement shall release either party from any obligation which has accrued as of the date of termination, nor shall any termination of this Agreement or abandonment of the SaaS Services relieve Customer of its obligation to pay fees that remain unpaid.
(f) Notwithstanding the foregoing, either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event such other party materially breaches any provision of this Agreement, unless the breaching party has cured such breach during the thirty (30) day notice period.
(g) Customer’s failure to pay fees to UptimeHealth, or any successor in interest, shall be considered a material breach of this Agreement.
(h) Customer agrees that UptimeHealth may deactivate Customer’s user name(s) and password(s) and/or temporarily suspend access to the SaaS Services if and to the extent UptimeHealth reasonably determines and can substantiate that the continued use of the SaaS Services by Customer may result in harm to the SaaS Services (including the security of the systems used to provide the SaaS Services), other UptimeHealth customers or the rights of third parties.
(i) The parties expressly agree that Articles 6, 8, 10, 11, 12 and 13 shall survive expiration or termination of this Agreement.
(j) Upon termination of this Agreement, Customer’s access to the SaaS Services shall immediately terminate. Anything to the contrary herein notwithstanding, immediately upon the termination of this Agreement, each shall return to the other party any Confidential Information belonging to such other party.
(a) The Parties acknowledge and agree that they each may come into contact with confidential or proprietary information of the other Party, including but not limited to, components or elements of the SaaS Services, business plans and information, client and customer data, sales and product plans and data (“Confidential Information”). Notwithstanding anything in this Agreement to the contrary, the term “Confidential Information” shall not include any information that: (i) is or becomes generally known to the public other than as a result of a disclosure in breach of this Agreement; (ii) is rightfully in the possession of a Party prior to disclosure by the other Party; (iii) is received by a Party in good faith and without restriction from a third party having the right to make such disclosure and not under a confidentiality obligation to the other Party; or (iv) is independently developed by a Party without reference to the Confidential Information of the other Party, which such development may be demonstrated by documentation. The Parties acknowledge that the disclosure or unauthorized use of Confidential Information may cause irreparable injury and damages may not be readily ascertainable. The Parties shall, therefore, be entitled to seek injunctive relief upon a disclosure or improper use, or threatened disclosure or improper use, of any Confidential Information in addition to such other remedies as may be available at law or in equity.
(b) Non-use and Non-disclosure. The Parties shall, at all times, both during the Term of this Agreement and thereafter so long as such information continues to meet the definition of Confidential Information, use commercially reasonable efforts to keep all Confidential Information of the other Party confidential and shall only disclose the other Party’s Confidential Information to those of its employees and permitted third parties as are necessary to fulfill such Party’s obligations under this Agreement. The Parties each further agree that they will not, directly or indirectly, disclose any of the other Party’s Confidential Information to any third party or use any of the other Party’s Confidential Information for any purpose other than in furtherance of this Agreement except as specifically permitted by this Agreement or with the other Party’s prior written consent. Each Party will only allow those its employees and contractors to access the Confidential Information of the other Party that have a need to know in order to properly perform its obligations or exercise its rights under this Agreement and who are bound by the confidentiality provisions herein.
(a) UptimeHealth warrants that the SaaS Services will substantially conform to any specifications set forth in any documentation specifically referenced in the Order Form. The foregoing warranty shall not apply to the extent: (i) the SaaS Services are not being used in accordance with this Agreement; (ii) any non-conformity is caused by third party products; content or services being accessed through the SaaS Services; or (iii) the SaaS Services being used for no fee. Customer’s sole and exclusive remedy and UptimeHealth’s entire liability for breach of the limited warranty provided in this Article, shall be correction of the warranted non-conformity. Customer shall provide UptimeHealth with prompt written notice of any non-conformity described in this Article with thirty (30) days of Customer’s discovery of such non-conformity. If UptimeHealth is not able to correct such non-conformity within a commercially reasonable amount of time after notification by Customer, Customer shall have the right to terminate the applicable Order Form.
(b) UptimeHealth warrants that should it perform any Consulting Services, as provided on the Order Form, it will provide such Consulting Services in a workmanlike and professional manner consistent with generally accepted industry practices. Customer’s sole and exclusive remedy from UptimeHealth, and UptimeHealth entire liability to the Customer for breach of the limited warranty in this Article shall be the reperformance of such deficient Consulting Services.
(c) EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 9 UPTIMEHEALTH MAKES NO OTHER REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH THE SERVICE, OR ANY CONSULTING SERVICES, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIAL WILL BE SECURE, UNINTERRUPTED OR ERROR FREE.
9. Infringement and Third-Party Claims
(a UptimeHealth shall save, defend, indemnify and hold Customer, its respective affiliates, employees, officers, owners and directors, harmless from and against any and all third party claims and resulting damages, costs, and other liabilities and expenses (including reasonable attorney’s fees) arising out of: any alleged infringement of a third party’s intellectual property rights or other proprietary rights that arising directly out of any UptimeHealth’s obligations under this Agreement. This obligation of UptimeHealth shall not apply if the alleged infringement or misappropriation results from the use of the Service in conjunction with any other software or service not provided by UptimeHealth or to free (no fee) licenses of the SaaS Services.
(b) In the event a claim under this Article is made or in UptimeHealth’s reasonable opinion is likely to be made, UptimeHealth may, at its sole option and expense: (i) procure for Customer the right to continue using the SaaS Services under the terms of this Agreement; or (ii) replace or modify the SaaS Services to be non-infringing without material decrease in functionality. If UptimeHealth provides written notice to Customer that the foregoing options are not reasonably available, UptimeHealth or Customer may terminate this Agreement and UptimeHealth shall refund to Customer all prepaid fees for the remainder of the Subscription Term after the date of termination.
