Terms and Conditions

TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS ARE PART OF A SAAS AGREEMENT (“AGREEMENT”) BETWEEN PROFICIENT, INC. (“COMPANY”) AND THE CUSTOMER (“CUSTOMER”) WHO IS IDENTIFIED IN A SCHEDULE REFERENCING THESE TERMS.  THIS AGREEMENT IS ENTERED INTO ON THE EFFECTIVE DATE SPECIFIED ON THE SCHEDULE, AND IS COMPRISED OF THESE TERMS AND CONDITIONS, THE SCHEDULE, AND EXHIBIT A.  COMPANY MAY MODIFY THE TERMS AND CONDITIONS AND EXHIBIT A BY POSTING UPDATED VERSIONS ON THE COMPANY WEBSITE.  SUCH MODIFICATIONS BECOME EFFECTIVE AND BINDING ON CUSTOMER UPON THE EARLIER OF CUSTOMER ACCESS TO OR USE OF THE SAAS SERVICES FOLLOWING THE POSTING OF THE UPDATED VERSIONS, OR THIRTY DAYS AFTER THE UPDATES ARE POSTED.

Definitions.

  1. “Content” means information obtained by Company from publicly available sources or its third party content providers and made available to Customer through the SaaS Services or any Other Services provided for in this Agreement.
  2. “Customer Data” means certain data, content, or materials provided by a Customer and/or End User when using the SaaS Services. Customer, for itself and all End Users, is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all Customer Data. Customer shall obtain and maintain any rights, consents, and approvals required to grant Company and authorized third parties the right to access and use any Customer Data for the purposes described herein.
  3. “Documentation” means all user manuals, operating manuals, technical manuals and any other instructions, specifications, documents and materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, technical or other components, features or requirements, online help, release notes, training materials, the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, and other documentation provided or made available by Company to Customer and its End Users, as updated from time to time, regarding the use or operation of the SaaS Services.
  4. “End User” means an individual who is authorized by Customer to use the SaaS Services or Other Services, for whom Customer has purchased a subscription (or in the case of any Services provided by the Company without charge, for whom such service has been provisioned), and to whom Customer (or, when applicable, the Company at Customer’s request) has supplied a user identification and password (for utilizing authentication). End Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
  5. “Go-Live Date” means the date on which SaaS Services ordered pursuant to a SaaS Schedule hereunder are first available for use by Customer. 

 

  1. “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.

 

  1. “Maintenance Services” means the support and maintenance services provided by Company to Customer pursuant to this Agreement and Exhibit A.

 

  1. “Other Services” means all technical and non-technical services performed or delivered by Company under this Agreement, including, without limitation, implementation services, consulting, professional and/or customer  services, training and other services but excluding the SaaS Services and the Maintenance Services. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a Schedule and mutually agreed to by the parties. All Other Services will be provided on a non-work for hire basis.

 

  1. “Provider” means a Doctor of Medicine, Doctor of Osteopathic Medicine, Nurse Practitioner, Physical Therapist, Physician Assistant or member of Customer’s network of health care professionals who is identified on a master list of such health care professionals as provided by Customer to Company during implementation and on a quarterly basis.    

 

  1. “SaaS Services” means the Company’s web-based, on-line, hosted software as a service listed in a Schedule that provides use of Company’s Software and Content to the Customer, or its End Users, over a network on a term-use basis.

 

  1. “Software” means the object code version of any software to which Customer and its End Users are provided access as part of the SaaS Services, including any updates or new versions.

 

  1. “Schedule” is a written document executed by Company and Customer for the purpose of licensing use of the SaaS Services consistent with the terms and conditions of this Agreement.  A Schedule can take the form of a SaaS Schedule, Quote, or Order Form. 

 

  1. “Third Party Applications” means a web-based, mobile, offline or other software application functionality that interoperates with the SaaS Service, that is provided by a third-party and not by the Company and governed by such party’s applicable license agreement (e.g. clickwrap).   

