BY CHECKING THE BOX, ACCESSING OR USING TPWs SAAS OFFERING, YOU (“the Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS. IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND YOUR BUSINESS, DO NOT CLICK ON THE BUTTON AND DO NOT ACCESS OR USE TPWs SAAS OFFERING. Last updated: Friday, October 19, 2018
1. Defined Terms. For purposes of this Agreement, the following words and phrases will have the meanings set forth below.
2. Effective Date. This Agreement shall become effective as of the date when authorized representatives of both parties have executed an Order Form, or the date when Customer first accesses Subscription Services, whichever occurs first. If the authorized representatives execute any such agreement or order form on different dates, the Effective Date shall be the latter of the two dates, or the date as of which Customer first accesses Subscription Services, whichever occurs first (hereinafter referred to as the “Effective Date”).
3. Responsibilities. During the Term of this Agreement, TPW and Customer shall have the following respective responsibilities: a) TPW shall (i) grant Customer Access Rights to Subscription Services, and assist with initial setup and upload of data and provide standard training and support as indicated in Exhibit “A” attached hereto and incorporated herein by reference, (ii) use commercially reasonable efforts to provide Subscription Services 24 hours per day, 7 days per week, in accordance with the uptime, maintenance and service levels as indicated in Exhibit “A,” attached hereto and incorporated by reference herein, (iii) provide Customer with any additional Professional Services that Customer may from time to time purchase, and (iv) comply with all the terms and conditions of this Agreement. b) Customer shall (i) provide TPW with such information as may be required to set up and implement the Subscription Services, (ii) make timely payment to TPW for Subscription Services, (iii) procure and operate all computer systems, software and telecommunications services required to meet minimum technical specifications necessary for Customer’s Authorized Users to access and use the Subscription Services, and (iv) comply with all the terms and conditions of this Agreement.
4. Initial Upload of Customer Content. TPW will perform an initial upload of Customer Content to enable and implement the Subscriptions Services for Customer within ten (10) business days after receipt of such Customer Content from Customer, provided that Customer Content is delivered to TPW in the prescribed format provided by TPW. Any such Customer Content must be provided to TPW within fifteen (15) business days after the Effective Date. Customer is solely responsible for the accuracy, quality, integrity and legality of any and all Customer Content, and the means by which Customer acquired any such Customer Content, whether as part of an initial upload, or at any time thereafter. TPW shall have no obligation to verify the accuracy or lawfulness of any Customer Content, and TPW shall not be responsible for any inaccurate or unlawful Customer Content.
5. Authorized Users. In conjunction with the initial setup and upload of Customer Content, TPW will issue to Customer the number of unique sets of login credentials (user name and password) set forth on the applicable Order Form for the Subscription Services. Customer will ensure that no more than one Authorized User will have access to or will use each set of login credentials. Should TPW have a limit on the number of Simultaneous Users, Customer agrees to abide by any such limitation, unless Customer requests, and TPW agrees to increase, the number of Simultaneous Users, in which case Customer agrees to pay additional fees for any such increase in Simultaneous Users.
6. Reporting. TPW hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable limited right and license during the Term of this Agreement to reproduce reports or other such aggregation of Customer Content provided in TPWs SaaS Offering or applicable Subscription Services.
7. Unauthorized Access & Notification. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of TPWs SaaS Offering, and promptly notify TPW of any such unauthorized access or use. In addition, Customer shall promptly notify TPW of the termination of any employee, franchisee or Client (as the case may be) with access to SaaS Offering so TPW may prevent unauthorized access. TPW may, at any time and without liability to Customer, suspend or terminate any end user’s access to the Subscription Services in the event TPW reasonably believes that such end user has violated any provision of this Agreement.
8. Restrictions on Use. Customer and its Affiliates, and any employees or agents of either, hereby represent, warrant and agree they shall NOT, nor shall they permit anyone by or through them, to: (a) make the SaaS Offering available to anyone other than Authorized Users; (b) sell, resell, rent or lease the SaaS Offering, use the SaaS Offering to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) interfere with or disrupt the integrity or performance of the SaaS Offering or any data contained therein; (d) attempt to gain unauthorized access to the SaaS Offering or related systems, network or data; (e) transmit to, use, or store on, the SaaS Offering, any Malicious Code; (f) copy, modify or make derivative works based upon the SaaS Offering, including any products using similar ideas, features, functions or graphics of the Services; (g) decompile, disassemble, reverse engineer the Subscription Services or otherwise attempt to obtain or perceive the source code from which any software component underlying the SaaS Offering is compiled or interpreted, and Customer hereby acknowledges that nothing in this Agreement shall be construed to grant Customer any right to obtain or use such source code. (h) use the Subscription Services to transmit or store any personally-identifiable information of any third-party without the express written consent of any such third-party
9. Limited License. Subject to the terms and conditions of this Agreement, if the SaaS Offering requires the downloading of software to Customer’s servers or personal computers, or provides for download of any Documentation or Reports, TPW hereby grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the Term, to use any such software or Documentation as part of the Subscription Services, or reproduce copies of Reports and modify, adapt, translate and create derivative works therefrom, provided however that any such limited license shall be used solely for Customer’ own internal business purposes in connection with the exercise of its Access Rights. Upon termination of this Agreement for any reason, this limited license shall immediately expire and Customer shall not have any further license or right to any such software, Documentation or Reports. Customer agrees to delete any software downloaded pursuant to this Agreement, and delete or destroy any Documentation, but may retain its Reports for internal business purposes only.
