IMPACT APPLICATIONS, INC.™ SERVICES AGREEMENT Academic Institution/School/Team/Club
Important - Read Carefully. Notice to User:
This Services Agreement ("Agreement") is a legal document between you or your organization (“Customer”) and ImPACT Applications, Inc. ("ImPACT Applications"). It is important that you read this document before using the Products (as such term is defined herein) and updates and upgrades thereto and any accompanying documentation, including, without limitation printed materials, 'online' files, or electronic documentation. The terms and conditions of this Agreement shall govern and control the use of any and all of the Products.
By checking the box next to “I have read and accept the Services Agreement” below, or by installing, or otherwise using the Products, you agree to be bound by the terms of this Agreement including, without limitation, the warranty disclaimers, limitation of liability, data usage, and termination provisions below, whether or not you decide to purchase the Products. You agree this Agreement is enforceable like any written agreement negotiated and signed by you or your organization. If you do not agree with the terms and conditions of this Agreement, you should not use the Products and you shall have no right to install, use or otherwise benefit from the Products. By entering into this Agreement, you hereby represent and warrant to ImPACT Applications and its affiliates that you are a duly authorized representative of your organization and that by checking the box next to “I have read and accept the Services Agreement” below you are acting within your authority and creating a legally binding agreement between you or your organization and ImPACT Applications.
By checking the box next to “I have read and accept the Services Agreement” below you certify that either (A) your organization is a medical provider, institution of education, sports team or similar organization or (B) you are a licensed healthcare provider in your state, country, province, or territory and you are permitted to use the Products under applicable rules, regulations, and laws. You acknowledge and agree only such organizations and licensed healthcare providers are permitted to license and use the Products and that any license to the Products is expressly conditioned upon you or your organization maintaining such status throughout the term of the Agreement as further described below.
1. DEFINITIONS As used in this Agreement, the following terms shall have the respective meanings assigned to them below:
“Customer Materials” means all materials and content, such as logos and Customer’s standard operating procedures, if any, provided to ImPACT Applications by Customer for incorporation into the Product.
“Customer Promotional Materials” means the promotional materials related to the Product that are created or developed by Customer.
“Customer Site” means a web site owned or controlled by Customer through which Customer and End Users access the Product.
“Configurations” means standard set-up and activation services for the Product.
“Documentation” means user documentation for the Product available at ImPACT Applications’ web site or sent to the
Customer in print, as such documentation may be amended by ImPACT Applications from time to time.
“End User” means people other than Customer who are allowed by Customer or a Customer sublicensee to access the Product via the ImPACT Applications Site or a Customer Site.
“ImPACT Applications Site” means one or more web sites owned or controlled by ImPACT Applications or an affiliate of ImPACT Applications through which Customer or End Users may obtain access to the Product.
“ImPACT Applications Promotional Materials” means the promotional materials related to the Product that are created or developed by ImPACT Applications.
“Normal Business Hours” means 7:00 a.m. CST to 7:00 p.m., CST, Monday through Friday, but excluding all holidays observed by ImPACT Applications.
“Person” or “person” means any corporation, partnership, limited liability company, joint venture, other entity, or natural person.
“Product” means the ImPACT Applications products and services available from time-to-time on or through the ImPACT Applications Site, as such Products are described in greater detail in the Documentation, together with any Updates thereto.
“Product Infrastructure” means the hardware, software, and other equipment that ImPACT Applications uses in connection with its hosting of the Product for Customer hereunder.
“Quality Standards” means the quality levels that ImPACT Applications maintains in connection with the ImPACT Applications Marks (as identified on Schedule B hereto).
“Territory” means the United States.
“Update” means any update, upgrade, or new release for the Product that ImPACT Applications may make available to Customer from time to time hereunder.
2. PRODUCT ACCESS; RESTRICTIONS; RESALE PROVISIONS; EXTENSION OF AGREEMENT TO SUBSEQUENT PRODUCTS; SUBLICENSES
2.1 Limited License. Subject to Customer’s compliance with
the terms and conditions of this Agreement, ImPACT Applications hereby grants to Customer, during the Term, a non-exclusive, non-transferable (except as expressly permitted hereunder), license: to access the Product, to use the Product in the Territory, and to authorize End Users to access and use the Product, via the ImPACT Applications Site or a Customer Site.