 

  1. Grant of License.

 

  1. Grant. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer and its End Users who have been registered with Customer, a non-exclusive and nontransferable license, without right of sublicense, during the term of your contract, to access and use the Content and Software in connection with SaaS Services via the Internet. Customer agrees that its purchase of subscription(s) for the SaaS Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Company with respect to future functionality or features. Upon expiration or termination of this Agreement, the rights and licenses granted hereunder will automatically terminate, and Customer and any End User may not continue to use the SaaS Services.

 

  1. Restrictions. The license granted in subsection (a) above is conditioned upon Customer and its End Users’ compliance with the terms and conditions of this Agreement and all applicable law. Customer may use the SaaS Services, associated Documentation, and Content for its internal business purposes as well as commercialization and support of its End Users as provided for herein. Customer and End Users shall not: (i) permit any third party to access or use of the SaaS Services except as permitted herein, (ii) modify or create derivative works based on the SaaS Services, Documentation, or Content; (iii) modify, reverse engineer, translate, disassemble, or decompile the SaaS Services or Documentation, or cause or permit others to do so, except and only to the extent such activity is expressly permitted by applicable law; (iv) access or use the SaaS Services, or in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions, or graphics of the SaaS Services or Documentation; and (v) remove or obscure any title, trademark, copyright, and/or restricted rights notices or labels from SaaS Services or Documentation. Violation of any provision of this Section shall be the basis for immediate termination of this Agreement and the SaaS Services provided to Customer and all End Users.

 

  1. Reserved Rights. Subject to the limited licenses granted herein, Company shall own all right, title and interest in and to the Software, SaaS Services and Documentation including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Company through execution of this Agreement.

 

  1. Use of SaaS Services.
    1. General Access and Use. The SaaS Services may be used and accessed for Customer’s own purposes and only by (i) Customer’s employees, authorized agents and Customer’s independent contractors while doing work for Customer and (ii) End Users. For avoidance of doubt, independent contractors may use the SaaS Services only for the benefit of Customer and not for their own or any other company’s business operations.
    2. Company Responsibilities. Company shall endeavor to respond to the Customer support inquiries within a reasonable time, provided Customer provide any information and/or materials reasonably requested, including without limitation any information needed to replicate, diagnose, and correct any error or other problem reported by Customer (for itself or any End User) relating to the access or use of the SaaS Services.

 

  1. Customer Responsibilities. Customer shall be responsible for its and all End Users’ compliance with this Agreement and shall be responsible for the Customer Data, including its accuracy, and to ensure the SAAS Services are not used as a replacement for use of an electronic health record or electronic medical record system to place, fulfill, track and retain data associated with patient care. Customer for itself and its End Users shall not (i) use the SaaS Services 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, (ii) use the SaaS Services to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the SaaS Services or third-party data contained therein or any systems or networks or violate the regulations, policies, or procedures of such networks used with the SaaS Services, (iv) attempt to gain unauthorized access to the SaaS Services or its related systems or networks, the Company data or the data of any other Company customers, or (v) harass or knowingly or intentionally interfere with another Company customer’s use and enjoyment of the SaaS Services. Any conduct by End User that in Company’s sole discretion restricts or inhibits any other Company customer from using or enjoying the SaaS Services is expressly prohibited. End User will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services, and notify Company promptly of any such unauthorized access or use.

 

  1. User Credentials. Customer and/or End User, as applicable, are solely responsible for maintaining the confidentiality of user credentials, including any required for multi-factor authentication, and any password used with End User accounts (“User Credentials”). Customer is responsible for any and all activities that occur under all End User’s accounts. Customer will notify Company immediately of any unauthorized use of End User’s accounts or any other breach of security. Company will not be liable for any loss that End User may incur as a result of someone else using End User’s passwords or accounts, either with or without the End User’s knowledge.

 

  1. Customer / End User Input. Customer or End User is solely responsible for collecting, inputting and updating, and storing or otherwise retaining all Customer Data, and for ensuring that the Customer Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Company immediately of any unauthorized use of any User Credentials or any other known or suspected breach of security, (ii) report to Company immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any End User, and (iii) not provide false identity information to gain access to or use the Software of the SaaS Services.

