DSN Terms of Service

RECITALS

A.       Client desires to enter into this Agreement with Service Provider to provide Cloud, software and support services pursuant to the terms of this Agreement.

B.       Service Provider will agree to perform the desired services (defined below in Sec. 1, hereinafter “Services”) at the request of Client pursuant to the terms and pricing in this Agreement.

AGREEMENT

In consideration of the mutual covenants and representations set forth in this Agreement, Client and Service Provider agree as follows:

1.       THE SERVICES.

1.1.            Purpose. This Agreement sets forth the terms and conditions under which Service Provider agrees to license certain hosted “software as a service” and provide all other services, support, backup, and recovery necessary for Client’s use of such software (collectively, the “Services”), as further set forth in Exhibit A.

1.2.            Authorized Users. Unless otherwise limited on an Exhibit A, Client and its employees and authorized users (“Users”) have the right to operate, access and use the Services.  The Service Provider shall provide the functionality to allow Client to implement passwords, user identification, and password change management.

1.3.            Control of Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Service Provider.

1.4.            Security of Client Data. For purposes of this Agreement, “Client Data” shall mean all data of Client hosted by Service Provider pursuant to this Agreement. Service Provider will host Client Data in secure facilities.  Service Provider shall be deemed to have exercised reasonable care in the maintenance, custody, and preservation of Client Data in Service Provider’s possession if such Client Data is treated substantially the same as Service Provider treats its own like data.

1.5.            Change Control Procedure.  Client may make a written request to increase the scope of the Services as set forth in Exhibit A. Any request for increase(s) in Services shall be made in writing; Service Provider shall notify Client within ten (10) business days whether the requested increase(s) is available and provide an itemization of any additional proposed costs. The Parties shall execute a written change order reflective of any agreement for increased services.

2.       ACCESSIBILITY AND PERFORMANCE.

2.1.            Performance. Service Provider will monitor performance indicators on the systems and network infrastructure (its own and that of third-party suppliers) to gauge the overall performance of its hosting services and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Services.  Service Provider further reserves the right to monitor and reasonably restrict Client’s ability to use the Services if Client is using excessive computing resources which are impacting the performance of the Services for other subscribers.  Service Provider agrees to notify Client in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work-around solution.

2.2.            Client Backup Availability. Service Provider will provide a backup of Client’s Data upon Client’s request. Backup data will be sent to Client via electronic transfer and/or digital media. Client is responsible for any and all fees associated with providing the backup including, but not limited to, data transmission fees, media, and shipping. Client is limited to requesting backup data to once per year.

2.3.            Client agrees to make Client’s hardware and software available to Service Provider via a connected and properly operating internet connection, as well as physical access when requested by Service Provider. Client agrees to install and maintain for the duration of this Agreement a voice grade dial up telephone line connected to the DSN Software, Inc. system for use in data communication with Service Provider. Client shall be responsible for associated internet and telephone equipment line use and installation.

2.4.            Client’s Internet Connection.  Client acknowledges that Service Provider is not responsible for Client’s Internet connection and/or connectivity. Client is responsible for all problems arising from its own Internet connectivity.

2.5.            Program Customizations and Third-Party Software. Client acknowledges that Service Provider is not responsible for support and/or maintenance of (1) any customizations and/or modifications by Client or a third party of programs from their intended purposes, or (2) third-party software unless otherwise specifically identified herein.

3.       MAINTENANCE, SERVICES AND SUPPORT.

3.1.            Maintenance. Service Provider shall maintain the Services and provide solutions to the Services at no additional cost. Unless otherwise specified, the following services are excluded from this agreement:

3.1.1.         Program customization

3.1.2.         Hardware, memory chips, equipment and/or supplies

3.1.3.         Support for Service Provider software which has been modified without Service Provider approval

3.1.4.         Support upgrades for any third-party software, such as, but not limited to: operating systems, word processing software, accounting software, spreadsheet software, clinical or imaging software, system backup software, anti-virus software, any software or service that accesses a Service Provider software program without Service Provider’s permission, etc.

Maintenance does not include major releases of new versions of software, additional functionality, or custom software programming, which Service Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties.

3.2.            Services and Support.

3.2.1.         Services and support to be provided pursuant to the terms set forth in the executed Proposal attached as Exhibit A and incorporated herein by reference.