2.2 Sublicenses. Customer may grant sublicenses to any of its constituent schools, any scholastic sports team, or club that consists of End Users, or any other organization whose membership consists of End Users. Any sublicenses granted by Customer under the terms of this Agreement shall be subject to the same terms and conditions set forth in this Agreement, and Customer shall obtain written assurances from each sublicensee that such sublicensee agrees to be bound by the terms and conditions set forth in this Agreement. No sublicensee shall be authorized to grant any further sublicenses. Customer shall notify ImPACT Applications of any sublicense granted by Customer relating to this Agreement within thirty (30) calendar days thereafter. ImPACT Applications reserves the right to terminate any sublicense upon cause shown and reasonable notice to Customer (no less than 10 business days).
2.4 Configurations. ImPACT Applications shall prepare and incorporate Configurations in order to enable access to the Product. ImPACT Applications and its licensors own and shall continue to own all right, title, and interest in and to the Product and such Configurations after any Configurations are
incorporated therein; provided however that Customer or its licensors shall own and continue to own all right, title, and interest in and to the Customer Materials. Customer hereby grants to ImPACT Applications a royalty-free license to prepare the Configurations and to incorporate said Configurations into the Product as permitted hereunder.
2.5 Proprietary Notices. Customer shall not remove any trademark, copyright, or patent notices, any proprietary or restricted rights notices, or any other proprietary notices or disclaimers that appear in the Product, or in any of the Documentation. Unless otherwise agreed to in writing by ImPACT Applications, Customer shall state on its website, on all Products, and on or in all Promotional Materials and otherwise that: (i) the ImPACT Applications Marks are “licensed from ImPACT APPLICATIONS, INC.”; (ii) the Products are “licensed from ImPACT APPLICATIONS, INC.”; and (iii) the Products are subject to copyright, as the case may be.
2.6 Other License Restrictions. Customer shall not make any representations, warranties, conditions, or guarantees with regard to the Product that are inconsistent with or in addition to those made by ImPACT Applications to Customer hereunder. In addition, except as expressly authorized herein, Customer shall not authorize End User to: (i) copy or modify the Product for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble, or discover the source code for all or any portion of the Product; or (iii) distribute, disclose, market, rent, lease, or otherwise transfer the Product or Documentation to any other person, except as set forth in Section 2.1 hereto.
2.7 Reservation of Rights. Except for the licenses and rights expressly granted under this Agreement, no licenses or rights are granted by either party to the other party hereunder, by implication, estoppel, or otherwise. All such other licenses and rights are reserved unto ImPACT Applications or Customer, as applicable. ImPACT Applications expressly reserves the right, in its sole discretion and in the Territory and throughout the world, to: (i) sell or license the Product directly to any third party; (ii) use the ImPACT Applications Marks for the purpose of promoting, advertising, or marketing the Product; and (iii) grant promotional, advertising, and/or marketing rights to other persons.
2.8 Product Representations. Customer shall make no, and shall indemnify ImPACT Applications for and against any and all claims arising out of, representations or warranties concerning quality, performance, or other characteristics of the Products other than those which are consistent in all respects with, and do not expand the scope of, the representations and warranties made by ImPACT Applications for such Products. Customer may not write or otherwise create any additional Product Documentation or authorize the creation thereof without ImPACT Applications’ express prior written consent. The only Product Documentation that Customer is authorized to sell or distribute is official ImPACT Applications Product Documentation that shall have been produced by ImPACT
Applications. Customer agrees that its obligation to indemnify ImPACT Applications for and against any and all claims arising out of any warranty that is inconsistent with or additional to the warranties contained in this Agreement shall not be affected, reduced, or impaired by the fact that Customer is required by local mandatory law to provide such inconsistent or additional warranty.
2.9 Ownership of Customer Data. The ImPACT Applications system will aggregate and generate data relating to End Users that will relate to medical information such as age, height, weight, prior injuries, and test results from using the Product and such other information as ImPACT Applications may determine from time-to-time would be useful in improving the performance of the Product (the “Customer Data”). Customer is the sole exclusive owner of the Customer Data. Customer will have access to the Customer Data at all times during the Term of the Agreement. ImPACT Applications shall be permitted to use aggregated, de-identified Customer Data, for internal and external evaluation purposes provided that such information does not identify an individual and there is no reasonable basis to believe that the information can be used to identify an individual. Any use of Customer Data by ImPACT Applications shall comply with all applicable U.S. rules, laws, and regulations regarding data protection and privacy.
2.10 Government Approvals. Customer shall, at its expense, obtain all registrations, licenses, and permits required to perform its obligations, pay all taxes and fees due in connection therewith, and provide ImPACT Applications with such documentation as ImPACT Applications may request to confirm Customer’s compliance with this Section 2.10 and agrees that it shall not engage in any course of conduct that, in ImPACT Applications’ reasonable belief, would cause ImPACT Applications to be in violation of the laws of any jurisdiction.
2.11 Material Breach. Any breach of any of the provisions of this Section 2 by either party shall be deemed a material breach of this Agreement.
2.12 Applicability of Agreement to All ImPACT Applications Products and Pricing Changes. Customer acknowledges ImPACT Applications may offer additional Products during the term of this Agreement (each a “Subsequent Product” and collectively, the “Subsequent Products”). Customer and ImPACT Applications acknowledge and agree Subsequent Products may be licensed by Customer, subject to all terms and conditions of this Agreement, upon mutual written consent of the parties. Except as otherwise set forth in this Section 2.12 and Section 5.3, ImPACT Applications may also amend Schedule A without a written modification of this Agreement, provided that any modifications to Schedule A are provided to Customer in a manner consistent with this section. Upon communication to customer of revisions to Schedule A, said revisions shall merge into and fully become part of this Agreement without need for a
separate acceptance or novation.
2.13 Conditions of Use – ImPACT Applications Marks. In order to carry out the rights granted in Section 2 hereto, Customer is authorized to: (i) use the ImPACT Applications Marks in such style, appearance, and manner as ImPACT Applications shall, in its sole discretion, specify or approve in writing and solely on or in connection with the Product or Promotional Materials and in strict accordance with all of the applicable Quality Standards; and (ii) create or develop Customer Promotional Materials; provided, however, that Promotional Materials may only be used in connection with the Product pursuant to this Agreement. ImPACT Applications shall retain all right, title, and interest in and to (including copyrights and trademarks) the ImPACT Applications Marks and ImPACT Applications Promotional Materials, and Customer grants to ImPACT Applications all right, title, and interest in and to any Customer Promotional Materials solely related to the Product. Customer is expressly prohibited from modifying the ImPACT Applications Marks or ImPACT Applications Promotional Materials unless expressly agreed to in writing and such modifications are expressly approved in writing by ImPACT Applications. Customer will not use the ImPACT Applications Marks in conjunction or association with any other trademark, trade name, or logo, or place the ImPACT Applications Marks in close proximity to any other name, mark, or logo other than the name, trademarks, and related designs of Customer without the express prior written approval of ImPACT Applications, provided that such placement is carefully done so as to avoid any potential for confusion as to the source of the Product or Promotional Materials and to clearly distinguish same as originating from ImPACT Applications. Customer will comply as soon as reasonably practicable (but in any event within twenty (20) days) with all reasonable instructions furnished by ImPACT Applications from time-to-time with respect to the style, appearance, and manner of use of the ImPACT Applications Marks on the Product or Promotional Materials, including instructions to revise the style, appearance, or manner of use as ImPACT Applications may specify from time to time. Whenever the ImPACT Applications Marks are used on or in connection with the Product or Promotional Materials, Customer shall use the trademark symbol “™” or the registration symbol “®”, as appropriate. Customer shall display all other notices on or in connection with the Product or Promotional Materials and otherwise, as are or may be required by any applicable laws and regulations. ImPACT Applications is authorized to list Customer in or on ImPACT Applications Promotional Materials, including on ImPACT Applications’ Web site, as a licensed provider of services employing the Product. An ImPACT Applications Mark usage guide is attached to this Agreement at Schedule B.
3. PRODUCT INFRASTRUCTURE
3.1 Obligations of ImPACT Applications. Subject to Customer’s compliance with the terms and conditions of this Agreement, ImPACT Applications shall be responsible for providing and maintaining the Product Infrastructure. The Product
Infrastructure is subject to modification by ImPACT Applications from time to time for purposes such as adding new functionality, maximizing operating efficiency, and upgrading hardware and software. Customer understands and acknowledges such modifications may require changes to Customer’s Internet access and telecommunications infrastructure to maintain Customer’s desired level of performance. ImPACT Applications will provide industry standard web hosting and connectivity and use reasonable efforts to provide Customer 99.99% up time operation; provided, however, Customer acknowledges and agrees that downtime may occur for systems maintenance, including without limitation diagnostics, upgrades, and operations reconfiguration and that unscheduled downtime may occur as a result of forces beyond the immediate control of ImPACT Applications including, but not limited to, hardware failures, electrical outages, or failures or outages caused by Customer's network or internet service provider.
3.2 Obligations of Customer; Internet Access and Telecommunications Services. Except for the Product Infrastructure, which will be provided by ImPACT Applications, Customer shall be responsible for obtaining and maintaining all hardware, software, equipment, and other items required in connection with Customer’s access to and use of the Product as contemplated hereunder, including, without limitation, all hardware, software, equipment, and other items required to develop and maintain the Customer Site functionality necessary to facilitate access to the Product. Customer at its expense shall be responsible for obtaining Internet access and/or telecommunications services, or upgrading Customer’s existing Internet access or telecommunications services, to allow access to the Product by Customer and End Users. ImPACT Applications shall not be responsible for interruptions in Customer’s use of the Product caused by such providers or interruptions in the service provided by such providers.
4. TEST ACCESSIBILITY; SERVICE; REPORTS; USER’S GUIDE; UPDATES
4.1 Test Accessibility; Service. A description of how to access the Products, ImPACT Applications technical support, and report generation is set forth on Schedule A.
4.2 Updates. ImPACT Applications shall provide all Updates to Customer as they are released generally by ImPACT Applications to all of its customers. Any and all Updates offered by ImPACT Applications to its customers during the term shall be provided to Customer free of charge.
5. FEES AND PAYMENTS; TAXES; LATE PAYMENTS
5.1 Product Fees - License. In consideration of the license rights and services provided by ImPACT Applications hereunder, Customer will pay ImPACT Applications the applicable Product Fees within forty five (45) calendar days of receipt of an
invoice. Current fees for the Products are set forth on Schedule A (the “Product Fees”). Customer shall be responsible for collecting Product Fees from its sublicensees and shall remit the same to ImPACT Applications according to the terms set forth in this Section 5. ImPACT Applications shall electronically invoice Customer for all Product Fees due hereunder and it is Customer’s sole responsibility to update ImPACT Applications regarding any changes in Customer’s electronic contact information. All Product Fees due to ImPACT Applications shall be paid by Customer in full without right of set-off or deduction, in advance of Customer’s access to, and use of, the Products.. Notwithstanding any provision to the contrary, Customer may withhold payment of any amount as to which there is a bona fide dispute as to whether such amount is due and/or owing. Any disputed amounts withheld by Customer are not subject finance charges or penalties. ImPACT Applications will not exercise its rights under this Section if Customer is disputing applicable fees reasonably and in good faith and is cooperating with ImPACT Applications to diligently resolve the dispute. In the event all undisputed amounts due to ImPACT Applications are not paid when due, ImPACT Applications shall have the right, in its sole and absolute discretion, to suspend Customer’s access to the Product until payment is remitted, subject to ImPACT Applications’ compliance with all applicable U.S. federal, state, and local rules, laws, and regulations regarding data protection, data retention, and data privacy of Customer Data, including but not limited to HIPAA (defined below). Failure to pay Product Fees as set forth above shall constitute a material breach of this Agreement and shall subject Customer to termination of this Agreement in accordance with Section 8 herein.
5.2 Product Fees. The Product Fees shall apply only to Products and not to any other goods or services ImPACT Applications may offer, including without limitation separate modules, professional services, or third party products offered by ImPACT Applications from time to time, all of which ImPACT Applications may, in its sole discretion, separately offer and price. ImPACT Applications may offer special promotions or discounts on Products from time to time and as a result, may amend pricing of the Products upon thirty (30) days prior written notice to Customer. Purchases of ImPACT and ImPACT Baseline testing do not expire and are available for use during the Term, subject to the terms of this Agreement.
5.3 Fee Increases. After the Initial Term, ImPACT Applications may, upon sixty (60) days prior written notice to Customer, increase the Product Fees charged to Customer hereunder.
5.4 Taxes. To the extent applicable, Customer shall be responsible for paying all sales, use, value-added, and other similar taxes in connection with the Product and services provided hereunder, except for taxes assessed, levied, or imposed based upon ImPACT Applications’ property or income. ImPACT Applications may elect to include said taxes, duties, and charges as separately itemized charges in its invoices to Customer hereunder.
5.5 Late Payments. In the event any undisputed amounts due to ImPACT Applications hereunder are not paid when due, ImPACT Applications shall have the right, in its sole and absolute discretion, to: (i) immediately terminate this Agreement by delivering written notice thereof to Customer; (ii) immediately suspend Customer’s and any of its sublicensees’ access to the Product; and (iii) charge Customer interest on such late payment, which shall accrue interest from the first day following the due date until paid in full at the lesser of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law.
6. WARRANTIES AND LIMITATIONS OF LIABILITY
6.1 Warranty. ImPACT Applications warrants that Product will operate in substantial conformance with the Documentation. Customer must notify ImPACT Applications in writing, within thirty (30) days following the date on which Customer is first given access to the Product, of any failure of Product to operate in substantial conformance with the Documentation. Customer must also notify ImPACT Applications in writing, within thirty (30) days following the date of performance of any services by ImPACT Applications hereunder, of any failure by ImPACT Applications to perform said services in a professional manner and in accordance with the terms and conditions of this Agreement. ImPACT Applications’ sole obligation and Customer’s sole remedy with respect to any failure of the Product to substantially conform to the specifications therefor, or of any failure of ImPACT Applications to perform services hereunder in a professional manner and in accordance with the terms and conditions of this Agreement, is for ImPACT Applications to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for Customer to terminate this Agreement upon written notice to ImPACT Applications. ImPACT Applications represents and warrants that it is not a Sanctioned Person or Entity. For purposes of this Agreement, the term “Sanctioned Person or Entity” means a person or entity that has been excluded by the Office of the Inspector General of the Department of Health and Human Services from participation in Medicare, Medicaid, or any state health care program (defined at 42 CFR § 1001.2) pursuant to 42 CFR Part 1001. ImPACT Applications shall notify Customer within ten (10) days after it receives notice that it is a Sanctioned Person or Entity.
6.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, IMPACT APPLICATIONS DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE PRODUCT, THE PRODUCT INFRASTRUCTURE, OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IMPACT APPLICATIONS DOES NOT WARRANT THAT THE PRODUCT OR THE PRODUCT INFRASTRUCTURE WILL OPERATE WITHOUT INTERRUPTION OR DELAY
AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE PRODUCT TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. THE PRODUCT AND THE PRODUCT INFRASTRUCTURE ARE WARRANTED ONLY TO CUSTOMER, AND CUSTOMER SHALL NOT EXTEND ANY WARRANTIES OR MAKE ANY REPRESENTATIONS FOR OR ON BEHALF OF IMPACT APPLICATIONS OR IMPACT APPLICATIONS’ LICENSORS TO ANY OTHER PERSONS.
6.3 Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, CLAIMS RELATED TO DIAGNOSTIC ACCURACY AND/OR MEDICAL MALPRACTICE), REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. EXCEPTING INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER’S PAYMENT OBLIGATIONS, CUSTOMERS OBLIGATIONS UNDER SECTION 2.6, AND THE SPECIFIC OBLIGATIONS OF IMPACT APPLICATIONS UNDER SECTION 6.1, THE AGGREGATE LIABILITY OF A PARTY FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER SHALL NOT EXCEED THREE MILLION DOLLARS ($3,000,000).
6.4 Consumer Protection Laws. THE PRODUCT IS A BUSINESS PRODUCT, THE APPLICATION OF WHICH IS COMMERCIAL, RATHER THAN CONSUMER-ORIENTED, IN NATURE, REGARDLESS OF THE NATURE OF ANY SUBLICENSES OR USE BY ANY PERSON OR ENTITY. IN EXECUTING THIS AGREEMENT, THE PARTIES RECOGNIZE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT CONSUMER PROTECTION LAWS IN ANY APPLICABLE TERRITORY SHALL NOT APPLY.
7. INFRINGEMENT INDEMNIFICATION
7.1 Indemnification by ImPACT Applications. ImPACT Applications hereby agrees to indemnify and hold harmless Customer from and against all damages, settlement amounts, costs, and expenses (including reasonable attorney’s fees) that Customer may be required to pay to third parties to the extent such damages, settlement amounts, costs, and expenses are attributable to claims that the Product infringes or misappropriates a U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, except such claims due to: (i) a breach by Customer of any provision of this Agreement; (ii) any Customer Materials; or (iii) use of the Product in combination with any software, hardware, or other equipment not provided by ImPACT Applications where the infringement or misappropriation would not
have occurred but for such combination. Notwithstanding anything stated herein to the contrary, in no event shall ImPACT Applications be required to indemnify Customer in an amount or amounts, in the aggregate, in excess of Five Million Dollars ($5,000,000).
7.2 Additional Obligation of ImPACT Applications. In the event Customer is enjoined or otherwise prohibited, or in ImPACT Applications’ opinion is reasonably likely to be enjoined or otherwise prohibited, from using the Product as a result of any claim for which ImPACT Applications is required to indemnify Customer under Section 7.1 above, ImPACT Applications, at its own expense and option, shall, in addition to fulfilling its obligations described in Section 7.1, promptly: (i) procure for Customer the right to continue using the Product; (ii) modify the Product so that it becomes non-infringing without materially altering its capacity or performance; (iii) replace the Product with a product that is reasonably equivalent in capacity and performance but is non-infringing; or, if none of the foregoing remedies is available to ImPACT Applications on commercially reasonable terms; (iv) require Customer to cease using the Product and repay to Customer any prepaid fees and other amounts paid by Customer to ImPACT Applications hereunder.
7.3 Exclusive Remedy. Sections 7.1 and 7.2 state the entire obligation of ImPACT Applications and the exclusive remedy of Customer with respect to any actual or threatened claim that the Product, or use thereof by Customer or any End User, infringes or misappropriates the patent, copyright, trademark, trade secret, or other intellectual property rights of any person.
8. TERM AND TERMINATION
8.1 Term. The initial term of this Agreement (the “Initial Term”) shall be two (2) years from the Effective Date. This Agreement, and any amendments to Schedule A as set forth in Section 2.12, shall automatically renew for additional one (1) year terms (each a “Renewal Term”) under the then-current fee schedule for the Products and services, a copy of which will be provided to Customer upon request, unless either party, at least thirty (30) business days prior to the end of the applicable term, provides notice that this Agreement will expire at the end of the applicable term. As of the Effective Date any and all prior agreements related to the licensing of the Products between Customer and ImPACT Applications shall be terminated.
8.2 Termination. Subject to Section 5 of this Agreement, either party shall have the right to immediately terminate this Agreement by delivering written notice thereof to the other party if the other party fails to perform or comply with any material term or condition of this Agreement and does not cure such failure within thirty (30) days following its receipt of written notice thereof from the other party. Additionally, Customer may terminate this Agreement at any time with or without cause upon providing
ImPACT Applications at least ninety (90) days prior written notice pursuant to Section 9.9. If, as a result of a change in law or regulation or a judicial or administrative interpretation, the performance by either party hereto of any provision of this Agreement should jeopardize the licensure of Customer, its participation in Medicare, Medicaid, Blue Cross, or other reimbursement or payment programs, its exemption from taxation under Internal Revenue Code Section 501(c)(3) or its full accreditation by the Joint Commission, or if it should constitute a violation of any statute, regulation, or ordinance, Customer may request that this Agreement be renegotiated to eliminate the jeopardy and, if agreement is not then reached, terminate this Agreement.
8.3 Effect of Termination. Upon the earlier of the expiration or termination of this Agreement, or due to Customer’s insolvency or bankruptcy: (i) all license rights of Customer under this Agreement shall automatically and immediately cease; (ii) Customer shall immediately cease all uses of the Product; (iii) Customer shall immediately delete all computer programs and files of ImPACT Applications from its computer systems and return to ImPACT Applications or destroy all Documentation, Training Materials, and/or Promotional Materials in its possession or control and shall certify in writing within ten (10) days from the date of such termination or expiration that such deletions, returns, or destructions have taken place; (iv) Customer shall immediately cease any and all use of the ImPACT Applications Marks and the Promotional Materials, including removing the ImPACT Applications Marks and the Promotional Materials from any website Customer operates; and (v) Customer shall return or destroy all Promotional Materials within thirty (30) days following termination or expiration, and shall certify same in writing. Customer shall no longer have any right or ability to market or license any of the Products, or to provide support related to the Products or offer training related to the Products. Customer agrees upon the effective date of such termination to pay all sums due to ImPACT Applications, return all proprietary information to ImPACT Applications, and provide ImPACT Applications with all outstanding reports, including lists of prospects, lists of sublicensees of Product, copies and/or originals of sublicensee acknowledgments Agreements, and details of any agreements or arrangements under which support has been subscribed for by licensees of Product for a period beyond the effective date of termination. In the event of termination by Customer solely as a result of the material breach of ImPACT Applications, Customer may receive a refund for any pre-paid fees. The following shall survive the expiration or sooner termination of this Agreement: the provisions of Sections 6, 7, 8, and 9; any payment obligations of the parties hereunder accruing prior to the date of such expiration or termination; and any other provisions herein expressly surviving such expiration or termination or necessary to interpret the respective rights and obligations of the parties hereunder.
9.1 Independent Contractors. In making and performing this Agreement, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer, franchisee, or partner of the other party for any purpose.
9.2 Force Majeure. In the event either party is unable to perform its obligations under the terms of this Agreement (other than the obligation to pay amounts due and owing hereunder) because of acts of God, strikes, equipment, or transmission failure or other causes reasonably beyond its control, such party shall not be liable to the other party for any damages resulting from such failure to perform or otherwise from such causes.
