01. DEFINITIONS
For purposes of this Agreement, the following capitalized terms have the meanings set forth below or elsewhere in this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
“Authorized Users” means Customer’s employees, contractors, agents, or representatives authorized by Customer to access the Program in accordance with this Agreement.
“Confidential Information” means all information or material disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that: (a) gives either party some competitive business advantage, gives either party an opportunity of obtaining some competitive business advantage, or the disclosure of which may be detrimental to the interests of the Disclosing Party; and (b) is either: (i) marked “Confidential,” “Restricted,” “Proprietary,” or includes other similar markings; (ii) known by the parties to be confidential and proprietary; or (iii) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. The Subscription Services are deemed Confidential Information of Provider.
“Customer Data” means all electronic data, information, text, and materials submitted by or on behalf of Customer or its Authorized Users to the Provider, excluding Provider Content.
“Documentation” means Provider’s then-current user guides, manuals, documentation, and other materials describing the functionality, operation, and usage of the Program.
“Effective Date” means the date on which the Subscription Services are activated for Customer, as specified as the Subscription Start Date (Activation Date) in the applicable Order Form.
“Fees” means the subscription fees, usage-based fees, and any other charges payable by Customer to Provider for access to the Program and related services, as specified in the applicable Order Form, including any renewal fees, overage fees, or additional service fees agreed by the Parties. Fees do not include taxes, duties, levies, or similar governmental assessments, which shall be paid by Customer as set forth in this Agreement.
“Order Form” means the ordering document, executed quote, or online acceptance specifying the Program subscription, applicable fees, Authorized User quantities, term, and other terms, each of which is incorporated into this Agreement by reference.
“Program” means “5-Star Patient Experience”, the Provider’s proprietary video-based training program, content, functionality, and related components, including all updates, enhancements, Provider Content, and Documentation.
“Provider Content” means all videos, training materials, assessments, quizzes, text, graphics, and other content made available by Provider through the Program.
“Subscription Services” means Customer’s access to and use of the Program, including the Provider Content, and any related support, updates, or features made available by Provider during the applicable Subscription Term pursuant to this Agreement and the applicable Order Form.
“Subscription Term” means the period of subscription specified in the applicable Order Form and any renewal period thereto.
“Support Services” means Provider’s maintenance and technical support services for the Program, if any, as may be described in an applicable Service Level Agreement.
“Subprocessors” means third-party vendors, contractors, or service providers that Provider may engage to assist in delivering or supporting the Program and related services.
“Term” means, collectively, the Initial Term and any Renewal Term(s).
“Website” means Provider’s internet website through which the Program is made available, currently located at https://5starpx.com/ together with any successor or replacement websites designated by Provider from time to time.
Unless otherwise defined in this Agreement, capitalized terms used herein have the meanings set forth in this Agreement. In the event a capitalized term is defined both in this Agreement and in an applicable Order Form, the definition in the Order Form shall control solely for purposes of that Order Form.
02. ORDER OF PRECEDENCE
In the event of any conflict or inconsistency between the documents comprising this Agreement, the following order of precedence shall apply: (a) the applicable Order Form; (b) the Subscription Agreement; (c) the Terms of Service; and (d) any policies, exhibits, or other referenced materials. Except as expressly stated in an Order Form, no document shall modify or supersede a higher-priority document.
03. SCOPE OF SUBCRIPTION
Scope. Subject to Customer’s compliance with this Agreement and payment of all applicable Fees, Provider shall make the Subscription Services available to Customer during the applicable Subscription Term in accordance with the terms set forth herein and in the applicable Order Form. The Subscription Services include access to Provider’s proprietary video-based training Program, related training content, and Documentation, as made generally available by Provider from time to time. Customer’s subscription is limited to the subscription type, usage limits, metrics, and entitlements specified in the applicable Order Form, which may include limits based on Authorized Users, seats, usage volume, features, or other criteria. Customer may not exceed the applicable subscription limits, and any excess use may result in additional Fees or suspension of access, as determined by Provider.