 

  1. Compliance with Laws. Each party shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission and retention of technical or personal data including, without limitation, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its implementing regulations (45 CFR Parts 160 and 164) and standards related to Individually Identifiable Health Information (“Privacy Rule”) the Health Information Technology for Economic Clinical Health Act (HITECH Act), and the Centers for Medicare & Medicaid Services. Customer acknowledges that Company exercises no control over the content of the information transmitted by Customer or any End User through the SaaS Services. Customer and End User shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

 

  1. Reserved Rights. Company reserves the right in its sole discretion to decline to license access and use of the SaaS Services to End User. Company further reserves the right in its sole discretion to terminate End User’s license to access and use the SaaS Services, at any time, for reasons including, but not limited to, a breach or other violation of the terms and conditions set forth in this Agreement; abuse of the SaaS Services or Company’s underlying systems; illegal or misrepresentative use of the SaaS Services or underlying systems; and acts or circumstances detrimental to Company, its other customers, associates, business partners, suppliers, or others, whether or not such circumstances are directly under the control of End User. Company shall promptly communicate to End User its decision to terminate End User’s license to access and use the SaaS Services pursuant to this Section as well as, if it so chooses, the relevant reason(s) for such termination. Customer agrees for itself and its End Users to provide any assistance reasonably requested by Company in connection with such termination. Termination under this subsection (g) shall be without any liability to End User whose access and use license is terminated.

 

  1. Intellectual Property Rights.

 

  1. General. All right, title, and interest in and to the Software, SaaS Services, Company’s Confidential Information, including, without limitation, all modifications, enhancements, and intellectual property rights thereto, shall belong solely to Company and/or its applicable licensors (e.g. Third Party Applications).

 

  1. Ownership of Customer Data. Customer exclusively owns all right, title, and interest in and to the Customer Data and End User Confidential Information. In the event of termination or expiration of your contract, and if legally permissible and requested by End User within thirty (30) days of such termination or expiration, Company agrees to: (i) return to Customer the Customer Data; or (ii) destroy or permanently erase the Customer Data. After such 30-day period, Company will have no other further obligation to maintain or provide access to Customer Data, and shall have the right to destroy the Customer Data and permanently erase the Customer Data without any liability to Customer or End User.

 

  1. Suggestions. Company shall exclusively own all right, title, and interest in and to any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by Customer or any End User relating to the SaaS Services, Software, or Other Services.

 

  1. Confidential Information.

 

  1. Each party (the “Disclosing Party” for purposes of this Section 5) may disclose to the other party (the “Receiving Party” for purposes of this Section 5) certain non-public information relating to such party’s business, including, without limitation, technical, marketing, financial, personnel, planning, and other information that is marked confidential, or which the Receiving Party should reasonably know to be confidential given the nature of the information and the circumstance of disclosure (“Confidential Information”). The Receiving Party agrees that it will not disclose Disclosing Party’s Confidential Information except (i) to the employees, contractors, advisors, or agents of the Receiving Party to the extent that they need to know that Confidential Information for the purpose of performing such party’s obligations under your contract, and who are bound by confidentiality terms with respect to that Confidential Information no less restrictive than those contained in this Section 5; or (ii) as required to be disclosed by law, to the extent required to comply with that legal obligation, provided that the Receiving Party will promptly notify the Disclosing Party of such obligation, unless otherwise prohibited by such law or legal obligation.

 

  1. With respect to the SaaS Services delivered to End Users, the definition of Confidential Information set forth in this Agreement shall include the Customer Data and the SaaS Services (including all underlying software and systems of Company used with the SaaS Services), subject to the exceptions set forth in this Agreement.