3.2.2.         Service Hours. Service hours are Monday through Friday, 5:00 a.m. (Pacific) to 5:00 p.m. (Pacific). Service is not available on the following days:

New Year’s Day           

Memorial Day

Independence Day

Labor Day      

Thanksgiving Day                       

Christmas Day

Friday following any Federal Holiday falling on a Thursday

Service requested by the Client other than during the hours of service as set forth above is subject to availability of personnel and shall be billed at Service Provider’s overtime service rate (time plus one-half).

 

3.2.3.         Interruption to Service.  Service Provider shall use commercially reasonable efforts to make the Services available at all times; however, Client acknowledges that Service Provider is not responsible for periods when the Services are unavailable, which includes, but is not limited to, the following: (a) during standard maintenance; (b) during scheduled system back-up or other on-going maintenance as required and scheduled in advance by Service Provider; (c) during emergency software, site and/or software updates and maintenance; (d) due to voluntary action or inaction on the part of Client or any third party; (e) due to Client’s equipment, software or other technology and/or third party equipment, software or other technology outside of Service Provider’s control; (f) due to any unforeseen cause beyond Service Provider’s reasonable control, including but not limited to Internet service provider or communications network failures, denial of service or similar attacks, or any force majeure events set forth in this Agreement; (g) due to Service Provider’s suspension and/or termination of Client’s right to use Services in accordance with this Agreement; or (h) due to Client failing to follow basic operational guidelines and/or security practices

4.       EFFECTIVE DATE, TERM AND TERMINATION.

4.1.            Effective Date.  The “Effective Date” of this Agreement, shall be determined based on the first location being installed. If the installation of the software occurs from the 1st-15th of the month, the effective date shall be the 1st of that month. Should the installation occur between the 16th-end of month than the effective date shall be the 1st of the month following the month of installation.

4.2.            Term.  Unless this Agreement is terminated earlier in accordance with the terms set forth in this Section, the initial term of the Services set forth in Exhibit A (the “Initial Term”) shall commence on the Effective Date and continue for One (1) Year, and continue month-to-month thereafter until Termination with written notice of non-renewal.  “Term” shall collectively mean and include the Initial Term and each monthly continuation, if any. Notice of intent to terminate the month-to-month agreement must be provided ninety (90) days in advance of the intended date of termination.

4.3.            Termination for Cause.  If either party materially breaches any of its duties or obligations hereunder, including two periods of successive failure of Client to make payments when due, and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, then the non-breaching party may terminate this Agreement for cause as of a date specified in such notice.

4.4.            Suspension of E-Services Package.  At any such time that Client may fail to provide payment more than fifteen (15) days beyond the due date as described in the Proposal and /or Section 5 herein, Service Provider may suspend any E-Services until the balance is brought current.

4.5.            Payments Upon Termination.  Upon the expiration or termination of this Agreement for any reason, Client shall pay to Service Provider all amounts due and payable hereunder, including, without limitation, those amounts set forth on Exhibit A, within ten (10) days of termination.

4.6.            Early Termination Fees. Except for termination of this Agreement due to Service Provider’s breach of this Agreement, in the event that this Agreement is terminated prior to the expiration of the Term, Client shall pay Service Provider, within ten (10) days after the date of such termination, (a) all accrued and unpaid fees for Services provided through the effective date of termination, plus (b) a cancellation fee equal to 100% of Client’s remaining Monthly Fees until the end of the current Initial Term. The parties agree that, if Services are cancelled prior to the completion of the Term, Service Provider’s damages shall be difficult or impossible to ascertain, and therefore the amounts set forth in this Section are intended to establish liquidated damages in the event of cancellation and are not intended as a penalty.

4.7.            Early Termination Database Conversion Service Fee.  Except for termination of this Agreement due to Service Provider’s breach of this Agreement, in the event that this Agreement is terminated prior to the expiration of the Term, and in the event that the Client received free or discounted Database Conversion services, Client shall pay Service Provider, within ten (10) days after the date of such termination, the difference in price between the discounted Database Conversion Services and the full price of DSN Software INC’s Database Conversion Services as listed on Exhibit A.