Training Completion Certificate and Seal. Upon an Authorized User’s successful completion of the applicable training requirements of the Program, as determined by Provider in its sole discretion, Provider shall issue a certificate of completion to such Authorized User. The certificate of completion evidences the historical fact of completion of the Program as of the date issued and may be retained by Customer and the applicable Authorized User on a perpetual basis. The certificate does not constitute professional certification, accreditation, licensure, regulatory compliance, or endorsement by Provider, and may not be represented as such.
In connection with issuance of a certificate of completion, Provider may also make available a digital seal or badge indicating completion of the Program (the “Seal”). Subject to Customer’s continued compliance with this Agreement, Provider grants Customer a limited, non-exclusive, non-transferable, revocable license to display the Seal solely on Customer’s website and marketing materials to indicate completion of the Program. The Seal may not be modified, sublicensed, assigned, or used in any manner that implies certification, accreditation, regulatory approval, endorsement, or ongoing compliance. Customer shall use the Seal strictly in accordance with Provider’s then-current usage guidelines, if any. Provider retains all intellectual property rights, title, and interest in and to the Seal and related trademarks and may revoke the license to display the Seal upon misuse, reputational harm to Provider, or Customer’s material breach of this Agreement, including following termination or expiration of the Subscription Term.
04. LICENSE GRANT, PERMITTED USE AND PROHIBITED CONDUCT
During the applicable Subscription Term, Provider grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to permit Authorized Users to access and use the Subscription Services solely for Customer’s internal business and training purposes, in accordance with this Agreement and the applicable Order Form. Except as expressly permitted herein, Customer shall not use the Subscription Services for the benefit of any third party or for any commercial purpose other than Customer’s own internal operations. All rights not expressly granted to Customer are reserved by Provider and its licensors. Customer shall not, nor shall Customer permit any Authorized User or third party to, copy, reproduce, translate, adapt, modify, or create derivative works of the Program or Provider Content; reverse engineer, decompile, disassemble, scrape, bypass access controls or otherwise attempt to discover the source code of the Program; use the Program for competitive analysis, benchmarking, or development of competing products or services; resell, distribute, sublicense, copy, download, reproduce, sublicense, lease, distribute, or otherwise make the Program available to any third party; or circumvent any usage limits, access controls, or technical restrictions implemented by Provider.
Customer shall not conduct or permit any security testing, penetration testing, or vulnerability scanning of the Program without Provider’s prior written consent. Customer shall not introduce malicious code, malware, or otherwise compromise the performance, integrity, or security of the Program. Provider reserves the right to suspend or terminate access if it reasonably determines that Customer or its Authorized Users have violated this Section or pose a legal, regulatory, security, or operational risk.
Customer warrants that it will ensure Authorized Users’ use of the Program complies with all applicable laws and regulations and will not infringe or misappropriate any third-party rights.
05. FEES AND PAYMENT TERMS
Fees. Fees are based on the number of Authorized Users and are set forth in the applicable Order Form and pricing schedule.
Base Package (1–5 Users): $2,799 (annual)
Additional Users (Full Price; Not Prorated):
- 6–15 Users: $550 per User
- 16–30 Users: $450 per User
- 31–50 Users: $350 per User
- 51–70 Users: $250 per User
- 71+ Users: $199 per User
Tier Determination. Provider will determine the applicable per-User rate based on Customer’s total authorized User count after the addition.
No sharing. Authorized Users are individual, named licenses and may not be shared or used by more than one person. Customer is responsible for maintaining an accurate roster of users and ensuring only Authorized Users access the Program.
Adding Users. Customer may add Users at any time by written request. Additional Users are billed at full price, are not prorated, and co-terminate with the then-current term. Access is provisioned upon payment.
Invoicing, Payment Terms and Taxes. Fees for annual subscriptions are invoiced in advance and are due and payable on or before the start of the applicable Subscription Term, unless otherwise expressly stated in the applicable Order Form. Provider may issue an invoice upon execution of the applicable Order Form or on such other date as specified therein. Customer shall pay all undisputed invoices within thirty (30) days from the invoice date. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable. Fees are exclusive of taxes. Customer is responsible for all applicable taxes, excluding taxes on Provider’s income.