 

  1. Warranties. 

 

  1. Company warrants during the Subscription Term, that the SaaS Services will be free of material defects and will function in substantial conformance to the Documentation provided to Customer and its End Users by Company. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT (I) ANY DATA OR INFORMATION GLEANED OR OTHERWISE DERIVED FROM THE USE OF THE SAAS SERVICES INCLUDING, WITHOUT LIMITATION, ANY RECOMMENDATION OR ADVICE WILL MEET CUSTOMER OR ANY END USER’S EXPECTATIONS OR BUSINESS OR COMMERCIAL PURPOSES OF ANY KIND, (II) THE FUNCTIONS PERFORMED BY THE SAAS SERVICES WILL MEET THE CUSTOMER OR ANY END USER’S REQUIREMENTS, (III) THE OPERATION OF THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR (IV) ALL DEFECTS IN THE SAAS SERVICES WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND COMPANY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT COMPANY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. USE OF THE SAAS SERVICES DOES NOT GUARANTEE THAT YOU WILL BE IN COMPLIANCE WITH HIPAA, AND CUSTOMER UNDERSTANDS AND AGREES THAT IT IS RESPONSIBLE FOR MAINTAINING ADMINISTRATIVE, TECHNICAL AND PHYSICAL SAFEGUARDS NECESSARY TO ENSURE THE CONFIDENTIALITY, AVAILABILITY, AND INTEGRITY WITH RESPECT TO ANY REQUIREMENTS PROMULGATED BY AND UNDER HIPAA. EXCEPT AS SPECIFICALLY PROVIDED FOR ABOVE, THE SAAS SERVICES AND ALL OTHER SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF COMPANY’S OBLIGATIONS HEREUNDER. NO ACTION FOR BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6 MAY BE COMMENCED MORE THAN ONE (1) YEAR FOLLOWING IN WHICH THE CLAIM AROSE.
  2. NONE OF THE WARRANTIES OR REQUIREMENT TO PROVIDE MAINTENANCE SERVICES APPLY TO DEFECTS OR CLAIMS ARISING FROM OR SUSTAINED BY (I) ABUSE, NEGLECT OR MISUSE OF THE SAAS SERVICES; (II) USE OF UNAUTHORIZED PARTS OR FAILURE TO MAINTAIN ANY HARDWARE REQUIRED FOR USE OF THE SAAS SERVICES; (III) UNAUTHORIZED MODIFICATIONS, ENHANCEMENTS OR ADDITIONS MADE BY PERSONS NOT DIRECTLY RESPONSIBLE TO THE COMPANY, (IV) CAUSES OTHER THAN ORDINARY USE UNDER NORMAL CONDITIONS; (V) FAILURE BY CUSTOMER AND ANY END USER TO PUT IN PLACE AND TECHNICAL AND OTHER REQUIREMENTS PROVIDED IN WRITING BY COMPANY; (VI) INSTALLATION OR CONFIGURATION OF ANY HARDWARE OR SOFTWARE BY A THIRD-PARTY NOT PREVIOUSLY APPROVED IN WRITING BY THE COMPANY; (VII) ANY FAILURE TO CONFIRM USE OF CORRECT DOSAGE AND USE OF MEDICATIONS, SUPPLEMENTS AND SUPPLIES PRIOR DISPENSING AND ADMINISTRATION TO PATIENTS OR OTHER THIRD PARTIES; AND (VIII) USE OF THE SAAS SERVICES TO COMMUNICATE, FACILITATE OR OTHERWISE ACT AS AN ELECTRONIC HEALTH RECORD OR ELECTRONIC MEDICAL RECORD SYSTEM FOR THE PLACING, AND FILLING OF ORDERS AND DATA RETENTION THEREOF RELATED TO FOR PATIENT CARE (EACH, AN “EXCLUSION EVENT”). ANY SERVICES PROVIDED BY THE COMPANY WITH RESPECT TO ANY OF THE FOREGOING EXCLUSIONS OR FOR ANY OTHER CAUSE THAT IS NOT ATTRIBUTABLE TO THE COMPANY WILL BE BILLED TO CUSTOMER AT THE COMPANY’S THEN-CURRENT TIME AND MATERIALS RATES.  

 

  1. Limitation of Liability.  NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF COMPANY) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, LOSS OR INTERRUPTION OR CORRUPTION OF ANY CUSTOMER DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE MONTH PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE PARTIES’ OBLIGATIONS (OR ANY BREACH THEREOF) UNDER SECTION 2(B) (RESTRICTIONS) OR SECTION 5 (CONFIDENTIAL INFORMATION).