10. Third-Party Applications. TPW may offer Third-Party Applications for sale, or permit integration of the SaaS Offering with Third-Party Applications. Any acquisition or use by Customer of third party products or services, including, but not limited to, Third-Party Applications, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party vendor or provider. TPW does not warrant or support third party products or services, whether or not they are designated by TPW as “certified” or otherwise, and no purchase of third party products or services is required to use the SaaS Offering. If Customer installs or enables Third-Party Applications for use with SaaS Offering, Customer acknowledge that TPW may allow providers of those Third-Party Applications to access Customer Content as required for the interoperation of the Third-Party Applications with the SaaS Offering. TPW is not responsible for any disclosure, modification or deletion of Customer’s Data resulting from any access by Third-Party Application providers.
11. Reservation of Rights & Restrictions. a) TPW Proprietary Rights; No Implied Licenses. Customer acknowledges that any Intellectual Property Rights and other proprietary interests that are embodied in, or performed by, the SaaS Offering, Subscription Services, Documentation or Deliverables, including any developments, inventions, or technology developed by TPW before, during or after the Term, and any Subscription Services-related suggestions, ideas, enhancements, requests, feedback, and recommendations provided by Customer to TPW are, as between the parties, TPWs Confidential Information and owned by TPW and not Customer. All Customer Content and other data or information that constitute or embody Customer’s Confidential Information are, as between the parties, owned by Customer. Without limiting the generality of the foregoing, TPW retains ownership of all algorithms and the resultant calculations utilized in analyzing Customer Content. TPW hereby grants to Customer a non-exclusive, right and license during the term of this Agreement to use the Deliverables solely for its internal business purposes. There are no licenses granted by implication under this Agreement and TPW reserves all rights that are not expressly granted. Nothing in this Agreement may be interpreted as an implied or express license, or to require TPW to deliver a copy, of TPW SaaS Offering or any software or other product utilized by TPW to provide the Subscription Services. b) Customer Content. TPW acknowledges that, as between TPW and Customer, Customer owns all Customer Content, whether such data is provided by Customer or obtained by TPW from Customer’s agents or Clients during the Term of this Agreement. The foregoing notwithstanding, during the Term of this Agreement, Customer grants to TPW a world-wide, non-exclusive, royalty-free license to use, store, process, modify, analyze, aggregate, compile, create derivative works and display all Customer Content, along with other data, including any data obtained from third parties, for the purpose of performing TPW’s obligations under this Agreement. TPW and Customer acknowledge that: (i) Customer Content may be subject to Intellectual Property Rights or other rights that are owned or controlled by third parties or legal restrictions and regulations, such as privacy laws. Prior to uploading Customer Content to SaaS Offering or using the Subscription Services to collect Customer Content, Customer shall, at its own expense, obtain all licenses, consents and/or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Content as necessary to enable Customer to grant the rights granted to TPW in this Agreement. The foregoing notwithstanding, Customer hereby agrees that TPW shall have the right to use data regarding Customer’s use of the Subscription Services to provide feedback to Customer on such use and to assist TPW in the further development, maintenance and provision of TPW products and services, and Customer hereby grants TPW a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the SaaS Offering any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the SaaS Offering. Further, without conveying any right, title or interest, Customer agrees that TPW may make accurate informational references to Customer’s trade names, trademarks or service marks (collectively, the “Marks”) in connection with its performance of the Services, including, without limitation, references in promotional materials, notices, and advertisements, subject to the condition that TPW shall promptly cease any use of any Mark owned by Customer in connection with its performance of the Services upon (i) termination of this Agreement; or (ii) receipt of notice from the Customer to discontinue such use. In the event that TPW makes reference to any Mark that is inaccurate, or otherwise incorrect, then Customer may notify TPW of the necessary correction(s), and TPW shall promptly implement such correction(s).