Late Payment. Customer agrees that Provider may suspend Customer’s access to the Program for non-payment of undisputed amounts after providing notice of late payment. If any undisputed amount is not paid when due, Provider may charge interest at the rate set forth in the Order Form or, if none is specified, one and one-half percent (1.5%) per month or the maximum amount permitted by applicable law. Customer shall be responsible for all taxes, duties, and governmental assessments associated with this Agreement, other than taxes based on Provider’s income.
Disputed Amount. In the event of any bona fide billing dispute under any Order Form, Customer shall provide Provider with written notice of the disputed amounts prior to the due date. Provider shall review and promptly respond to any such dispute, and Customer shall pay all undisputed amounts in accordance with the applicable payment terms.
Suspension. Provider may suspend Customer’s access to the Subscription Services, in whole or in part, upon written notice if: (a) Customer fails to timely pay any undisputed Fees and such failure continues for ten (10) days after notice; (b) Provider reasonably suspects credential sharing, unauthorized access, or other misuse of the Subscription Services; or (c) Customer’s or any Authorized User’s use of the Subscription Services violates this Agreement or poses a legal, regulatory, or security risk. Provider shall use commercially reasonable efforts to limit the scope and duration of any suspension and to restore access promptly after the underlying issue has been cured or resolved to Provider’s reasonable satisfaction. Suspension under this Section shall not relieve Customer of its obligation to pay applicable Fees.
06. TERM AND TERMINATION
Term. This Agreement shall commence on the Effective Date and shall remain in effect for the initial subscription term specified in the applicable Order Form (the “Initial Term”), unless earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of equal length to the Initial Term (each, a “Renewal Term”), unless either Party provides written notice of non- renewal to the other Party at least thirty (30) days prior to the expiration of the then-current Subscription Term.
Upon each Renewal Term pursuant to the Term provision above, the Fees applicable to the Subscription Services shall automatically increase by five percent (5%) over the Fees in effect during the immediately preceding Subscription Term. Such increase shall apply to the entire Renewal Term and shall not require further notice beyond the renewal notice provisions set forth under the Term clause. The adjusted Fees shall be reflected in the applicable renewal invoice or renewal Order Form.
Termination for Cause. Either Party may terminate this Agreement or an applicable Order Form upon written notice if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach in reasonable detail. Provider may terminate this Agreement immediately upon written notice if fails to pay undisputed Fees when due and such failure continue for 30 days after written notice, or if Customer materially violates the license restrictions or acceptable use provisions of this Agreement.
Effect of Termination. Upon expiration or termination of this Agreement for any reason, all rights granted to Customer hereunder shall immediately cease, and Customer shall discontinue all use of the Program and Provider Content. Any outstanding Fees accrued prior to termination shall become immediately due and payable. Sections relating to Fees, intellectual property ownership, confidentiality, disclaimers, indemnification, limitation of liability, governing law, and any other provisions which by their nature are intended to survive termination shall survive. Upon expiration or termination, Customer’s access to the Program shall cease, and all unpaid fees shall be immediately due.
07. INTELLECTUAL PROPERTY RIGHTS
Provider Intellectual Property. As between the Parties, Provider retains all right, title, and interest in and to the Program, the Provider Content, the Documentation, and all related software, technology, designs, methodologies, trademarks, copyrights, patents, trade secrets and other intellectual property rights, including any updates, enhancements, modifications, or derivative works thereof, whether developed before or during the Term. No rights are granted to Customer except as expressly set forth in this Agreement, and all rights not expressly granted are reserved by Provider.
Customer Data. As between the Parties, Customer retains all right, title, and interest in and to Customer Data. Customer grants Provider a limited, non-exclusive, worldwide, royalty- free license during the Term to host, process, transmit, and otherwise use Customer Data solely as necessary to provide, maintain, support, and improve the Program and to perform Provider’s obligations under this Agreement, in accordance with applicable law and the terms of this Agreement.
Feedback. Feedback is voluntary. If Customer or its Authorized Users provide Provider with any suggestions, comments, feedback, or recommendations relating to the Program or Provider’s services (“Feedback”), Provider may use, disclose, reproduce, license, distribute, and otherwise use such Feedback without restriction or obligation to Customer to enhance functionality of the Program or otherwise, and Customer hereby irrevocably assigns to Provider all right, title, and interest in and to such Feedback to the extent assignable under applicable law.