 

  1. Indemnification.

 

  1. Indemnification by Company. Company will indemnify, defend and hold Customer, its officers, directors, affiliates, subsidiaries, agents, and employees, harmless from any loss, damages, costs, or expenses, including reasonable attorneys’ fees, arising out of a third-party claim or action against such parties:

(i) for injuries or damage to any person or property to the extent caused by the negligent acts or omissions of Company or its  personnel;

 

(ii) by any person claiming ownership or possessory interest, lien, trust, pledge, or security interest in any Company equipment or software, including without limitation any attempt by such third party to take possession of the equipment or software;

 

(iii) based on an actual or alleged infringement of any United States patent, copyright, service or trademark or other intellectual or industrial property right (including, without limitation, misappropriation of trade secrets) arising out of or connected with the Company’s delivery of the SaaS Services;  or

 

(iv) based on a violation of any applicable laws, rules, or regulations including, without limitation, the provisions of Section 3(f).

  1. Indemnification by Customer. Customer will indemnify, defend and hold Company, its officers, directors, affiliates, subsidiaries, agents, and employees, harmless from any loss, damages, costs, or expenses, including reasonable attorneys’ fees, arising out of a third-party claim or action against such parties:

 

(i) for injuries or damage to any person or property to the extent caused by the acts or omissions of Customer, or the Customer’s personnel, or any End User including, without limitation, any Claims arising from any Exclusion Event or Customer Data;

 

(ii)   based on an actual or alleged infringement of any patent, copyright, service or trademark or other intellectual or industrial property right (including, without limitation, misappropriation of trade secrets) resulting from any Customer Data; 

 

(iii) by any person claiming ownership or possessory interest, lien, trust, pledge, or security interest in any equipment or software provided to Customer or any End User, including without limitation any attempt by such third party to take possession of the equipment or software, unless such claim results from acts or omissions of Company; or

 

(iv) based on a violation of any applicable laws, rules, or regulations including, without limitation, the provisions of Section 3(f).

 

  1. Conditions on Indemnification. The parties shall cooperate to provide an efficient and effective defense of the claim and to control costs and attorneys’ fees consistent with a proper defense. The indemnified party will provide indemnifying party with reasonable assistance, information and authority necessary for indemnifying party to perform its obligations under this Section 8, and indemnifying party will reimburse the indemnified party for all reasonable expenses incurred in providing such assistance and information. At the indemnifying party’s request and expense, the indemnified party shall permit the indemnifying party to exercise sole control of the defense or settlement of the claim; provided, that the indemnifying party will not enter into a settlement agreement that adversely affects the indemnified party’s rights or obligations, or has the effect of creating any liability or obligation (whether legal or equitable) on the indemnified party, without the prior written approval of the indemnified party. A party’s approval shall not be unreasonably withheld or delayed. 

 

  1. Remedies for Infringement.  If the SaaS Services, or any portion thereof are enjoined under any award or settlement, Company, at its option and expense, will:

 

(i) procure the right to continue using SaaS Services;

 

(ii) replace the SaaS Services or infringing portion thereof with a non-infringing product or service; or 

 

(iii) modify SaaS Services so they become non-infringing. 

 

If the remedies set forth in (a) through (c) are not possible on commercially reasonable terms, Company may terminate the Subscription Term for the allegedly infringing SaaS Services, and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date. Notwithstanding the foregoing, Company shall not be liable for any claim of infringement resulting for any claim based on (i) the Customer Data, (ii) modification of the SaaS Services not authorized by Company, or (iii) use of the SaaS Services other than in accordance with the Documentation and this Agreement.

The foregoing states the Company’s entire liability and Customer’s exclusive remedy for infringement of intellectual property rights.

 

  1. Access and Monitoring. Company and its authorized subcontractors may access End User’s account and Customer Data as necessary to identify or resolve technical problems or respond to complaints about the SaaS Services or as may be required by law. Company shall also have the right, but not the obligation, to monitor the SaaS Services to determine End User’s compliance with this Agreement. Without limiting the foregoing and with two (2) days prior notice, Company shall have the right to remove any material submitted to the SaaS Services that Company finds to be in violation of the provisions of this Agreement.