12. Professional Services; Statements of Work. Subject to the terms and conditions of this Agreement, Customer may request that TPW provide certain Professional Services related to Customer’s use of the Subscription Services, including, by way of example, configuration of the Subscription Services, training of Customer personnel regarding use of the Subscription Services and/or provision of technical support related to the Subscription Services. Upon Customer’s request, TPW shall negotiate in good faith regarding terms and conditions according to which such services would be provided. Any Professional Services to be provided will be included in an Order Form, which shall describe the fees, costs and expenses payable by the Customer in connection with the performance of such Professional Services, and a Statement of Work, which shall describe the scope and proposed timing of such Professional Services. Each Order Form and Statement of Work shall be binding upon the parties only after mutual execution, and TPW shall be under no obligation to perform the proposed Professional Services until an Order Form and Statement of Work in relation thereto has been mutually executed. Each mutually executed Order Form and Statement of Work shall be considered an integral part of this Agreement.
13. Security. TPW shall make good faith commercially reasonable efforts to undertake and maintain reasonable and industry standard security measures to protect the security, confidentiality and integrity of all Customer Content and other proprietary information transmitted through or stored on TPW’s server, including, without limitation: (i) maintenance of the Customer Content; and (ii) Firewall protection from network attack and other malicious harmful or disabling data, work, code or program. For purposes of this Agreement “Firewall” shall mean the protection provided through the process of blocking off external ports on servers to prevent malicious attacks.
14. Fees & Payment. In consideration for the rights granted and the promises made by TPW under this Agreement, Customer agrees to the following: a) Payment. Make payment to TPW the amounts agreed upon as stated in each Order Form at such times as the applicable Order Form requires, without offsets or other deductions, no later than the date when they are due. b) Late Payment Charges. If Customer fails to make any undisputed payment when due, TPW will have the right, without prejudice to any other remedies it may have, to charge an additional fee equal to one-and-one-half percent (1.5%) of the overdue amount for each full or partial month that the amount remains unpaid. If TPW elects to charge these additional amounts, Customer agrees to pay the charges in full within thirty (30) days after TPW issues an invoice. c) Suspension of Service Level Credits & Access Rights. Customer’s right to receive the Service Level credits set forth in Exhibit “A” is contingent upon Customer’s timely payment of all amounts due hereunder. For any month(s) during the Term that Customer has not made timely payment on or before the due date, Customer shall have no right to receive any Service Level Credits. In addition, TPW shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, suspend Customer’s access to the Subscription Services, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due in accordance with this Section.
15. Taxes. Unless otherwise stated, TPW’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If TPW has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides TPW with a valid tax exemption certificate authorized by the appropriate taxing authority.
16. Confidential Information. TPW and Customer hereby agree to the following provisions regarding Confidential Information: (a) Ownership & Use. With regard to information that one Party discloses to the other, the disclosing Party is the “Owner,” and with regard to information it receives from the other, the receiving party is the “Recipient.” The Recipient agrees not to disclose or permit access to the Owner’s Confidential Information, except to the Recipient’s employees and agents who are informed of the confidential nature of the Confidential Information and who have agreed in writing or who are otherwise legally bound to treat the Owner’s Confidential Information in a manner consistent with Recipient’s duties under this Agreement. The Recipient will not use the Owner’s Confidential Information except (i) as necessary to perform the Recipient’s duties under this Agreement; and (ii) in any other manner that this Agreement expressly authorizes. Even after termination or expiration of this Agreement, the Recipient will continue to treat Confidential Information received from the other Party in accordance with this Agreement, for so long as the information fits the definition of “Confidential Information,” or until use and disclosure of the information would no longer be restricted even if this Agreement remained in full force, up to a maximum a twenty (20) years following termination or expiration of this Agreement. (b) Identification of Confidential Information. The Recipient’s duties under this section will apply only to information which is clearly identified as the Owner’s Confidential Information in writing delivered by the Owner prior to or within a reasonable time of delivery of any such Confidential Information by one part to the other. The Documentation and all non-public aspects of the Subscription Services shall in any event be considered TPW’s Confidential Information and the Customer Content shall in any event be considered Customer’s Confidential Information. (c) Exceptions to confidentiality obligations. Even if some information would be considered Confidential Information according to the definition stated in this Agreement, the Recipient will have no duties regarding that information if (i) the Recipient develops the same information without any use of information obtained from the Owner; or (ii) the Recipient rightfully obtains the information from some third party, without restrictions on use and disclosure, but only if the Recipient has no knowledge that the third party’s provision of that information is wrongful; or (iii) the information is made available to the general public without any direct or indirect fault of the Recipient. (d) PHI / BSA. In conjunction with the above confidentiality provisions, if Customer is subject to HIPAA and HITECH privacy and security regulations requiring protected health information (“PHI”) data governance, the parties agree to manage PHI pursuant to the Business Service Associate ("BSA") Addendum, attached hereto as Exhibit “B”. The foregoing notwithstanding, Customer authorizes TPW to provide Customer and/or Client Data to any third-party applications or vendors identified or selected by Customer to integrate with the TPW SaaS offering. It is up to Customer to ensure any third-party recipients of Customer or Client Data conform with any applicable federal, state or local privacy laws, rules or regulations.