4.8.            Termination Assistance Services. Client agrees to hourly rates and other fees for Termination Assistance Services (as hereinafter defined). Service Provider will provide to Client, at Client’s sole cost and expense, assistance reasonably requested, to Client (such assistance shall be known as the “Termination Assistance Services”) during the thirty (30) calendar day period prior to, and/or following, the expiration or termination of this Agreement, in whole or in part (such period shall be known as the “Termination Assistance Period”).  If this Agreement has been terminated by Service Provider due to Client’s failure to pay any amounts due Service Provider, any and all expenses for Termination Assistant Services will be payable up-front by Client. The provisions of this Section shall survive for not longer than thirty (30) calendar days after the termination or expiration of this Agreement. Provided that Service Provider and Client agree as to price and scope of Service Provider’s provisioning of the Termination Assistance Services, such Termination Assistance Services may include:

4.8.1.         developing a plan for the orderly transition of Client Data from Service Provider to Client;

4.8.2.         using commercially reasonable efforts to assist Client and/or a Client designated partner, at Client’s sole cost and expense, in acquiring a copy of Client Data;

4.8.3.         such other activities upon which the parties may agree.

4.9.            HIPAA Compliance. Client acknowledges and agrees that Client shall be responsible for identifying and requesting all Client Data which Client needs to comply with Service Provider’s obligations to patients under HIPAA (as defined below) and that Service Provider’s sole obligation shall be to return Client Data in accordance with Section 4.9.  For purposes of this Agreement, “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and any regulations issued pursuant thereto.

5.       FEES AND EXPENSES.  Client shall be responsible for and shall pay to Service Provider the fees as described in Exhibit A, subject to the terms and conditions contained therein.  Any sum due Service Provider for Services performed for which payment is not otherwise specified shall be due and payable thirty (30) days after receipt by Client of: an (1) invoice from Service Provider or (2) execution of the attached Proposal (Exhibit A).

5.1.            Automatic Payment Processing.  Unless otherwise provided for under one or more Exhibits to this Agreement, Service Provider shall automatically charge Client for Monthly Fees and any other fees specified in Exhibit A to the specified Client’s credit card or bank account (“Credit Account”) provided by Client prior to Service Provider setting up Client’s service. Client agrees to promptly substitute another Credit Account if the then Credit Account becomes inactive, exceeds its credit limit, or otherwise fails to have sufficient funds to pay balances due.  By entering into this Agreement, Client hereby authorizes Service Provider to automatically charge the Credit Account during the term of this Agreement.  If, for any reason, an automatic payment is denied, Client shall pay the applicable fee, together with a $50.00 late fee, to Service Provider within five (5) days of notice from Service Provider.

5.2.            Credit Card.  Upon execution of this Agreement, Client shall deliver to Company a completed Authorization Agreement – Pre-Arranged Payments incorporated herein by this reference, establishing arrangements whereby payments equal to the fee for Monthly Support Payments are charged and initiated by The Service Provider from an account established by the Client. In the case of a Credit Card Transaction being rejected, Service Provider will assess an additional $50 charge.

5.3.            Pricing Changes.  After the Initial Term, Service Provider may make reasonable adjustments to the pricing set forth in this Agreement.

5.4.            Taxes.  The fees described in Exhibit A or otherwise chargeable under this Agreement do not include any sales, use or other taxes that may be applicable.  Client shall be responsible for the payment of any and all applicable sales, use or other taxes, other than taxes on the income of Service Provider which shall be the responsibility of Service Provider.

5.5.            Late Fees. Any balance due by Client to Service Provider which becomes past due by more than thirty (30) days shall incur a late fee of $50.00 per month for each month any portion of the balance remains unpaid.

 

6.       RIGHT TO USE, OWNERSHIP AND LICENSE IN SERVICES.

6.1.            Non-Exclusive Rights.  Service Provider grants Client a non-exclusive and non-sublicensable right to access and use the Services.  Client’s use of the Services is subject to the following:

6.1.1.         EULA.   In order to access the Subscription Services, Client will be required to click through and agree to certain on-line terms and conditions, which are in addition to the terms and conditions of the Agreement.