 

  1. Orders and Payment. 

 

  1. Orders. Customer shall order SaaS Services or Other Services pursuant to a Schedule. All services acquired by Customer shall be governed exclusively by this Agreement and the applicable Schedule. In the event of a conflict between the terms of a Schedule and this Agreement, the terms of the Schedule shall take precedence.

 

  1. Invoicing and Payment. Unless otherwise provided in a Schedule, Company shall invoice Customer for all fees on the Schedule effective date. Customer shall pay all undisputed invoices, or portions thereof, within 30 days of the invoice date. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars, and must be paid by Customer to Company in United States Dollars. Fees are exclusive of any applicable sales, use, or similar type taxes. Interest charges will be imposed at the rate of 1.5% per month for any invoice not paid by the due date. Termination of service will occur in the event the account becomes 90 days delinquent. Any fees charged by vendor services utilized, will be passed thru and invoiced to the customer. 

 

  1. Renewals. Company shall have the right to increase the per-unit pricing for any Renewal Periods by up to five percent (5.0%) above the applicable pricing in the prior Subscription Term subject to Company providing written notice to Customer one hundred eighty (180) days prior to expiration of the then-current Subscription Period. The Subscription Term will automatically renew as provided for in the Schedule unless either party gives the other notice of non-renewal at least one hundred eighty (180) days prior to the then current Subscription Term. Except as expressly provided in the applicable Schedule, renewal of promotional or one-time priced Subscription Term will be at the Company’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, the parties agree that in connection with an upcoming Renewal Period, if Customer’s subscription volume for any SaaS Services has decreased from the prior Subscription Period, then, upon Customer’s written request prior to the commencement of the new Subscription Period,  the SaaS Services will be repriced for review by Customer.  Such renewal pricing will be determined  at then current pricing and without regard to the prior Subscription Period’s per-unit pricing.  

 

  1. Expenses. Customer will reimburse Company for its reasonable, out-of-pocket travel and related expenses incurred in performing the Services. Company shall comply with Customer’s travel and expense policy if made available to Company prior to the required travel. 

 

  1. Taxes. Customer is responsible for any taxes, duties, fees or surcharges that are imposed or authorized by regulatory and governmental entities relating to the SaaS Services provided by the Company, including but not limited to sales, use, gross receipts and value added taxes, surcharges, franchise fees, occupational, excise, and universal service (state and federal) taxes and surcharges (but not including any tax directly imposed on Company’ net income) and will pay to Company or reimburse Company upon invoicing or request for amounts paid by Company relating to the SaaS Services provided to Customer and its End Users. If Customer or any End User is subject to paying value added taxes (“VAT”) in any jurisdiction but such taxes are not specifically invoiced or collected by the Company, then it shall be Customer’s sole responsibility to timely submit its own tax returns and pay the related VAT directly to the taxing authorities in such jurisdictions and the Company shall have no liability related thereto. Written proof of exempt status must be provided to Company for exemption of sales, use or similar taxes.  

 

  1. Term and Termination. 

 

  1. Term of Agreement. The term of this Agreement shall begin on the Effective Date and shall continue until the end of the Subscription Term unless earlier terminated by either party as outlined in this Section 11.   

 

  1. Termination. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach. 

 

  1. Suspension for Non-Payment. Company reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to Company under this Agreement, but only after Company notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Company shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s nonpayment.

 

  1. Suspension for Ongoing Harm. Company reserves the right to suspend delivery of the SaaS Services if Company reasonably concludes that Customer or an End User’s use of the SaaS Services or Other Services is causing immediate and ongoing harm to Company or others. In the extraordinary case that Company must suspend delivery of the SaaS Services, Company shall notify Customer as soon as practicable of the suspension and the parties shall diligently attempt to resolve the issue. Company shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this subsection (d). Nothing in this subsection (d) will limit Company’s rights under subsection (e) below.