17. Mutual Representations. Each Party represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
18. Exclusions of Remedies; Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY ANY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, DOCUMENTATION, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY TPW ARE PROVIDED “AS IS,” AND TPW DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. TPW DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY TPW WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO TPW BY THE CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN ADDITION TO THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT THE PROPER PROVISION OF SERVICES TO CUSTOMER’S CLIENTS IS SOLELY CUSTOMER’S RESPONSIBILITY AND THAT THE SUBSCRIPTION SERVICES ARE DESIGNED TO BE USED IN CONJUNCTION WITH OTHER PROCESSES AND PROCEDURES TO ENSURE PROPER PROVISION OF SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING UNANTICIPATED FAILURE OF THE SUBSCRIPTION SERVICES. AS SUCH, CUSTOMER SHALL MAINTAIN PAPER VERSIONS OF ANY RECORDS, PLANS AND SCHEDULES NECESSARY TO PROVIDE SERVICES TO ITS CLIENTS, AND TO PROVIDE THOSE RECORDS, PLANS AND SCHEDULES TO CUSTOMER’S EMPLOYEES REGULARLY TO ENSURE THAT PROPER SERVICE IS PROVIDED TO CUSTOMER’S CLIENTS UNDER ANY AND ALL CIRCUMSTANCES.
19. Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in Section 18 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the pricing, terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the pricing, terms and conditions of this Agreement would be substantially different.
20. Term & Termination. TPW and Customer agree to the following term and termination provisions: a) Term of Agreement. The parties intend for this Agreement to become legally enforceable starting on the Effective Date. This Agreement will remain in effect for so long as any Access Term remains in effect, unless it is terminated by one of the parties in one of the situations permitting termination as set forth below in this Section (the “Term”). This Agreement will expire as of the date that all Access Terms have expired. b) Termination for Breach. Either Party may terminate this Agreement immediately by providing a notice to the other Party if the notified Party has failed to perform any material obligation and has not fully cured the failure within thirty (30) days after it has been given an initial notice specifying the breach. c) Termination Upon Bankruptcy or Insolvency. Either Party may also have the right to terminate this Agreement in the event the other Party (i) becomes insolvent, (ii) becomes subject to a petition in bankruptcy filed by or against it that is not dismissed within thirty days of the filing of such petition, (iii) is placed under the control of a receiver, liquidator or committee of creditors, or (iv) dissolves, ceases to function as a going concern or to conduct its business in the normal course. d) Termination for other reason. The foregoing notwithstanding, and regardless of the Access Term agreed to by the parties, Customer or TPW may terminate this Agreement at any time for any reason upon not less than thirty (30) days advance written notice provided to TPW. e) General consequences of termination. Effective immediately upon expiration or termination of this Agreement, (i) Customer shall cease, and shall direct its users to cease, use of the Subscription Services, (ii) all licenses granted under this Agreement will become void, and (iii) neither Party will have continuing rights to use any Confidential Information of the other party or to exercise any Intellectual Property Rights having been licensed under this Agreement. As soon as can reasonably be accomplished after this Agreement expires or is terminated, each party will discontinue its use and will return the Confidential Information and proprietary materials of the other party. If Customer has payment obligations that have accrued but remain unpaid at the time of expiration or termination, Customer shall make payment in full, including any final thirty (30) day term under Section 20d, within ten (10) days after the expiration or termination. Following expiration or termination TPW will have no obligation to retain Customer Content and may, unless legally prohibited, elect at its sole option to delete all such Customer Content from its systems after providing a reasonable opportunity and means for Customer to obtain any such information. f) Continuing Force of Certain Provisions. Even if this Agreement expires or is terminated, the parties agree to remain bound by the provisions of Section 1, 7, 8, 11, 14, 15, 16, 18, 20(e), 20(f), 26, 27 and 28. The rights and duties created by those provisions will not expire or terminate, but will remain in effect for so long as the provisions themselves expressly state, or, if not stated, indefinitely. Each Party will retain any claims accrued prior to expiration or termination, such as accrued rights to receive payments from the other Party.
21. Conflicting Terms & Conditions. In the event of any conflict between this Agreement, and any Order Form or Statement of Work, this Agreement shall supersede and govern, followed in precedence by the Order Form and then the Statement of Work, unless, in each case, the Order Form or Statement of Work, as the case may be, both (i) expressly state that the parties mutually intend that the Order Form or Statement of Work should govern in that instance and (ii) expressly identify the provision(s) of this Agreement to be superseded. No pre-printed or “boilerplate” provisions of any purchase order or other document provided by Customer with or as part of any Order Form or Statement of Work shall pre-empt this Agreement or be binding upon TPW. The foregoing notwithstanding, if the parties have a fully executed written agreement that expressly governs orders for TPWs SaaS Offering or Subscription Services, such agreement shall supersede this Agreement.
