GENERAL TERMS AND CONDITIONS OF SERVICES
These General Terms and Conditions of Services (“Terms”), including any referenced Supplemental Terms and any order form (“Order Form”) incorporating these Terms (collectively, the “Agreement”) are entered into between UptimeHealth Inc. (“Company”) and the Subscriber identified on the applicable Order Form or as otherwise provided to Company. Company and Subscriber are each referred to as a “Party” and collectively the “Parties”. Capitalized terms used but not defined in these Terms shall have the meanings given elsewhere in the Agreement.
1. Nature of the Services
1.1 General. Company offers a proprietary technology platform (e.g., website, mobile application) with an online marketplace to facilitate the provision of equipment and facility management services (“Marketplace”) (collectively, the “Services”), and on-site maintenance, repair, and support services (“Professional Services”) subject to Supplemental Terms (as defined below).
1.2 Access. Subject to an executed Order Form, and any restrictions herein or as set forth in Company’s policies, guides, and manuals as updated and amended from time to time (“Documentation”), Company grants Subscriber a limited, non-exclusive, non-transferable right for Subscriber’s Authorized Users to access and use the Services in accordance with these Terms and Documentation. The Services are made available to Subscriber via a portal. Subscriber shall (a) be responsible, at its expense, for obtaining its own Internet access, and any required hardware, software, or other technology to connect to the portal, (b) prevent unauthorized access to or use of the Services, nor disclose Company IP, and notify Company promptly of any such unauthorized access or use, and (c) use the Services only in accordance with applicable laws and Documentation. All rights not expressly granted to Subscriber are reserved by Company (and its licensors). There are no implied rights granted by Company.
1.3 Authorized Users. Subscriber may permit its employees, agents, and contractors (“Authorized Users”) to access certain functionality of the Services subject to applicable restrictions or limitations set forth herein, provided that: (a) Subscriber is responsible for all acts and omissions of Authorized Users, including Marketplace transactions and (b) each such Authorized User (i) is permitted to access the Services solely for Subscriber’s internal business purposes, during the Subscription Term and (ii) is bound by the restrictions and other limitations set forth in the Agreement. For clarity this Section 1.3 in no way limits any obligations Subscriber may have related to third parties under a separate written agreement with Company.
1.4 Restrictions. Subscriber and its Authorized Users shall not: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, or Documentation, (b) modify, translate, or create derivative works based on the Services, (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services, (d) use, access, or otherwise exploit the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services, (e) remove any proprietary notices or labels from the Services, or (f) use the Services to threaten, disrespect, harass, defame, or intimidate any third-party providers or other subscribers.
1.5 Professional Services. If indicated on an order form, Subscriber may elect to engage Company for the provision of certain Professional Services subject to additional terms (“Supplemental Terms”) and fees as specified on the order form or Documentation. If Subscriber requests the provision of Professional Services on-site at Subscriber’s facility, and Company agrees in writing to provide such Professional Services, Company shall bill and Subscriber agrees to pay any costs and expenses (including any travel expenses) related to the provision of Professional Services on-site. Subscriber’s execution of an order form for Professional Services constitutes Subscriber’s agreement to be bound to the Supplemental Terms and pay any fees relating to such Professional Services. If these Terms are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such Professional Services. Company may add or discontinue offering any Professional Services, in whole or in part, in Company’s discretion, at any time unless expressly agreed otherwise in the Agreement.
2. Fees and Payment
2.1 Fees. In consideration for the rights granted, Subscriber will pay to Company, without offset or deduction, the fees and expenses described in an Order Form or Documentation. Unless otherwise provided in an Order Form, Company reserves the right to increase fees each Renewal Term by five percent (5%) or at the rate of increase in the Consumer Price Index, whichever is greater. Fees and expenses for the Initial Term are due upon execution of the Order Form. Thereafter, fees are payable within thirty (30) days or receipt of an invoice.
2.2 Taxes. All amounts due under any Order Form are non-cancellable, non-refundable, and exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with the Agreement, the Services, the Professional Services, and Authorized Users’ access to and use of the Services and/or Professional Services. Subscriber shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Company’s U.S. income), which may be invoiced by Company from time-to-time.
2.3 Payment Method. Subscriber shall make all payments hereunder using the payment method set forth in the Order Form. All payments shall be made in U.S. Dollars. Subscriber agrees to gross-up payments due to Company for any tax related withholding or deduction required by applicable laws, such that Company is paid the net amount contemplated under the applicable Order Form.
2.4 Late Payments. In addition to any other remedies available to Company hereunder, Subscriber shall pay interest on all late payments at a rate of 1.25% per month, calculated daily and compounded monthly. Subscriber will reimburse Company for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Subscriber hereunder.
2.5 Evaluation Period. If Company offers Subscriber an evaluation period (may also be referred to as Learning Phase, Learning Period, or Pilot), once the evaluation period ends (as documented in an Order Form or as otherwise communicated by Company), Company will begin billing Subscriber’s applicable payment method at the rate and schedule (set forth in the Order Form) for a Subscription Term, unless Subscriber cancels at least three (3) days prior to the end of the evaluation period. The Agreement shall govern Subscriber’s evaluation period and any subsequent subscriptions.
3. Ownership.
3.1 Company IP. Subscriber acknowledges and agrees that as between Company and Subscriber, all right, title, and interest in the Company IP (including any related patent copyright, trademark, trade secret, intellectual property or other ownership rights) are and will remain the sole and exclusive property of Company (or its licensors). Any derivative works, modifications, suggestions, enhancements, or other feedback Subscriber provides to Company will be solely and exclusively owned by Company, and includes the right for Company to use, reproduce, disclose, publish, distribute, or otherwise exploit, in any manner. Trademarks, logos, and service marks displayed on the Services are registered and/or unregistered trademarks of Company, its licensors or content providers, or other third parties. As used herein, “Company IP” means all of Company’s proprietary technology (including the Services, Documentation, software, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) that Company makes available to Subscriber during the provision of services indicated on an applicable order form.
3.2 Subscriber Data. As between the Parties, except for the limited rights provided herein, Subscriber retains all right, title, and interest (including any and all intellectual property rights) in and to the Subscriber Data as provided to Company. Subscriber hereby grants to Company, its agents, and authorized partners a non-exclusive, worldwide, royalty-free right to use, copy, process store, transmit, distribute, perform and display, modify and create derivative works of the Subscriber Data to the extent necessary to provide the Services and/or Professional Services and to comply with applicable laws. Subscriber shall be solely responsible for ensuring that all Subscriber Data complies with applicable laws. “Subscriber Data” means electronic data and information submitted by or on behalf of Subscriber to the Service or collected and processed by or on behalf of Subscriber using the Service.
4. Marketplace (this section applies to Subscribers who participate in the Marketplace)
4.1 Marketplace Participant. Subscriber may access and use the Marketplace to communicate and engage third parties for the provision of technical, maintenance, and repair services. The terms of such transactions will be further specified in the Marketplace or such documentation provided by Company to Subscriber. These transactions are by and between the identified Marketplace participants (i.e. Subscriber and third-party provider). Company does not endorse, warrant, or guarantee any third-party products or services, including those offered or described in the Marketplace. Company may collect fees and commissions relating to such transactions, but is not responsible or liable for the acts or omissions of any Subscriber or Marketplace participant, their payment or performance obligations, or the benefits or losses associated with any transaction or hardware.
4.2 Third-Party Services. The Marketplace may include certain links to third-party websites for the purpose of Subscriber engaging a third-party provider. Company does not control or operate any such third-party website. Any information Subscriber uploads to a third-party website or provide to a third-party provider is subject to the policies and procedures of such third party, and not Company’s policies. Subscriber agrees that Company will not be responsible or liable for, and does not endorse any content, advertising, products or services provided on or through these third-party websites. Company does not make any representations or warranties as to (a) any API integrations with Subscriber’s or a third party’s services or products or (b) the security of any information (including, without limitation, credit card and other personal information) Subscriber might be requested to give to any third-party website or provider. Subscriber’s use of Company’s API integrations or third-party websites and services is at Subscriber’s sole risk.
4.3 Subscriber Responsibilities. The Marketplace provides Subscriber the opportunity to review the services and products provided by a third-party provider. Subscriber shall be solely responsible for the reviews it uploads to the Marketplace. Any reviews or ratings Subscriber uploads to the Marketplace shall be (a) based on Subscriber’s actual first-hand experience and (b) honest, truthful, and accurate. Subscriber shall not upload any review that Company deems libelous, harassing, obscene, defamatory, offensive, or infringing. Company, in its sole discretion, may remove any reviews or ratings once published to the Marketplace.
5. Term and Termination
5.1 Subscription Term. Unless otherwise specified in an Order Form, the initial term of the Agreement shall commence on the effective date of the order form and continue for the period set forth in the order form, if no period is provided in the order form, the initial term shall continue for twelve (12) months following the effective date of the order form (the “Initial Term”). The Agreement shall thereafter automatically renew for successive renewal terms, equal to the period of the Initial Term (each a “Renewal Term”), unless either Party provides the other Party at least thirty (30) days’ advance written notice of its desire to not renew prior to the end of the then-current Term. The Initial Term and any Renewal Terms may be collectively and individually referred to as the “Subscription Term”.
5.2 Termination. Either Party may terminate the Agreement, including any active Order Form, for the uncured material breach of the other Party if the breaching Party fails to cure such breach within thirty (30) days of becoming aware of the breach, or as otherwise provided in the Agreement.
5.3 Termination for Insolvency. Company may terminate the Agreement (and any or all applicable Order Forms) immediately if Subscriber becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, liquidation, or composition for the benefit of credits, if such petition or proceeding is not dismissed within sixty (60) days of filing.
5.4 Other Terminations. Company may terminate the Agreement (and any or all applicable Order Forms), or suspend or terminate Subscriber’s access to the Services and Professional Services, at any time in its sole discretion, with or without notice, if (a) Subscriber is past due on any invoiced fees and fails to cure within ten (10) days’ notice, (b) Subscriber is in breach of the Agreement, or (c) Company has a good faith belief that any Authorized Users’ access or use of the Services violates law or regulation or is disrupting other subscribers’ access to or use of the Services.
5.5 Post Termination Obligations. Upon the termination or expiration of the Agreement and subject to payment of all amounts then due and owing, (a) Company will transfer a copy of Subscriber Data in Company’s possession or control to Subscriber within thirty (30) days following any termination or expiration (or otherwise upon Subscriber’s reasonable request). Company is not obligated to store any Subscriber Data for more than thirty (30) days following the termination or expiration of the Agreement. Company will delete any Subscriber Data in its control or possession thereafter, but may retain copies for archival purposes; and (b) Subscriber will (i) discontinue all access and use of the Services, and (ii) remain liable for all payments due to Company with respect to the period ending on the date of termination (including any fees and expenses that had not been invoiced prior to termination). Sections 2, 3.1, 5.5, 6, 7.2, 8, 9.2, and 10 will survive any termination or expiration of the Agreement.
6. Confidential Information. All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other Party. The disclosing Party's confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under the Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The receiving Party will limit its use of and access to the disclosing Party's confidential information to only those of its employees or representatives whose responsibilities require such use or access. The receiving Party will advise all such employees and representatives, before they receive access to or possession of any of the disclosing Party's confidential information, of the confidential nature of the confidential information and require them to abide by the terms of this Section. Either Party may disclose the Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. Company’s confidential information includes the Services (and the data that is provided as part of the Services, but not any Subscriber provided data), Documentation, and the pricing under the Agreement.
7. Representations and Warranties; Disclaimer
7.1 Company Limited Warranty. Company warrants that it will provide the online platform and Marketplace (defined as “Services” above) in a competent manner. Company does not warrant that it will be able to correct all reported defects or that use of the Services will be uninterrupted or error free. Company retains the right to modify the Services, including the Company IP, in its sole discretion; provided that doing so does not have a material adverse impact on the Services. Company may pause or interrupt the Services at any time, and Subscriber should expect periodic downtime for updates to the Services.
7.2 Disclaimer. THE SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM COMPANY IP. ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT.
8. Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, SAVINGS OR DATA) ARISING IN CONNECTION WITH THE AGREEMENT, INCLUDING COMPANY IP, PROFESSIONAL SERVICES, OR OTHERWISE, BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY’S TOTAL AGGREGATE LIABILITY UNDER THE AGREEMENT, INCLUDING ALL ORDER FORMS WILL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE SUBSCRIBER TO COMPANY DURING THE PRIOR TWELVE (12) MONTHS FROM THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO PAYMENT OBLIGATIONS UNDER ANY ORDER FORM, UNAUTHORIZED USE OR DISCLOSURE OF COMPANY IP, OR SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS IN SECTION 9.2. IF THE SERVICES OR PROFESSIONAL SERVICES ARE PROVIDED ON A TRIAL OR EVALUATION BASIS, SUBSCRIBER’S SOLE REMEDY IN CONNECTION THEREWITH WILL BE TERMINATION OF THE TRIAL OR EVALUATION PERIOD.
9. Indemnification.
9.1 Company Indemnification. Subject to the terms and conditions herein, Company shall defend, indemnify, and hold harmless Subscriber and its directors, officers, and employees from and against any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and costs)(collectively, “Claim(s)”) alleging that the Services, when used as authorized under these Terms, directly infringes a third party’s intellectual property. If Subscriber’s use of the Services is, or in Company’s opinion is likely to be, enjoined due to the type of infringement specified above, Company may, in its sole discretion: (a) substitute or modify the Services so that the Services become non-infringing without compromising material functionally; (b) procure for Subscriber the right to continue using the Services; or if (a) and (b) are not commercially reasonable, (c) terminate the Agreement (and applicable order form) and refund to Subscriber any pre-paid fees for the Services associated with the then-remaining Subscription Term. The foregoing indemnification obligation of Company shall not apply: (i) if the Services are modified without Company’s prior written approval; (ii) the Services are combined with services or processes not authorized by Company in writing; (iii) related to misuse of the Services; (iv) to any third-party components or Subscriber Data; or (v) if the infringement relates to Company’s compliance with specifications or other requirements of Subscriber. THIS SECTION 9.1 SETS FORTH SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Subscriber Indemnification. Subscriber shall defend, indemnify, and hold harmless Company and its shareholders, partners, members, directors, officers, employees, lenders, successors and assigns, from and against any and all Claims arising out of or relating to (a) Subscriber’s or any Authorized User’s use of the Services in violation of the terms and conditions herein or applicable law or (b) Subscriber’s service offerings or Subscriber Data.
9.3 Procedures. The obligations of each indemnifying party are conditioned upon receiving from the Party seeking indemnification: (a) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (c) all reasonable necessary cooperation of the indemnified party, at indemnifying party’s expense.
10. Miscellaneous
10.1 Support Services. Subscriber agrees and consents to Company accessing Subscriber’s account and/or creating duplicative or impersonating accounts for the provision of support services as described in an Order Form.
10.2 Hosting Providers. Subscriber acknowledges that the Services are hosted by third-party hosting providers (the “Hosting Providers”). Company may changes its Hosting Providers at any time. Subscriber’s use of the Services is subject to any applicable restrictions or requirements imposed by the Hosting Providers. Notwithstanding any other provision of the Agreement, Company shall not be liable for any problems, failures, defects, or errors with the Services to the extent caused by the Hosting Providers. Subscriber acknowledges that the fees payable for the Services reflect the fact that Company is not responsible for the acts and omissions of the Hosting Providers.
10.3 Statistical Data. Company may analyze Subscriber Data, and data or other content or information of other clients, to create aggregated or anonymized statistics or data that do not identify Subscriber or any individual, and Company may during and after the Subscription Term use and disclose such statistics or data in its discretion, subject to applicable laws and regulations.
10.4 Publicity. Company may use Subscriber’s name and logo to issue press releases and on customer lists published on Company’s website and marketing materials.
10.5 Assignment. Neither Party may assign the Agreement or assign any of its rights, without the prior written consent of the other Party; provided, however, that either Party may assign its rights under the Agreement without the consent of the other Party in the event of a corporate reorganization, consolidation, merger, sale, or transfer of all or substantially all of its assets. Any purported assignment or delegation in violation of this paragraph is null and void. The Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns.
10.6 Notices. Subscriber agrees that an email to its email address on record will constitute formal notice under the Agreement.
10.7 Waiver. No waiver by either Party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by such Party.
10.8 Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
10.9 Force Majeure. Neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations under the Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of either Party.
10.10 Governing Law; Venue. The laws of the State of Massachusetts will govern the Agreement and any dispute arising hereunder without giving effect to the choice of law provisions thereof. Subscriber hereby consents to jurisdiction and venue in any federal or state court located within the State of Massachusetts, and Subscriber shall not bring any suit, claim or other cause of action except in a court within the State of Massachusetts, USA.
10.11 Entire Agreement. Except as otherwise expressly provided in writing, the Agreement sets forth the entire agreement between Subscriber and Company regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter.
SUPPLEMENTAL TERMS FOR PROFESSIONAL SERVICES
UptimeHealth Inc. (“Company”) may offer optional, supplemental Professional Services as described in the Documentation. If Subscriber elects to use the supplemental Professional Services, these supplemental terms shall control with respect to such Professional Services (“Supplemental Terms”). Capitalized terms not defined in these Supplemental Terms have the meaning given elsewhere in the Agreement.
1. Nature of the Professional Services. The Professional Services consist of annual maintenance routines, repairs, asset tagging, or onboarding support to be performed by Company, or a third-party provider on Company’s behalf, as mutually agreed to by the Parties. The Professional Services do not include any diagnostic work, engineering, repairs, parts, labor, or expenses unless otherwise agreed in writing by the Parties.
2. Non-Circumvention. Subscriber acknowledges that the Company’s business relies on the disclosure of information about contracted vendors and service providers for equipment services to the Subscriber. The Subscriber agrees that it will not at any time attempt to deal directly in any manner or circumvent the Company or otherwise exploit the relationship with or attempt to directly negotiate services with vendors and service providers disclosed by the Company without express written permission from the Company for a period of at least three years after the expiration of the agreement.
3. 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 Subscriber, Subscriber agrees to direct communications about the equipment and the services to Service Provider. Subscriber remains responsible for its obligations under this Agreement in any event.
4. Professional Services. Company is an independent contractor, and as such, shall have the right to determine the method, details, and means of performing the Professional Services. Nothing in the Agreement or any order forms shall operate to create any employment relationship. Unless otherwise noted in an order form, Company, or a third-party provider on Company’s behalf, may perform the Professional Services for Subscriber at: (a) Company’s premises or (b) any other location as mutually agreed to between the Parties. Company shall have the sole right to designate the appropriate personnel, or third-party provider, necessary to perform the Professional Services under an order form. Company reserves the right to substitute personnel or third-party providers for any reason and in its own discretion.
5. Subscriber Responsibilities. Subscriber acknowledges that the provision of Professional Services under the Agreement is conditioned on Subscriber performing certain responsibilities including, but not limited to: (a) schedule an appointment for Professional Services with Company or the third-party provider, (b) provide safe and secure access to the machine(s), during normal business hours, (c) maintain environmental controls (temperature, humidity, dust, etc.) in the locale in which Subscriber stores the machine(s), and (d) comply 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 machine(s)).
6. Warranty. Company represents and warrants that (a) it, or a third-party provider, will perform the Professional Services using personnel of required skill, experience and qualifications; and (b) it will perform the Professional Services in a professional and workmanlike manner with commercially reasonable industry standards for similar services. 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.
7. Disclaimer. THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTIES OR GUARANTEES WITH RESPECT TO OUTCOME RESULTING FROM THE PROFESSIONAL SERVICES.
8. Indemnification. Subscriber shall defend, indemnify and hold harmless Company from and against any third party claims, demands, loss, damage or expense relating to or resulting from (a) bodily injury or death or damage arising from Company’s, or a third-party provider’s, access to or use of Subscriber’s machines, facilities, or other property or (b) any willful or negligent act or omission of Subscriber.
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:
1. Background
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.
7. Confidentiality
(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.
8. Warranties
(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.
12. Miscellaneous
(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.
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