6.1.2.         Passive Conduit.   Service Provider acts as a passive conduit, and is not responsible, for the online distribution and publication of text, pictures, graphics, sound, video, and other data (“Content”) sent or received by Client pursuant to this Agreement.  Moreover, as a passive conduit, Service Provider merely transports information and does not access it other than on a random or infrequent basis as necessary to perform required Services under this Agreement, or as required by law.  If it comes to Service Provider’s attention that any Content may, in Service Provider’s sole discretion, create liability for any third party or Service Provider, Service Provider may take any action it deems reasonable or appropriate to protect Service Provider’s rights and interests.  Clients and Users are not permitted to transmit data on the Services that: (a) infringes on any third party’s intellectual property or proprietary rights, or rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation; (c) are defamatory, trade libelous, threatening, unlawfully harassing, indecent, abusive, obscene, or contain child pornography; (d) contain viruses or other similar harmful or deleterious programming routines; or (e) damage, disable, overburden or impair the Services or any other party’s use of the Services. In addition, Clients and their Users are not permitted to harvest email addresses through the Services.

6.1.3.         Authorized Use. Client agrees not to resell the Services or knowingly allow any unauthorized use by a third party.  Client agrees to notify Service Provider immediately if Client becomes aware of any unauthorized use of the Services provided under this Agreement. Service Provider may terminate the Services without notice if Client or its Users breach the Agreement.

6.1.4.         Statistics Gathering.  Client acknowledges and agrees that Service Provider may disclose statistics about its users’ usage in connection with Service Provider’s marketing activities, provided that Service Provider will only disclose such information in the aggregate.

6.1.5.         De-Identified Data.  Client acknowledges and agrees that Service Provider may from time to time anonymize one or more images or datasets from Client Data for providing support to the Client, product performance optimization and improvement, product testing, research, product development, product performance analysis, statistical analysis, and/or other commercial purposes, provided that such data has been de-identified in accordance with 45 CFR § 164.514(b)(2)(i) or any successor regulation (the “De-Identified Data”).  Client agrees that, notwithstanding Section 10.4, any De-Identified Data and its derivatives become property of Service Provider and are not subject to the Confidentially sections of this agreement.

6.2.            Electronic Claims Transmission Claim-Exec® (Claim-Exec) Agreement. This agreement establishes the terms and conditions for Client’s use of Service Provider’s electronic claims transmission services and associated materials and associated materials for the purpose of transmitting medical claims by electronic means. Client and Service Provider agree to:

6.2.1.         The monthly fee for transmission of Claims with Real-Time Eligibility (RTE) are based on volume and may be changed by DSN with 30 days written notice to participant. The following fees are in effect at this time: Monthly Claims will be automatically invoiced at $90 per month for claim volume less than 150 claims. Monthly Claims will be automatically invoiced at $135 per month for claim volume of 151 to 300 claims. Monthly Claims will be automatically invoiced at $175 per month for claim volume of 301 to 500 claims. Monthly Claims will be automatically invoiced at $215 per month for claim volume of 501 to 750 claims. Monthly Claims will be automatically invoiced at $260 per month for claim volume of 751 to 1000 claims. Monthly Claims will be automatically invoiced at $0.35/claim per month for claims volume 1,001 to 5,000. Monthly Claims will be automatically invoiced at $0.32/claim per month for claims volume 5,001+.

 

6.2.2.         Client’s use of Claim-Exec® is nonexclusive and is limited to the terms and conditions of this Agreement. Service Provider remains the owner of all rights to Claim-Exec®.  It is further agreed that Claim-Exec® is provided by Service Provider to Client to transmit certain medical insurance claims by electronic means.  Claim-Exec® may be used by Client on more than one of Client’s computers, provided that Service Provider has expressly approved such use and that fees are paid in accordance with the fee schedule.  Claim-Exec® is fully protected under the copyright laws of the United States.  Any use not expressly permitted under this Agreement is prohibited.  Such prohibition includes, but is not limited to, duplication or reproduction in whole or in part of the program or documentation without the express, prior written authorization of Service Provider.  Client shall not provide any software or associated materials provided to it by Service Provider to any other party.  Use by Client shall be exclusively for electronic transmission of certain medical insurance claims.  Service Provider remains the owner of all rights to all software and documentation provided by it to Client and retains ownership of all copies of such program and documentation, including copies provided with this Agreement or authorized to be made under this Agreement.  The software provided by Service Provider may not be modified, adapted, translated, decompiled, disassembled, reverse engineered or used in any form to create new or revised programs based on or derived from such Service Provider program, without the express prior written consent of Service Provider.