 

  1. Effect of Termination.  

 

(i) Upon termination of this Agreement or expiration of the Subscription Term, Company shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall terminate. 

 

(ii) If Company terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Company all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to an uncured breach by Company, then Company shall repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date. 

 

(iii) Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

 

  1. General Provisions.

 

  1. Non-Exclusive Service. Customer acknowledges that SaaS Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Company’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.

 

  1. Personal Data. Customer hereby acknowledges and agrees that Company’s performance of this Agreement may require Company to process, transmit and/or store Customer or End User personal data or the personal data of Customer employees and affiliates. By submitting personal data to Company, Customer agrees that Company and its affiliates may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling Company to perform its obligations under this Agreement. In relation to all Personal Data provided by or through Customer to Company, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws such as EU Directive 95/46/EC and laws implementing that Directive that regulate the processing of Personal Data and special categories of data as such terms are defined in that Directive. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Content and using the Software and SaaS Services. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in User Content, including any information which Company shares with third parties on Customer or any End User’s behalf. Customer is solely responsible for determining the purposes and means of processing Personal Data by Company under this Agreement, including that such processing according to Customer’s instructions will not place Company in breach of applicable data protection laws. Prior to processing, Customer will inform Company about any special categories of data contained within Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross border transfer restrictions. Customer is responsible for ensuring that the Company meets such restrictions or special requirements. 

 

  1. Company Personal Data Obligations. In performing the SaaS Services, Company will comply with its privacy statement, which is available at www.proficienthealth.com and incorporated herein by reference (“Privacy Statement”). The Privacy Statement is subject to change at Company’s discretion; however, such policy changes will not result in a material reduction in the level of protection provided for Customer data during the period for which fees for the services have been paid. The services policies referenced in this Agreement specify our respective responsibilities for maintaining the security of End User data in connection with the SaaS Services. Company reserves the right to provide the SaaS Services directly, through cloud providers, and/or through use of subcontractors, worldwide. Company will only process Customer and/or End User Personal Data in a manner that is reasonably necessary to provide SaaS Services and only for that purpose.  Customer and its End Users agree to provide any notices and obtain any consent related to Company’s use of the data for provisioning the SaaS Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness and retains ownership of all of Customer Data.

 

  1. Assignment. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.

 

  1. Notices. Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by email to the email address set forth on the cover page of this Agreement, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this Agreement.

 

  1. Force Majeure. Neither Party shall be liable for any failure to meet its obligations under this Agreement if the failure is due to causes beyond the reasonable control of such Party.  The Party claiming excusable delay shall give notice to the other, in writing, as soon as possible after the occurrence of the cause relied upon as well as after termination of the condition.  Nothing herein shall be deemed to excuse either Party from making payments due under this Agreement.

 

  1. Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

 

  1. Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.

 

  1. Entire Agreement. This Agreement (including all Schedules and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.

 

  1. Survival. Sections 1, 4, 5, 7, 8, 10, and 12 of this Agreement shall survive the expiration or termination of this Agreement for any reason.

 

  1. Publicity. Company may include Customer’s name and logo in its customer lists and on its website. Upon signing, Company may issue a high-level press release announcing the relationship and the manner in which Customer will use the Company solution. Company shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.

 

  1. Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Services. Customer agrees that such export control laws govern its use of the SaaS Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.

 

  1. No Third Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity. 

 

  1. Independent Contractor. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

 

  1. Derived Data. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the SaaS Services, Software, and Other Services provided to Customer and End User and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance any of the foregoing services and for other development, diagnostic and corrective or improvement purposes in connection with the services, product testing, research and development opportunities including, without limitation, research into learning and development practices and corresponding effectiveness, and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

 

  1. Governing Law. This Agreement shall be governed by the laws of the State of North Carolina, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. 

 

  1. Compliance with Laws. Company shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy and data protection, international communications, and the transmission of technical or personal data. 

 

  1. Dispute Resolution. Customer’s satisfaction is an important objective to Company in performing its obligations under this Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it. 

 

  1. Signatures. This Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.