08. CONFIDENTIALITY
Confidential Information. During the Term, each party may disclose to the other certain Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (b) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; or (d) was independently developed by a party hereto without reference to Confidential Information of the other party.
Protection of Confidential Information. Except as expressly provided in this Agreement, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to, and subsequent uses by: (a) the Receiving Party’s Representatives on a need-to-know basis, provided that such Representatives have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Section; and/or (b) as required pursuant to a subpoena or other similar order of any court or government agency provided, however, that the party receiving such subpoena or order will promptly inform the other party in writing and provide a copy thereof (unless notice is precluded by the applicable process), and will only disclose that Confidential Information as necessary to comply with such subpoena or order. Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party will use at least the same degree of care and precaution that it uses to protect the confidentiality of its own Confidential Information and trade secrets of similar nature, but in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity, or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure. The term “Representatives” means with respect to a party, that party’s and its Affiliates’ respective Users, officers, directors, partners, shareholders, consultants, agents, independent contractors, service providers, attorneys, accountants, lenders, and advisors and, with respect to Provider, Provider’s Subprocessors, as may be applicable.
Return and Destruction of Materials. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all summaries, copies, descriptions, excerpts, or extracts thereof that are in the possession of the other party will be, and remain, the property of the Disclosing Party and will be promptly returned to the Disclosing Party. The Receiving Party will use reasonable efforts to promptly delete or destroy all summaries, copies, descriptions, excerpts, or extracts thereof in its possession upon the Disclosing Party's written request. The Receiving Party will have no obligation to delete or destroy copies that: (a) are contained in an archived computer system backup that were made in accordance with such party’s security, retention, and/or disaster recovery procedures; or (b) are kept by a party for record-keeping, archival, or governance purposes in compliance with such party’s document retention policies. Any such retained Confidential Information will remain subject to the terms and conditions of this Agreement for so long as it is retained. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party will continue to be bound by its confidentiality and other obligations hereunder in accordance with the terms of this Agreement. At the Disclosing Party’s option, the Receiving Party will provide written certification of its compliance with this Section.
09. DATA PROTECTION, SECURITY AND PRIVACY
Data Roles. As between the Parties, Customer is the controller of Customer Data and Provider acts as a service provider or processor, as applicable, solely for the purpose of providing, maintaining, and improving the Program in accordance with this Agreement. Provider shall process Customer Data only on documented instructions from Customer, as set forth in this Agreement and the applicable Order Form, and in compliance with applicable data protection laws.
Security Measures. Provider shall implement and maintain reasonable administrative, technical, and organizational safeguards designed to protect the security, confidentiality, and integrity of Customer Data against unauthorized access, disclosure, alteration, or destruction. Customer acknowledges that no data transmission or storage system can be guaranteed to be completely secure and that Provider does not warrant that the Program will be immune from security incidents, interruptions, or errors.
No PHI; HIPAA Exclusion. The Program is not designed to store, process, or transmit Protected Health Information (PHI), patient-identifiable data, or other regulated health data. Customer agrees that neither Customer nor its Authorized Users will upload, submit, or otherwise provide any protected health information or patient-specific clinical data through the Program or related support channels. The Parties expressly agree that Provider is not acting as a business associate, subcontractor, or agent under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or any similar healthcare privacy law, and no business associate agreement is intended or required under this Agreement.
Subprocessors. Customer acknowledges that Provider may engage third-party service providers, contractors, or Affiliates as subprocessors to assist in delivering the Program, including hosting, analytics, customer support, and infrastructure services. Provider shall remain responsible for the acts and omissions of its subprocessors to the extent required under applicable law and shall ensure that such subprocessors are subject to written obligations regarding data protection and confidentiality that are materially consistent with those set forth in this Agreement.
Security Incident and Breach Notification. Provider shall notify Customer without undue delay after becoming aware of a confirmed unauthorized access to Customer Data maintained by Provider that materially compromises the security, confidentiality, or integrity of such Customer Data (a “Security Incident”). Provider’s notification will include, to the extent reasonably available at the time, a summary of the nature of the Security Incident and the steps Provider has taken or plans to take to mitigate its effects. Provider may provide information on a rolling basis as it becomes available. Provider’s obligation to notify Customer shall not be construed as an admission of fault, liability, or wrongdoing. Provider shall have no obligation to notify Customer of unsuccessful attempts, port scans, denial-of-service attacks, or similar events that do not result in unauthorized access to Customer Data.
Privacy Policy. Provider’s collection, use, and processing of personal data in connection with the Program are further described in Provider’s then-current Privacy Policy, available at https://www.practicebuilders.com/privacy-policy, which is incorporated by reference into this Agreement. In the event of a direct conflict between this Agreement and the Privacy Policy with respect to the Parties’ contractual rights and obligations, this Agreement shall control. Provider may update the Privacy Policy from time to time, provided that such updates do not materially diminish the data protection obligations owed to Customer under this Agreement.
Aggregated and De-Identified Data. Provider may collect, generate, and use aggregated and de-identified data derived from Customer Data and Program usage information for purposes of operating, maintaining, analyzing, improving, and marketing the Program, provided that such data does not identify Customer or any individual. Aggregated and de- identified data shall not be considered Customer Data and may be used by Provider without restriction.
10. DISCLAIMER
No oral or written information, marketing materials, training materials, promotional content, or advice provided by Provider or its authorized representatives shall create any warranty or expand the scope of any express warranties expressly set forth in this Agreement. Customer acknowledges that the training content and Provider Content are provided for general educational and informational purposes only and do not constitute medical, legal, regulatory, billing, coding, compliance, or other professional advice. Completion of the Program does not guarantee outcomes, patient satisfaction, regulatory compliance, or business performance. Provider is not a law firm, healthcare provider, or professional advisory service, and the information provided through the Program is not intended to be relied upon as professional advice or acted upon as such.
The Program and Provider Content may reference or display the trade names, trademarks, logos, or service marks of third parties for illustrative or educational purposes only. All such third-party names and marks are the property of their respective owners. Any such reference does not imply any affiliation with, endorsement by, or association between Provider and any third party.
Customer acknowledges that the Program may be used to access, transmit, or store information over the internet and that Provider does not operate or control the internet or Customer’s information technology systems. Customer further acknowledges and agrees that (A) malicious code, viruses, worms, Trojan horses, or other harmful software, or (B) unauthorized third parties, including hackers, may attempt to gain unauthorized access to Customer systems, data, networks, or accounts, and that Provider shall not be responsible for such activities except to the extent caused by Provider’s failure to comply with its express security obligations under this Agreement.
Each Party disclaims all liability and indemnification obligations for any harm, loss, or damages caused by third-party hosting providers, telecommunications providers, internet service providers, or other third-party infrastructure providers not under such Party’s direct control.
Customer is solely responsible for its use of the Program, including any features or components that integrate with or interact with Customer’s information technology systems. Without limiting the foregoing, Provider shall not be responsible for (A) Customer’s actions taken within its own systems using the Program or Provider Content, (B) Customer’s data backup, retention, or disaster recovery practices, (C) Customer’s compliance with applicable laws or regulations, or (D) how Customer or its Authorized Users use, interpret, or respond to prompts, guidance, simulations, or training scenarios made available through the Program.
EXCEPT FOR ANY EXPRESS, LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, (A) THE PROGRAM, SUBSCRIPTION SERVICES, AND PROVIDER CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND (B) PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OR ACCURACY OF INFORMATION, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PROVIDER DOES NOT WARRANT THAT THE OPERATION OF THE PROGRAM OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY DEFECTS WILL BE CORRECTED.
11. INDEMNIFICATION
Provider Indemnification. Provider shall defend Customer against any third-party claim alleging that the Program or Provider Content, when used by Customer in accordance with this Agreement, infringes or misappropriates a valid United States patent, copyright, trademark, or trade secret, and Provider shall indemnify Customer for any damages finally awarded by a court of competent jurisdiction or agreed to in a written settlement approved by Provider. Provider’s obligations under this Section shall not apply to the extent a claim arises from or relates to (a) Customer Data, (b) Customer’s or any Authorized User’s misuse of the Program or Provider Content, (c) use of the Program in combination with products, services, or data not provided by Provider, (d) modifications to the Program not made or authorized by Provider, (e) use of the Program outside the scope of this Agreement or applicable Documentation, or (f) Customer’s failure to implement updates or modifications made available by Provider that would have avoided the alleged infringement.
Remedies. If a claim of infringement under this Section occurs, or if Provider reasonably determines that such a claim is likely to occur, Provider shall have the right, in its sole discretion, to (a) procure for Customer the right or license to continue using the affected portion of the Program free of the infringement claim, or (b) modify or replace the Program to make it non-infringing without materially reducing its functionality. If neither of the foregoing remedies is reasonably available, Provider may, in its sole discretion, terminate Customer’s access to the affected portion of the Program and refund any prepaid, unused Fees attributable to such portion for the remainder of the applicable Subscription Term. This Section states Provider’s sole and exclusive obligations and liability, and Customer’s sole and exclusive remedies, for any claim of intellectual property infringement arising out of or relating to the Program or this Agreement, and is in lieu of any implied warranties of non- infringement, all of which are expressly disclaimed.
Customer Indemnification. Customer shall defend Provider and its Affiliates, officers, directors, employees, and agents against any third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) Customer Data or any allegation that Customer Data infringes, misappropriates, or violates the rights of a third party or applicable law, (b) Customer’s or any Authorized User’s misuse of the Program or Provider Content, (c) Customer’s breach of this Agreement, including violations of acceptable use restrictions or data obligations, or (d) Customer’s violation of applicable laws or regulations.
Indemnification Procedure. The indemnified Party shall promptly notify the indemnifying Party in writing of any claim subject to indemnification; provided, however, that failure to provide prompt notice shall not relieve the indemnifying Party of its obligations except to the extent it is materially prejudiced by such failure. The indemnifying Party shall have sole control over the defense and settlement of the claim, provided that it may not settle any claim in a manner that imposes any admission of liability, obligation, or restriction on the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld. The indemnified Party shall provide reasonable cooperation, at the indemnifying Party’s expense, in the defense of the claim.
Exclusions and Allocation of Risk The indemnification obligations set forth in this Section are subject to the limitations of liability set forth in this Agreement, except to the extent expressly excluded therein. Except as expressly provided in this Section, neither Party makes any representation or warranty regarding infringement or non-infringement of third-party rights.
12. REPRESENTATIONS AND WARRANTIES
Mutual Authority. Each Party represents and warrants that it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation, and that it has full power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement and the performance of its obligations do not violate any other agreement to which such Party is bound.
Compliance with Law. Each Party represents and warrants that it will comply with all applicable federal, state, and local laws and regulations in connection with its performance under this Agreement. Without limiting the foregoing, Customer represents and warrants that its use of the Program and Provider Content, including use by Authorized Users, will comply with all applicable healthcare, privacy, employment, and data protection laws and regulations. Provider represents and warrants that it will make the Program available in a manner consistent with applicable laws governing the provision of software-as-a-service offerings.
No Additional Warranties. Except as expressly set forth in this Agreement, neither Party makes any other representations or warranties, whether express, implied, statutory, or otherwise, including any warranties of merchantability, fitness for a particular purpose, or non-infringement, all of which are expressly disclaimed to the maximum extent permitted by law.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, DATA, GOODWILL, OR ANTICIPATED SAVINGS, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SUBSCRIPTION SERVICES, OR THE PROGRAM, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR (A) A PARTY’S PAYMENT OBLIGATIONS, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS (C) CONFIDENTIALITY OBLIGATIONS (D) DATA SECURITY AND PRIVACY OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND (E) A PARTY’S WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR FRAUD (INCLUDING VIOLATION OF CRIMINAL LAW), EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO PROVIDER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. MARKETING AND PUBLICITY
Subject to Customer’s prior written notice opting out as provided below, Provider may use Customer’s name, logo, and non-confidential trademarks solely to identify Customer as a user of the Subscription Services on Provider’s Website, marketing materials, and customer lists. Provider shall not issue press releases or public announcements referencing Customer without Customer’s prior written consent. Customer may opt out of this Section at any time by providing written notice to Provider, and Provider shall promptly cease any new use following such notice.