 

6.2.3.         Enhancement. From time to time, Service Provider may distribute enhancements to its services.  Client agrees to install such enhancements immediately.  Failure to install enhancements/maintenance releases immediately shall relieve Service Provider of its obligations to Client under this Agreement.

 

6.2.4.         All documents and information relating to the Claim-Exec®, including but not limited to services, software, programs(s), guides and message standards (if applicable) constitute trade secrets of Service Provider, and may be disclosed only to Client’s officers, employees, and agents with a specific need to know.  Client agrees to be responsible for any disclosure in violation of this rule by any officer, employee, or agent, whether or not such disclosure was authorized by Client.  In no event shall any of Service Provider’s trade secrets be disclosed by Client to any third party.  The provisions of this section shall survive termination of this Agreement and Service Provider shall be entitled to equitable protections, as well as damages at law for its violation.  Service Provider may disclose total systems statistics which are generic to the system.

 

6.2.5.         Termination. Upon termination of this Agreement, Client will have no further right to Claim-Exec® and Client will immediately surrender to Service Provider all confidential materials and documentation.  Regardless of the manner or timing of termination, Client shall remain liable for all fees and charges associated with transactions that were incurred as of the effective date of such termination and as to which Client was a party.

 

6.2.6.         Limitation of Service Provider Obligations and Liabilities.  The services provided to Client are intended to be used for the electronic transmission of certain medical insurance claims.  The services and technology for Claim-Exec® and associated products and services is new and may be imperfect.  Except in the case of intentional harm or fraudulent misconduct, Service Provider is not responsible for losses arising from use or attempted use of Claim-Exec®, including but not limited to loss or failure to transmit claims, delay in transmission, incomplete, duplicate or inaccurate transmission of claims, as well as loss or alteration of data. Client assumes the risk of loss arising out of Client’s use of Claim-Exec® and Client has the responsibility to maintain such records as are necessary to document all claims in the event retransmission or non-electronic delivery of such claims is necessary due to partial or total failure of Claim-Exec® to effectuate accurate electronic transmission of Client’s insurance and/or other third-party. In addition to all other limitations set forth in this agreement, Service Provider shall not be liable to Client for damages in an amount greater than the sum of the fees actually paid by Client to Service Provider pursuant to this agreement.

7.       REPRESENTATIONS AND WARRANTIES.

7.1.            Mutual Representations and Warranties.  Each of Client and Service Provider represent and warrant that:

7.1.1.         it is a business duly formed, validly existing, and in good standing under the laws of its state of formation;

7.1.2.         it has all requisite power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;

7.1.3.         this Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms;

7.1.4.         the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights generally and by general equitable principles;

7.1.5.         it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement; and,

7.1.6.         there is no outstanding litigation, arbitration or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.

7.2.            By Service Provider.  Service Provider represents and warrants that:

7.2.1.         the Services shall be performed in a professional and workmanlike manner.

7.2.2.         Service Provider shall not knowingly infringe upon any United States copyright or United States patent of any third party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement.

7.2.3.         THE WARRANTIES CONTAINED IN THIS SECTION “BY SERVICE PROVIDER” MADE BY SERVICE PROVIDER ARE ITS ONLY WARRANTY AND SERVICE PROVIDER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THOSE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL OPERATE AT ALL TIMES UNINTERRUPTED OR ERROR-FREE. WHERE THIS AGREEMENT SPECIFIES A REMEDY FOR SERVICE PROVIDER’S FAILURE TO PERFORM, THAT WILL BE CLIENT’S EXCLUSIVE REMEDY.  ANY LIMITATIONS ON SERVICE PROVIDER’S LIABILITY STATED IN THIS AGREEMENT SHALL APPLY.  IN NO CASE WILL SERVICE PROVIDER BE LIABLE TO CLIENT FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.  SERVICE PROVIDER SHALL HAVE NO LIABILITY IN TORT FOR STRICT LIABILITY OR NEGLIGENCE.