22. Independent Contractor. The parties intend that no agency, partnership or other joint relationship be created hereby, and that neither party shall have authority to bind the other in any respect or direct the actions of the other except as specifically provided herein. The services performed by TPW hereunder shall be performed as an independent contractor and no person employed by TPW shall be deemed to be an employee of Client.
23. No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
24. Notice. Any notice given under this Agreement shall be in writing and will be deemed to have been given if it is (i) delivered personally, (ii) transmitted via confirmed email or facsimile with confirmation of delivery to the correct email address or facsimile number, or (iii) sent by overnight mail via courier, fees prepaid as of the date of receipt.
25. Force Majeure. Excuse from liability for non-performance due to force majeure. If a Party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of god, war, natural disaster and other events beyond all reasonable control of the non-performing party, including but not limited to an intra- or inter-state carrier level service issue with its voice and/or data transmission such as a carrier router outage.
26. Dispute Resolution. The parties shall attempt in good faith to resolve any dispute, claim or controversy that arises out of or relates to this Master Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate any "Dispute"), as follows: a) Negotiation. First, promptly by negotiation between executives with the authority to resolve such dispute. If the matter has not been resolved within thirty (30) days of a party's request for negotiation, either party may initiate arbitration as provided below. b) Arbitration. Second, if not resolved in accordance with subsection a above, the same shall be determined by binding arbitration conducted in the Jams office location in Philadelphia, PA, before a single arbitrator. The arbitration shall be administered by JAMS/ENDISPUTE pursuant to its Streamlined Arbitration Rules and Procedures, as amended by this Master Agreement. The costs of arbitration, including fees and expenses of the arbitrator, shall initially be shared equally by the parties, and each party shall bear the cost of preparing and presenting its case. However, the arbitrator shall, without exception, in the Award, allocate all of the costs of arbitration, including the fees of the arbitrator, case preparation and presentation, reasonable attorney’s fees and expenses, and any other reasonable expenses incurred in pursuing the claim, including any costs of collection thereafter, to the prevailing party. The parties agree that this provision and the arbitrator's authority to grant relief shall be subject to the United States Arbitration Act, 9 U.S.C. 1-16 et. seq. ("USAA"), the provisions of this Master Agreement, and the ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes. In no event shall the arbitrator have the authority to make any award that provides for special, incidental, exemplary, indirect, consequential, or punitive damages. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. The award may be confirmed and enforced in any court of competent jurisdiction. All post-award proceedings shall be governed by the USAA. c) Waiver of Jury Trial. To the fullest extent permitted by law, each Party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such Party) any right to a trial by jury in any action, suit, proceeding, or counterclaim arising out of or connected with this Agreement or the subject matter hereof.
27. Choice of Law. This Agreement is made and entered into in the Commonwealth of Pennsylvania. All issues related to or arising from this Agreement, and the rights and obligations of the parties, shall be governed by, and interpreted, construed, and determined in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflicts of law principles, or to the United Nations Convention on International Sale of Goods. Subject and subordinate to the terms of Section 26, jurisdiction and venue for any suit or related proceeding related to or arising out of this Agreement, or any services provided hereunder, shall be instituted in the appropriate state court in eastern Pennsylvania, or in the United States District Court for the eastern district of Pennsylvania, and Client hereby consents to such jurisdiction, venue and choice of law. Any award or judgment of any of said courts may be entered and enforced in any other domestic or foreign court of competent jurisdiction, and shall be awarded full faith and credit.
28. Compliance with Laws. Customer shall only use Subscription Services for lawful purposes in accordance with this Agreement, and any applicable laws, rules and regulations issued by governing authorities, whether issued by a local, state, federal or foreign government.
29. Participation in Drafting. The parties intend that this Agreement shall be interpreted in all instances as if they participated equally in the drafting of all its provisions, and that no provision in this Agreement should be interpreted in a manner unfavorable to a party on the basis that it drafted the provision.
30. Amendments. The parties acknowledge that they may desire to modify or amend this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by authorized representatives of each party.
31. Waivers. Even if a party fails to enforce its rights under this Agreement in a particular instance, the other party must still perform its duties in that instance unless the non-enforcing party provides an express, written waiver of its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.
32. Assignment; Delegation. This Agreement shall be binding and inure to the benefit of Customer, TPW and each of their respective successors and assigns. Neither TPW or Customer shall assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
33. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect. The invalidity of any provision of this Agreement shall not affect the validity of any other term or provision of this Agreement.
34. Signature & Counterparts. This Agreement may be signed and transmitted by facsimile, or scanned & emailed, in counterparts or as a whole, and a facsimile or digitally scanned copy shall have the same force and effect as a single, fully executed original.
35. Entire Agreement. This Agreement, including all Schedules and Exhibits attached hereto and hereby incorporated by reference, is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior or contemporaneous agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified by a written document executed by both parties.
1. Standard Training & Support. TPW shall provide the following standard training and support to all Customers who purchase Subscription Services:
|Standard Training & Support|
|Training||Includes up to 2 hours (120 minutes) of initial training within the first two (2) months of the Effective Date during the Initial Term of the Agreement.|
|Support||Includes up to 30 minutes per month after the first two months during the Initial Term of the Agreement.|
2. SaaS Maintenance Services. TPW shall provide the following “Maintenance Services” for any Subscription Services paid for by Customer:
2.1 Telephone / Email. TPW will provide reasonable telephone and/or email support for problem determination and resolution during TPW’s normal working hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, Eastern Time, for problems arising either during software development or production deployments involving Subscription Services. TPW may require Customer to provide a written assistance request to properly document the problem. • Support Phone Number: 800-655-6515 • Support Email Address: Support@TPW.com
2.2. Updates and Upgrades. TPW will, from time to time, make available to Customer corrections and minor modifications to existing features of the Subscription Services (“Updates”), and improvements that provide additional functionality to the Subscription Services (“Upgrades”) at no additional cost to Customer. Nothing here shall require TPW to make Updates or Upgrades except as provided herein. Updates and Upgrades will be treated as Subscription Services and subject to the same restrictions, terms and conditions contained in the Agreement.
2.3. Error Correction. TPW will make commercially reasonable efforts to correct reproducible or proven errors in the Subscription Services provided by TPW, excluding custom configurations such as custom reports or application extensions, and any software written or modified by Customer, in accordance with the following schedule and definitions. For the purposes hereof an “error” means a failure of the Subscription Services to perform substantially as provided in the Documentation.
|1||Emergency: Catastrophic product, module, or operational failure without a viable workaround.||2 business hours||Every 4 business hours||7 days|
|2||Urgent: Substantiated defects which pose a serious inconvenience to an Authorized User||4 business hours||Daily||3-5 business days||14 days|
|3||Non-Critical: All defects which an Authorized User can easily avoid or work around||5 business days||N/A||30 business days||Next Release|
2.3.1. Schedule Definitions. The terms used in the Schedule shall have the following meanings: “Acknowledgement” means an acknowledgement to the Customer, either in email or by phone as to the receipt of the problem as reported and a confirmation of the problem severity. TPW will begin the process of problem determination and resolution at this point. “Status Updates” means regular communications, either via email or phone as to the status of the problem determination and resolution. “Resolution” means providing, as appropriate, one of the following to Customer: an existing correction; a new correction; a viable detour or work-around; or a plan on how the problem will be corrected. “Closure” means providing, as necessary, a final correction or work-around of the defect including Updates of the Subscription Services. “Severity Classification” requires and means Customer shall when reporting an error, qualify and classify the Error in good faith and using its reasonable judgment. If TPW reasonably determines, in good faith, that a previously reported and in progress issue’s severity needs to be re-classified or escalated, TPW shall be entitled to do so upon providing notice to Customer of same. If any classification or re-classification is not agreed, the parties will attempt to resolve in good faith any dispute regarding the applicable classification.
3. Support Services by Third parties. TPW may designate third parties to provide any of the Maintenance Services identified in this Agreement.
4. Customer’s Obligations for Support Services. Customer will designate in writing up to three (3) contact persons, and provide and update contact information for those designees. The designees shall be the sole contacts for the coordination and receipt of the Maintenance Services set forth in these terms and conditions and should be knowledgeable about the Subscription Services.
5. Service Level Standards. The following defines service level standards for the Subscription Services:
|Service / Activity||Service Level||Service Level Credit|
|SaaS Uptime Availability||The Subscription Services shall have a monthly uptime availability to Authorized Users of at least 95.00%, not including any scheduled downtime, unavailability due to Customer’s inability to connect to the Internet, or a force majeure event. Scheduled downtime will be for regular maintenance and upgrades, and will be communicated with at least 24 hours notice. Any downtime that might require more than 2 hours will be scheduled at least 7 days in advance.||If Customer notifies TPW of unavailability exceeding the uptime availability service level indicated, TPW shall issue a credit to Customer for the pro-rata portion of total monthly recurring fee paid in that month by Customer for the core Subscription Services, based on the time which the Subscription Services were unavailable over and above the uptime availability service level commitment. Such pro-rata time shall be calculated based on minutes of unavailability.|
This Business Service Associate Addendum ("BSA Addendum") sets forth the terms and conditions under which the parties agree to manage Protected Health Information (as defined below) pursuant to the TPW Subscription Services Agreement by and between The Phone Works, Inc. (“Business Associate”) and Customers who are subject to HIPAA and HITECH regulations requiring PHI data governance (“Client”). This shall not apply to any Customers who are not subject to HIPAA or HITECH regulation. The following terms describe the intended use within this BSA Addendum:
"Breach" means, according to 45 C.F.R. Part 164 Subpart D, the unauthorized or unlawful acquisition, access, use, or disclosure of protected health information which compromises the security or privacy of the protected health information.
"Designated Record Set" is a group of records maintained by or for Client that includes: (a) the medical records and billing records about individuals maintained by or for a health care provider; (b) the enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or (c) used, in whole or in part, by or for Client to make decisions about individuals.
"HITECH" the Health Information Technology for Economic and Clinical Health (HITECH) Act, Title Xlll of Division A and Title lV of Division B of the American Recovery and Reinvestment Act of 2009 (Pub.L. 111-5)("ARRA"), and any resulting regulations, including, but not limited to, 45 C.F.R. Part 164, Subpart D.
"HIPAA Privacy Regulations" means the Health Insurance Portability and Accountability Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Parts 160, 162 and 164, Subpart E.
"HIPAA Security Regulations" means the Health Insurance Portability and Accountability Standards for Security of Individually Identifiable Health Information, 45 C.F.R. Parts 160, 162 and 164, Subpart C.
"Individually Identifiable Health Information" according to HIPAA Privacy Regulations is information that is a subset of health information, including demographic information collected from an individual, and: (a) is created or received by a health care provider, health plan, employer, or health care clearinghouse; (b) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (c) identifies the individual or with respect to whichthere is a reasonable basis to believe the information can be used to identify the individual.
"Protected Health Information" or "PHl" according to HIPAA Privacy Regulations is Individually Identifiable Health Information that is transmitted by electronic media, maintained in any medium, or transmitted or maintained in any other form or medium.
"Secretary" means the Secretary of the Department of Health and Human Services or designee.
"Unsecured Protected Health Information" means, according to 45 C.F.R. Part 164, Subpart D, protected health information that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary.
Section 1. HITECH Act under American Recovery and Reinvestment Act of 2009 (ARRA). As a Business Associate to Client, Business Associate agrees to comply with the current Privacy and Security Regulations, specifically Section 45 C.F.R. 308 (Administrative safeguards); 45 C.F.R. 164.310 (Physical safeguards); 45 C.F.R. 164.312 (Technical safeguards); and 45 C.F.R. 164.416 (Policies and procedures and documentation requirements), or other regulatory citations in effect at the time for the subject matter, in the same manner that such Sections apply to Client as the Covered Entity. In addition, if any regulatory changes to Section 45 C.F.R. 164.504(e) (Business Associate), occur subject to the implementation of HITECH, Client and Business Associate agree to amend this BSA Addendum, if and as necessary, in order to comply with any other changes subject to HITECH.
Section 2. Use and Disclosure of Protected Health Information. As a "Business Associate" to Client, Business Associate is required to ensure that its directors, officers, employees, contractors and agents do not use or disclose Protected Health Information (PHl) received from Client or another party or created on behalf of Client as maintained in a Designated Record Set in any manner other than as defined by the Agreement and this BSA Addendum, including a manner that would constitute a violation of the HIPAA Privacy Regulations if so used or disclosed by Client. Business Associate may use and disclose the minimum necessary of PHI to carry out its duties and obligations under the Agreement, which may be amended from time-to-time to include other duties and obligations related to PHl, or use or disclose PHI as required by law. In addition, Business Associate may use PHI for its own management and administration provided the disclosures are required by law, or, after obtaining the prior consent of Client, which consent shall not be unreasonably withheld, in instances where the disclosure of PHI is not required by law, Business Associate shall obtain reasonable assurances from the person to whom the PHI is disclosed that the information remain confidential and used or re-disclosed only as required by law or for the purpose for which it was disclosed. Furthermore, Business Associate shall require the person to immediately notify Business Associate of any instances of which it is aware that a breach of confidentiality occurred.
Section 3. Safeguards Against Misuse or Wrongful Disclosure of Protected Health Information. Business Associate agrees that it will use reasonable and appropriate administrative, physical and technical safeguards pursuant to the HIPAA Security Regulations to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of the Agreement, this BSA Addendum, or as required by law.
Section 4. Reporting of Wrongful Disclosures of Protected Health Information. A breach or suspected breach of unsecured PHI must be reported to Client on the first day that the breach is known to the Business Associate. Regarding secured PHI within five (5) days of the Business Associate becoming aware of an unauthorized disclosure or use of PHI that breach must be reported to Client. Where a breach occurs in violation of the Agreement, this BSA Addendum, or law, the Business Associate shall report the wrongful disclosure to Client's Privacy Officer.
