Terms of Service
Last Updated: March 27, 2022
This Master SaaS and Services Agreement (this “Agreement”) is entered into by and between Avon Health, a Delaware corporation (“Company”) with a place of business at New York and the Customer (“Customer”). Company and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”
WHEREAS, Customer desires to obtain access to the Services with respect to certain of its information technology needs; and Company wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.
WHEREAS, The Customer is granted a license to use the Software, subject to a set of limitations and restrictions.
WHEREAS, The Company undertakes to provide high-performance Software while committing to comply with certain requirements relating to the maintenance of the Software.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Purpose. This Agreement sets forth the terms and conditions under which Company agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a “Platform”) to Users, and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and each Platform, as further set forth on each statement of services (“Statement of Work”) issued hereunder.
1.2 The Services. Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Company shall use commercially reasonable efforts to provide (i) Customer and Users access to each Platform, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, Company hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, nontransferable, worldwide license to access and use each Platform, solely for business purposes as set forth herein.
1.3 Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, subscription term and other applicable terms and conditions.
1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.5 Changes to Platform. Company may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Company’s products or services to its customers, (b) the competitive strength of, or market for, Company’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. PLATFORM ACCESS
2.1 Administrative Users. During the configuration and set-up process for each Platform, Customer will identify an administrative user name and password for Customer’s account. Company reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
2.2 Patient Users. Customer may allow or direct an unlimited number of Customer’s patients to use the applicable Platform on behalf of Customer as “Patient Users.” Each Patient User must agree to consent terms that give the relevant Provider User and Administrative User organization access to review the results of the Patient User as part of the sign up process.
2.3 Provider Users. Customer may allow an unlimited number of Customer’s providers to use the applicable Platform on behalf of Customer as “Provider Users.”
2.5 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Company account, passwords (including but not limited to administrative and user passwords) and files. Company is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Company, and Customer will comply with Section 4 with respect thereto.
3.3 Cooperation. Both parties (Customer and Company) shall mutually provide reasonable cooperation and assistance as needed to enable each company to exercise their rights and perform their obligations under, and in connection with, this Agreement.
4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Company includes non-public information regarding features, functionality and performance of each Platform and Software. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for Customer (“Customer Data”). The terms and conditions of this Agreement, including all pricing and related metrics, are Company’s Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
5. PROPRIETARY RIGHTS
5.1 Ownership. Customer shall own all right, title and interest in and to the Customer Data. Customer shall also own all right, title, and interest in any IP created on Platform by Customer. Company shall otherwise own and retain all right, title and interest in and to (i) each of the Platform, Software and the Services and all improvements, enhancements or modifications thereto, including any and all improvements, enhancements or modifications based upon suggestions, proposals or other input from Customer (“Services IP”).
5.2 Customer Data. Customer hereby grants to Company a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use Customer Data (i) to provide the Services to Customer hereunder and (ii) to monitor and improve a Platform, Software and the Services during the Term, provided that prior to any use under subsection (ii), such data must be anonymized, deidentified, and aggregated in accordance with applicable law such that deanonymization, reidentification, or disaggregation are not knowingly possible, and any identifiers that might allow a third party to infer Customer’s identity must be permanently removed such that identification is not knowingly possible. Customers or Patients may request for Customer Data to be deleted. Company will comply with requests as long as doing so does not conflict with any legal, regulatory, or contractual data retention requirements applicable to the Company. For the avoidance of doubt, and at all times subject to this Agreement, Company may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, deidentified, or otherwise rendered not knowingly associated or linked to Customer or any other identifiable individual person or entity in accordance with applicable law for product improvement and other lawful purposes, all of which information, so long as all data utilized by Company is de-identified in a HIPAA-compliant manner. It is Customer’s sole responsibility to back-up Customer Data during the Term.
5.3 PHI. Company and Customer acknowledge that Customer Data may contain PHI. Upon either party’s request, the Parties will execute a Business Associate Agreement in the form and format attached hereto as Exhibit A.
5.4 No Other Rights. No rights or licenses are granted except as expressly set forth herein.
6. FEES AND PAYMENT
6.1 Fees. Customer will pay Company the then-applicable fees described in a Statement of Work, as applicable, in accordance with the terms set forth therein (“Fees”).
6.2 Payment. Company may choose to bill through an invoice, in which case, full payment for undisputed amounts due in any given month must be received by Company thirty (30) days after receipt of the invoice (unless otherwise specified on the applicable Order Form). In addition to any other remedies available, Company may suspend Services in the event of payment delinquency.
6.3 Payment Disputes. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department or the applicable Account Manager.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until the earlier of its termination as provided below or one year after the “Services Effective Date” (the “Term”). The term of each Statement of Services shall begin on the applicable “Services Effective Date” and continue for the “Service Term,” in each case as specified in such Statement of Services.
7.2 Termination. Company may terminate this Agreement upon written notice to Customer if no Statement of Services is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party. Notwithstanding the foregoing, Customer may terminate this Agreement at any time (i) for convenience upon fifteen (15) days’ email notice to Company.
7.3 Effect of Termination. Upon termination of the Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and Company shall immediately cease providing the Professional Services. If (i) Company terminates this Agreement pursuant to the second sentence of Section 7.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.
7.4 Survival. Sections 3.1, 3.3, 4–6, 7.2, 7.4, and 9–17 and such other sections as should, by their terms, reasonably survive shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, Company DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES Company MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, Company MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN Company AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND Company DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.1 Indemnification by Company. Company will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, or alleging breach of a Business Associate Agreement entered into by the parties in connection with this Agreement, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. Except with respect to any claims regarding Company’s performance of its obligations under a relevant Business Associate Agreement, the foregoing obligations do not apply with respect to portions or components of any Platform or Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, a Platform is held by a court of competent jurisdiction to be or is believed by Company to be infringing, Company may, at its option and expense (a) replace or modify such Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using such Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Platform. This Section states Customer’s sole and exclusive remedies for claims of infringement.
10. LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF OBLIGATIONS SET FORTH IN A BUSINESS ASSOCIATE AGREEMENT BETWEEN THE PARTIES, IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 Governing Law This Agreement is governed in all respects by the laws of the State of Delaware, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement.
Company may, from time to time, host and/or maintain a Platform using a third party technology service provider and Customer acknowledges that Company cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
Customer agrees that Company may identify Customer as a customer and use Customer’s logo and trademark in Company’s promotional materials subject to receiving Customer’s prior written approval in each instance. Notwithstanding anything herein to the contrary, both Parties (Customer and Company) acknowledge that the other may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties as necessary for purposes of due diligence.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
15. FORCE MAJEURE
Company is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to changes to law or regulations, embargoes, war, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Company may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement.
17. GENERAL PROVISIONS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.