8.       NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.  The parties acknowledge that each party may be exposed to or acquire communications or data of the other party that is confidential and not intended to be disclosed to third parties.

8.1.            Meaning of Confidential Information.  For the purposes of this Agreement, the term “Confidential Information” shall mean Client Data and all information and documentation of a party that such disclosing party designates as proprietary or confidential in writing at the time of disclosure by such entity.  The term “Confidential Information” does not include De-Identified Data and does not include any information or documentation that was: (a) already in the possession of the receiving entity without an obligation of confidentiality; (b) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (c) obtained from a source other than the disclosing entity without an obligation of confidentiality; or (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).

8.2.            Obligation of Confidentiality.  The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or third party contractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement.  The parties agree to advise and require their respective employees, agents, and third-party contractors of their obligations to keep such information confidential.

8.3.            Cooperation to Prevent Disclosure of Confidential Information. Each party shall use reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

8.4.            Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligations of confidentiality may give rise to irreparable injury to the other party, which injury may be inadequately compensable in the form of monetary damages.  Accordingly, each party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, the immediate termination of this Agreement.

8.5.            Survival.  The provisions of this Section “Non-Disclosure of Confidential Information” shall survive for a period of three (3) years following the termination or expiration of this Agreement; provided, however, that the confidentiality obligations with respect to Protected Health Information (as defined in HIPAA) shall survive indefinitely.

9.       IDENTITY THEFT.   In the performance of this Agreement, Service Provider may have possession of or access to documents, records or items that contain Social Security numbers, driver license or state identification card numbers, passport numbers or other United States issued identification numbers, or financial account numbers, credit or debit card numbers, in combination with any required security code, access code or password that would permit access to a consumers financial account (“Personal Information”).  Personal Information is a type of Confidential Information that is highly sensitive and subject to additional protection.  Therefore, prior to the receipt of, and during the period in which Service Provider has possession of or access to, any Personal Information, Service Provider shall have in place, a formal information security program that provides safeguards to protect Personal Information from loss, theft, and disclosure to unauthorized persons.

9.1.            Access to Personal Information.   Service Provider shall not breach or permit breach of the security of any Personal Information that is contained in any document, record, compilation of information or other item to which Service Provider receives access, possession, custody, or control under this Agreement.  Service Provider shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information.  Service Provider shall not use, distribute, or dispose of any Personal Information other than expressly permitted by the Client, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

9.2.            Reporting.   Service Provider shall report to the Client, as promptly as possible, any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which the Service Provider receives access, possession, custody or control in the performance of this Agreement.

9.3.            Client’s Responsibility.  Service Provider shall not be held liable or responsible for any breach of security, use, disclosure, theft, loss, or other unauthorized access of Personal Information due to any dissemination, disclosure, breach of security, malicious act, weak password security, data mining or any other action resulting directly or indirectly from Client or Client’s Users. 

 

10.    PROPRIETARY RIGHTS.

10.1.        Title and Ownership. Client acknowledges that all right, title, and interest in and to the Services and all software used to provide the Services, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Service Provider IP”), is, and at all times shall remain, the sole and exclusive property of Service Provider.  The Service Provider IP contains trade secrets and proprietary information owned by Service Provider that is protected by United States and foreign laws relating to intellectual property. Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or any software used to provide the Services.

10.2.        Restricted Access. Client shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or any software used to provide the Services in any form or media or by any means.

10.3.        Pre-existing Materials.  Client acknowledges that, in the course of performing the Services, Service Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider (collectively, the “Pre-existing Materials”) and that same shall remain the sole and exclusive property of Service Provider.

10.4.        No License.  Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information, Pre-existing Materials, or Client Data.  Nothing in this Agreement shall be construed to grant to either party any ownership or other interest in the Confidential Information, Pre-existing Materials, or Client Data, except as may be provided under a license specifically applicable to such Confidential Information, Pre-existing Materials, or Client Data.

10.5.        Survival. The provisions of this section shall survive termination of this Agreement.

 

11.    INDEMNIFICATION.

11.1.        General Indemnity.  Each party agrees to indemnify, defend, and hold the other and its officers, directors, agents, sub-contractors and employees (each, an “Indemnitee” and collectively, the “Indemnitees”) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (collectively “Claims”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any negligent act or omission of the indemnifying party, its officers, directors, agents and employees during the Term of this Agreement, including, without limitation, Claims arising out of or relating to bodily injury (including death) or damage to tangible personal or real property.