9.3 Governing Law. This Agreement and its subject matter shall be governed in accordance with the laws of the State of New York without regard to conflict of laws principles contained therein. All controversies arising hereunder shall be brought in the state and federal courts located in New. York, New York. The parties hereby consent to the exclusive jurisdiction of the State and Federal Courts located in New York, New York. and hereby agree to waive any claim or defense of inconvenient forum or governmental immunity. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. In any suit or proceeding between the parties relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys and other professionals incurred in connection with the suit or proceeding, including costs, fees, and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
9.4 Public Statements. Either party may disclose the existence of this Agreement, but shall not represent to any third party any positions, statements, intentions, terms of this Agreement, or other actions on behalf of the other. Neither party shall use the other party’s name, trademarks, or service marks or issue any press release or similar public statement without the other party’s prior written consent which shall not be unreasonably withheld or delayed.
9.5 Confidentiality. The parties (each, a “Recipient”) agree to use all information concerning the other party (each, a “Discloser”) and the Discloser’s respective subsidiaries and affiliates furnished by or on behalf of the Discloser hereunder (collectively, the “Confidential Information”) solely for the purpose of the transactions contemplated hereby. The Confidential Information will be kept confidential by the Recipient and its agents unless such Confidential Information: (i) is required to be disclosed by law; (ii) is disclosed pursuant to the Discloser’s
prior written consent; or (iii) otherwise becomes non-confidential as described below. Upon termination of this Agreement, the Recipient will return all Confidential Information as may be requested by the Discloser. The term “Confidential Information” shall not be deemed to include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known or available; (ii) is known by the Recipient at the time of receiving such information as evidenced by its records created prior to the date of this Agreement; (iii) is hereafter furnished to the Recipient by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the Recipient without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by the Discloser.
9.6 Information Security
a.! ImPACT Applications’ Responsibilities. ImPACT Applications will implement administrative, physical and technical safeguards to protect Personally Identifiable Information that are no less rigorous than accepted industry practices and shall ensure that all such safeguards, including the manner in which Personally Identifiable Information is collected, accessed, used, stored, processed, disposed of and disclosed, comply with applicable data protection and privacy laws, as well as the terms and conditions of this Agreement. For purposes of this Agreement, “Personally Identifiable Information” shall mean (a) any information from which an individual may be identified; (b) any information concerning an individual that would be considered “nonpublic personal information” within the meaning of Title V of the Gramm-Leach Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) and its implementing regulations, as the same may be amended from time to time; (c) any information regarding Customer’s employees, policyholders, claimants, including (i) an individual’s name, address, e-mail address, IP address, telephone number and/or social security number, (ii) the fact that an individual has a relationship with Customer, (iii) an individual’s account information; (iv) any information regarding an individual’s medical history or treatment; and (v) any other information of or relating to an individual that is protected from disclosure by applicable Privacy Laws. ImPACT Applications represents and warrants that its collection, access, use, storage, disposal and disclosure of Personally Identifiable Information does and will comply with (a) all applicable federal and state Privacy and Data Protection laws; (b) all other applicable regulations and directives; and (c) all of the terms and conditions of this Agreement. For purposes of this Agreement, “Privacy and Data Protection Laws” shall mean any national, federal, state or local laws, rules or regulations of any jurisdiction relating to the nonpublic personal information, including but not limited to the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations and CA SB 1386 regarding privacy and Massachusetts regulation 201 CMR 17, as the same may be amended from time to time.
b.! ImPACT Applications’ Safeguards. At a minimum, ImPACT Applications’ safeguards for the protection of Personally
Identifiable Information shall include: (i) limiting access of Personally Identifiable Information to authorized employees and authorized third-party subcontractors who have a need to know or otherwise access Personally Identifiable Information to enable it to perform its obligation under this Agreement; (ii) securing business facilities, data centers, paper files, servers, back-up systems and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (iii) implementing network, device application, database and platform security; (iv) securing information transmission, storage and disposal; (v) implementing authentication and access controls within media, applications, operating systems and equipment; (vi) encrypting highly-sensitive personal information (an individual’s government-issued identification number, financial account number or biometric or health data) stored on any mobile media; (vii) encrypting highlysensitive personal information transmitted over public or wireless networks; (viii) strictly segregating Personally Identifiable Information of Customer so that Personally Identifiable Information is not commingled with any other types of information; (ix) implementing appropriate employee security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (x) providing appropriate privacy and information security training to ImPACT Applications’ employees.