(c) Customer shall indemnify and defend UptimeHealth, its respective affiliates, employees, officers, directors, harmless from and against all third party claims and resulting damages, costs, and other liabilities and expenses (including reasonable attorneys’ fees) arising out of: (i) any alleged infringement of a third party’s intellectual property rights or other proprietary rights that arises directly out of any Customer’s obligations under this Agreement; (iii) Customer’s access or use of the SaaS Services in violation of any applicable law or regulation; or (iv) an allegation that the Customer Data or Customer’s use of the SaaS Services in violation of this Agreement violates, infringes or misappropriates the rights of a third party. Customer will pay damages finally awarded against UptimeHealth (or the amount of any settlement Customer enters into) with respect to such claims and will pay its reasonable attorney’s fees in connection with such defense. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer and/or its Authorized Users or by the conduct of a third-party using Customer’s access credentials.
(d) The obligations under this Article are conditioned on (a) the party against whom a third party claim is brought timely notifying the other party in writing of any such claim, provided however that a party’s failure to provide or delay in providing such notice shall not relieve a party of its obligations under this Article except to the extent such failure or delay prejudices the defense; (b) the party who is obligated hereunder to defend a claim having the right to fully control the defense of such claim; and (c) the party against whom a third party claim is brought reasonably cooperating in the defense of such claim. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the party against whom the claim is brought, provided however that UptimeHealth may settle any claim on a basis requiring UptimeHealth to substitute for the SaaS Services any alternative substantially equivalent non-infringing services. The party against whom a third-party claim is brought may appear, at its own expense, through counsel of its choosing. Neither party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation, that is prejudicial to the other party’s rights.
(e) THE PROVISIONS OF THIS ARTICLE STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF THE PARTIES, THEIR AFFILIATES AND THEIR LICENSORS TO THE OTHER PARTY, AND IS THE OTHER PARTY’S SOLE REMEDY, WITH RESPECT TO THIRD PARTY CLAIMS COVERED HEREUNDER AND TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
10. Limitation of Liability
(a) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR DAMAGES RESULTING FROM CUSTOMER’S UNAUTHORIZED USE OR UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION, AND EXCEPT FOR ITS INTELLECTUAL PROPERTY INDEMNITY OBLIGATIONS UNDER SECTION 10, UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF ANY CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES OR LICENSORS) BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY UNDER THIS AGREEMENT: (A) FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES FOR THE APPLICABLE SAAS SERVICES PAID TO UPTIMEHEALTH BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO LIABILITY AND (B) FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE OR FOR EXEMPLARY OR PUNITIVE DAMAGES.
(b) The provisions of this Agreement allocate the risks between UptimeHealth and Customer. The fees reflect this allocation of risk and limitations of liability herein. The aforementioned liability limitations shall include any claims against employees, subcontractors, or any other persons authorized by either
11. General Provisions
(a) Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, which are incorporated by reference, are the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of this Agreement and any order form attached exhibits, appendices or other materials, this Agreement shall take precedence, unless the specific article of this Agreement is referenced as being replaced.
(b) Modifications to Agreement: Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and signed by authorized representatives of both parties.
(c) If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or other provision of this Agreement.
(d) Applicable law: This Agreement and any claims arising out of or relating to this Agreement and its subject matter shall be governed by the laws of Massachusetts.
(e) Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed duly given when delivered (certified or registered mail, by an overnight courier service with delivery receipt or by email with confirmation from the recipient) to the respective executive offices of UptimeHealth.
(f) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
(g) Assignment: The rights and obligations under this Agreement are not assignable by Customer, without UptimeHealth’s prior written consent.
(h) Severability: If a court finds any provision of this Agreement invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the remainder of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
(a) This Agreement does not grant either Party the right to use any trademark, trade name or logo of the other Party in any advertising or promotional material, except that UptimeHealth may identify Customer as a customer of UptimeHealth, including as a subscriber of the Platform, in promotional materials, website, and published lists of UptimeHealth’s customers. Customer agrees that UptimeHealth may issue a press release, in a form to be mutually agreed by Customer and UptimeHealth, describing this subscription including a quote from Customer.
(b) UptimeHealth does not block the number of Authorized Users that the Customer Admin can Activate for the Domain. UptimeHealth reserves the right to periodically Audit the number of Users that are Active in the Domain. If the audit determines that more users are Active than the number covered by Order Forms, then UptimeHealth shall notify Customer of the overage and prepare an Order Form to address the deviation.
(c) Professional services for customer integration shall be quoted according to a written Statement of Work under mutual agreement of the Parties, based on $250 per hour, plus any travel and related expenses based on Customer’s standard travel policy.
13. Standard Usage Policy
(a) UptimeHealth user license is subject to our Standard Usage Policy, as further detailed below.
- User license is restricted to a monthly aggregate call duration of 750 minutes per user seat for a Basic subscription and 1,000 minutes per user for a Pro subscription unless stated otherwise in the form.
- User license with recording is restricted to a monthly aggregate call duration of 120 minutes per user seat for a Basic subscription and 250 minutes per user for a Pro subscription unless stated otherwise in the form.
- User license is authorized to store up to ten (10) pictures per UptimeHealth call.
(b) Usage above the Policy limits requires prior written approval by UptimeHealth and additional fees shall apply. Standard fees are $5.00 for each additional 60-minute increment of time of call duration and $20.00 for each additional 60-minute increment of time of record duration unless otherwise stated on Order Form.