Updated December 26, 2020
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 below). 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”.
Subscription Terms and Conditions
Updated April 22, 2020
Contract For Equipment Service Terms and Conditions:
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.
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.
(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.