c.! Client’s Right to Audit. Customer (or its subcontractor or appointed auditor) has the right to audit and/or inspect ImPACT Applications’ security practices and implementation. Customer is entitled to perform such an audit or inspection no more often than once per calendar year. Customer will provide written notice to ImPACT Applications of its intention to conduct an audit. In lieu of or in addition to Customer performing its own audit, ImPACT Applications must supply an independent certification such as an SOC2 or ISO 27001, or mutually agreed upon industry standard, at contract initiation and annually thereafter. Customer has the right to review the controls tested as well as the results, and has the right to request additional controls to be added to the review for testing the controls that have an impact on Personally Identifiable Information. Audits will be at Customer’s sole expense. ImPACT Applications also agrees to provide access as set forth above to the SOC2 or ISO 27001, or mutually agreed upon industry standard, for any of ImPACT Applications’ subcontractors or third-party vendors who might have access to Personally Identifiable Information.
d.! Security Breach. If a Security Breach is confirmed by ImPACT Applications, ImPACT Applications will notify Customer of such Security Breach within two (2) business days after confirming the Security Breach. ImPACT Applications agrees, at its own expense, to promptly (a) investigate the Security Breach; (b) cure such breach; (c) and provide Customer with a contact name who shall serve as Client’s primary security contact for purposes of resolving obligations associated with the Security Breach. For purposes of this Agreement “Security
Breach” shall mean the unauthorized disclosure of, access to, and/or use of Personally Identifiable Information arising out of ImPACT Applications’ services provided under the Agreement or breach of ImPACT Applications’ obligations under this Agreement. Security Breach shall also include the unauthorized disclosure of, or access to, and/or use of Personally Identifiable Information as a result of an act or omission by ImPACT Applications and/or its employees in connection with the Personally Identifiable Information ImPACT Applications and/or its Employees has access to pursuant to this Agreement and/or ImPACT Applications’ obligations under this Agreement.
e.! Subcontractors and ImPACT Applications’ Employees Adherence to Data Security Standards. ImPACT Applications shall require that all subcontractors and other ImPACT Applications employees who have access to Client's data are subject to obligations substantially like the obligations in this Agreement.
f.! Additional Indemnification for Security Breach. ImPACT Applications agrees that in the case of a Security Breach, ImPACT Applications shall indemnify and hold Customer harmless for the cost of breach notification under applicable data privacy laws, for penalties, fines and litigation costs related to such Security Breach, and for credit monitoring or credit reporting to the extent required under applicable law. Customer retains the right to be included as a party to any investigation of a security incident involving Personally Identifiable Information.
9.7 Third Party Beneficiaries. End Users are not and will not be deemed to be third party beneficiaries of this Agreement, or to have any contractual relationship with ImPACT Applications by reason of this Agreement.
9.8 Insurance. ImPACT Applications agrees to maintain in force at all times during the term of this Agreement the following insurance coverage with minimum policy limits: Commercial General Liability - $5,000,000 per occurrence/$5,000,000 aggregate. Automobile Liability - $1,000,000 combined single limit. Workers Compensation – as required by applicable state law. Umbrella - $2,000,000 per occurrence/$2,000,000 aggregate. Cyber Liability – $1,000,000 per occurrence/$1,000,000 aggregate. Professional/Errors & Omissions Liability - $1,000,000 per occurrence/$1,000,000 aggregate.
ImPACT Applications further agrees to have Customer named as an additional insured under the ImPACT Applications' primary and umbrella coverage, and to provide Customer with evidence of Customer’s status as an additional insured in such policy or policies. ImPACT Applications agrees that at least thirty (30) days written notice shall be given to Customer prior to cancellation, modification or expiration of any of the terms of coverage of any policy.
9.9 Miscellaneous. Customer may not assign any of its rights
or privileges, or delegate any of its duties or obligations hereunder, in whole or in part, by operational of law or otherwise, to any third party without the prior written consent of ImPACT Applications. Customer’s merger or consolidation with another entity or health care system shall not be considered an assignment requiring the prior written consent of ImPACT Applications provided that the surviving entity assumes all of Customer’s obligations hereunder without qualification or condition. This Agreement shall be freely assignable by ImPACT Applications upon thirty (30) days prior written notice to Customer. Any attempted assignment or delegation of this Agreement or any duties or obligations hereunder in violation of the foregoing limitations shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. All notices required to be in writing shall be delivered by hand, sent by recognized overnight courier (such as Federal Express or UPS), electronic mail, or mailed by certified or registered mail, return receipt requested, postage pre-paid, addressed to the parties set forth above. This Agreement, including all schedules attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be amended, supplemented, or otherwise modified except by an instrument in writing signed by both parties. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed
as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement. This Agreement shall become binding when any one or more counterparts hereof, individually or taken together, shall bear the original or facsimile signature of each of the parties hereto. This Agreement may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon, but all of which together shall constitute but one in the same instrument.