Section 5. Agreements with Subcontractors or Agents. If Business Associate enters into an agreement with any agent or subcontractor in fulfillment of its obligations under the Agreement, and the agent or subcontractor will have access to PHI, Business Associate must assure that agent or subcontractor is bound with respect to PHI by the same restrictions, terms and conditions of the Agreement including this BSA Addendum.
Section 6. Access to Protected Health Information. Business Associate shall notify Client within fifteen (15) days of a request by a patient for access (inspection or receipt of a copy) to PHI in its possession. The parties agree to arrange for inspection and copying of the information as requested by the patient in compliance with Client's privacy practices, policies, HIPAA Privacy Regulations, and any applicable state law, including charging the patient for photocopying. Client is responsible to respond to the patient's request for access to PHI.
Section 7. Amendment of Protected Health Information. Business Associate shall notify Client within fifteen (15) days of receipt of a request by a patient to amend any PHI in its possession. Any patient request to amend PHI shall follow Client's privacy policies, practices, HIPAA Privacy Regulations, and any applicable state law. The parties agree that Client shall be responsible to respond to the patient's request for amendment; Business Associate may amend PHI only upon the express written direction of Client.
Section 8. Accounting of Disclosures. Business Associate may only disclose PHI as described in the Agreement and Section 1 above. Furthermore, Business Associate shall provide to Client the following information within fifteen (15) days of receipt of Client's request for an accounting of all disclosures made of a patient's PHI: (a) the date of the disclosure; (b) the name of the entity or person who received the PHI, and if known, the address of such entity or person; (c) a brief description of the PHI disclosed; and (d) a brief statement of the purpose of such disclosure. In the event a patient requests an accounting of disclosures of his or her PHI directly from Business Associate, Business Associate shall within five (5) business days forward such request to Client. Client is responsible to respond to such request.
Section 9. Availability of Books and Records. Business Associate agrees to make its HIPAA practices, books and records, including policies and procedures relating to the use and disclosure of PHI received from Client or another party on Client's behalf or created on Client's behalf available to the Secretary during normal business hours for purposes of determining Client's compliance with the HIPAA Privacy Regulations. Business Associate shall immediately notify Client's Privacy Officer if the Secretary requests access to its practices, books or records, and allow Client to review the same practices, books or records provided to the Secretary. In addition, Business Associate shall make available to Client's Privacy Officer, subject to a privacy investigation, such HIPAA related practices, books, and records including policies and procedures relating to the use and disclosure of PHI under the Agreement.
Section 10. Electronic Data Security. Business Associate agrees to implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI that it creates, receives, maintains or transmits to or on behalf of Client as required by the HIPAA Security Regulations and other HITECH requirements and pursuant regulations. Business Associate further agrees to ensure that any agent or subcontractor to whom it provides such information, agrees to implement reasonable and appropriate safeguards to protect the information. Business Associate agrees to promptly report to Client any security incident which includes, under HIPAA Security Regulations, the attempted or successful unauthorized access, use, disclosure, modification or destruction of information or interference with system operation of which Business Associate becomes aware.
Section 11. Termination Upon Breach of Provisions Applicable to Protected Health Information. The Agreement may be terminated by either party in response to a material breach by the other of its obligations hereunder, or under the Agreement, after providing the other party a thirty (30) day period in which to cure the breach. If cure is not possible, the non-defaulting party may immediately terminate the Agreement. However, if the material breach pertains to a use or disclosure of PHI not otherwise permitted herein, the breaching party shall use its best efforts to cure the breach within five (5) business days, but shall have up to ten (10) business days to cure the breach. Furthermore, in the event that termination of the Agreement is not feasible, the parties acknowledge that the non-defaulting party shall have the right to report the breach to the Secretary.
Section 12. Return or Destruction of Protected Health Information upon Termination. Upon termination of the Agreement, Client and Business Associate shall mutually determine whether Business Associate is to return, destroy, or retain all PHI in any form in its possession. If Business Associate is required to retain PHl, the terms and conditions of this BSA Addendum shall survive termination of the Agreement, and such PHI shall be used or disclosed solely for the purpose or purposes which prevented the return or destruction of the PHl. If Business Associate is required to return or destroy PHl, it shall not keep a copy of the PHl. Furthermore, if Business Associate is required to destroy PHI it shall use reasonable methods of destruction to assure that a breach of confidentiality does not occur during the process.
Section 13. Changes in Laws and Regulations and Compliance with Laws. Client and Business Associate agree to amend this BSA Addendum as required to comply with any changes in laws, rules or regulations which affect the privacy and security of PHI and the Business Associate's duties under the Agreement and/or this BSA Addendum. Furthermore, Business Associate agrees to cooperate with Client, as applicable, related to any other federal laws or regulations that affect PHI such as "Red Flag Rules" related to identity theft.