15. NON-DISPARAGEMENT
Both parties agree not to engage in any form of disparagement, whether oral, written, or otherwise, against each other during the Term of this Agreement and thereafter for two (2) years. This includes any statements or actions that could reasonably be expected to damage the other party's reputation, business, or goodwill. In the event of a breach of this clause by either party, the non-breaching party shall have the right to seek damages equivalent to five times the total Agreement value as liquidated damages, in addition to any other remedies available under law. The breaching party shall also be liable for all the attorney fees and legal expenses incurred by the non-breaching party in enforcing this clause.
16. GOVERNING LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of laws principles. Any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located within Durham County, North Carolina and each Party irrevocably submits to the personal jurisdiction and venue of such courts and waives any objection based on inconvenient forum. Each Party waives any right to a jury trial in connection with any action or proceeding arising out of or relating to this Agreement.
17. ATTORNEY’S FEES AND COSTS
In the event of any legal action or proceeding aimed at enforcing the terms, conditions, or commitments set forth in this Agreement, or seeking damages due to any breach thereof, the party found to be in breach shall be responsible for reimbursing the other party for all reasonable attorney's fees and any other justifiable costs and expenses incurred by the non- breaching party. This applies in cases where the non-breaching party emerges as the prevailing party in such legal action, including any subsequent reviews, appeals, or proceedings, even in the context of bankruptcy cases or proceedings. The term 'prevailing party' shall denote the party in whose favor a final judgment is rendered following any appeals made, pertaining to the claims presented in the initial complaint. The phrase 'reasonable attorney's fees' refers to the attorney's fees that have been reasonably incurred in obtaining a judgment in favor of the prevailing party.
18. MISCELLANEOUS
Assignment. Customer may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of Provider, which shall not be unreasonably withheld. Provider may assign this Agreement without Customer’s consent in connection with a merger, reorganization, sale of all or substantially all of its assets, or change of control. Any attempted assignment in violation of this Section shall be null and void.
Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (other than payment obligations) due to events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, labor disputes, government actions, pandemics, power failures, or internet or telecommunications outages, provided that the affected Party uses commercially reasonable efforts to resume performance as soon as practicable.
Entire Agreement. This Agreement, together with any Order Forms, exhibits, schedules, or policies referenced herein, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, proposals, negotiations, or communications, whether written or oral.
Binding Agreement. Provider and Customer have obtained all necessary authority, rights, consents, and approvals required to enter into this Agreement and carry out the transactions.
Amendments; Waivers. No amendment or modification of this Agreement shall be valid unless made in writing and signed by authorized representatives of both Parties. Any waiver of a breach must be in writing and shall not constitute a waiver of any subsequent breach. Failure or delay by either Party to enforce any right shall not operate as a waiver of such right.
Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be deemed to create any partnership, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party has authority to bind the other or to incur obligations on the other’s behalf.
Notices. All notices under this Agreement shall be in writing and shall be deemed given when: (a) delivered personally; (b) sent by a nationally recognized overnight courier; or (c) sent by certified or registered mail, return receipt requested, in each case to the address of the applicable Party set forth in the applicable Order Form or to such other address as a Party may designate by written notice. Notices related to billing, payment, renewal, suspension, or termination may also be provided by email to the email address designated by each Party for such notices, and shall be deemed given upon transmission, provided no bounce-back or delivery failure notice is received. Notwithstanding the foregoing, Provider may provide operational notices, updates, or communications regarding the Subscription Services by email or through the Program, and such notices shall be deemed effective when posted or transmitted.
Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid provision shall be replaced with a valid provision that most closely reflects the Parties’ original intent.
Survival. In the event any provision of this Agreement is struck down and held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement shall survive and will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the term of this Agreement shall survive the termination of this Agreement.
Waiver. Any waiver by either party must be in writing and delivered to the other party, as delineated in the Notice provisions above herein. The waiver by either party of a breach or a default under any provision of this Agreement shall not be construed as a waiver of the whole Agreement, and / or of any subsequent breach of the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
Counterparts; Electronic Execution. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement. Electronic signatures shall have the same legal effect as original signatures.
IN WITNESS WHEREOF, parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