11.2.        Promptly after receipt by the Indemnitee of a threat of any action, or a notice of the commencement, or filing of any action against the Indemnitee, the Indemnitee shall give notice thereof to the other, provided that failure to give or delay in giving such notice shall not relieve the indemnifying party of any liability it may have to the Indemnitee except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced thereby.   

 

12.    LIMITATION OF LIABILITY.  NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.  SERVICE PROVIDER SHALL BE LIABLE FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF SERVICE PROVIDER, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT.  THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.

 

13.    GENERAL.

13.1.        Relationship between Client and Service Provider.  Service Provider is an independent contractor with no authority to contract for Client or in any way to bind or to commit Client to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Client.  Under no circumstances shall Service Provider, or any of its staff, hold itself out as or be considered an agent employee, joint venture, or partner of Client.  In recognition of Service Provider’s status as an independent contractor, Client shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Service Provider or Service Provider’s agents or staff.  Client shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship.  Neither Service Provider nor its staff shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Client.

13.2.      Subcontracting and Assignments. This Agreement may not be assigned or otherwise transferred in whole or in part by Client without the prior express written consent of Service Provider.

13.3.        Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Oklahoma and the federal laws of the United States of America.  The parties expressly stipulate that all litigation under this Agreement shall be brought in the State courts of the County of Tulsa, Oklahoma, or the United States District Court for the Northern District of Oklahoma, and for the purpose of any such suit irrevocably submit and consent to the personal and subject matter jurisdiction and venue of any such court. Client will not seek to change venue on the basis of forum non-conveniens or any other legal or equitable basis. Depending on the residency of Client, the provisions of this agreement may eliminate rights and protections otherwise available to the licensee under the laws of the Client’s residence, including but not limited to Uniform Commercial Code provisions affording Client greater warranty rights and limiting the waiver of warranties. By signing this agreement, Client acknowledges that it has waived the right to have this agreement governed by any law other than that of the State of Oklahoma. Service Provider and Client acknowledge and agree that the compensation paid to Service Provider by Client has been negotiated in part in consideration of the terms and conditions of this paragraph, assuring service provider that all claims arising out of this agreement shall be governed by the law of the State of Oklahoma and that the venue for such claims shall be in a court of competent jurisdiction in Tulsa County, Oklahoma.

13.4.        Force Majeure.  Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control.  Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, and problems with telecommunications providers to the extent not occasioned by the fault or negligence of the delayed party.  Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party.  However, the delayed party shall use commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control.  The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance. 

13.5.        No Waiver.  The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

13.6.        Notices.  Any reference to notice within this agreement and any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid or by nationally recognized overnight carrier (e.g., FedEx or UPS) to the “Address For Notice” appearing at the end of this Agreement, or as changed through written notice to the other party.  Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee, and notice dispatched by nationally recognized overnight carrier shall be deemed effective on the next business day following its placement with such carrier addressed to addressee.

13.7.        Counterparts; Facsimile.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.  The parties agree that a facsimile signature or signature delivered by other electronic delivery (e.g., portable document format (PDF) file) may substitute for and have the same legal effect as the original signature.

13.8.        Entire Agreement.  This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Client and Service Provider as to the subject matter hereof.  This Agreement may only be amended by an instrument in writing signed by the parties.

13.9.        Headings.  The headings used herein are for organizational purposes only and do not constitute a part of this Agreement.

13.10.     Transferability.   The rights and obligations of either party shall not be transferable without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that Service Provider may transfer this Agreement in connection with a merger, sale or other disposition of substantially all the equity interests or assets of Service Provider’s business to which this Agreement specifically relates.  With the prior written consent of Service Provider, which consent shall not be unreasonably withheld, Client may transfer this Agreement in connection with a merger, sale or other disposition of substantially all the equity interests or assets of Client’s business to which this Agreement specifically relates.  All obligations of the parties herein shall be binding upon their respective successors or assigns.

13.11.     Severability.   In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, except in those instances where removal or elimination of such invalid, illegal, or unenforceable provision or provisions would result in a failure of consideration under this Agreement, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein.