This Software License Agreement (this “Agreement”) constitutes a legal contract between Blubyrd, Inc. , a Delaware limited liability company (“Provider”), and you (“you” or “Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. This Agreement takes effect upon the mutual execution of an Order Form by the Parties (“Effective Date”). If you are an entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement and you agree to be bound by this Agreement.
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY
USE OF THE SOFTWARE IS SUBJECT TO THE EXECUTION OF A VALID ORDER FORM BETWEEN YOU AND PROVIDER. IF THERE IS NOT AN ACTIVE ORDER FORM IN PLACE, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE AND MUST IMMEDIATELY CEASE ALL USE OF THE SOFTWARE.
The parties agree as follows:
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Software that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software.
(b) “Authorized User” means Customer’s employees who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement.
(c) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Software.
(d) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Software provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Software.
(e) “HIPAA” means the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104 191, as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009, and related regulations promulgated by the Secretary.
(f) “Intellectual Property” means (a) patents and patent applications, (b) trademarks, service marks, trade names, trade dress and Internet domain names, together with the goodwill associated therewith, (c) copyrights, including copyrights in software, (d) registrations and applications for registration of any of the foregoing in (a)-(c), (e) trade secrets and (f) rights to sue and collect damages or be awarded other relief with respect to any of the foregoing.
(g) “Order Form” means an ordering document which references and incorporates this Agreement and that describes the Software being ordered by Customer.
(h) “Provider Data” means information, data, and other content, other than Aggregated Statistics, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Provider through the software offering described in the applicable Order Form.
(i) “Provider IP” means the Intellectual Property in the Software (including in the Provider Data), the Documentation, and any other materials provided to or accessed by Customer or any Authorized User under this Agreement. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Software, but does not include Customer Data.
(j) “Software” means the software offering described in the applicable Order Form and any Provider Data.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right, without the right to sublicense, to access and use the Software and Documentation during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Software.
(b) Use Restrictions. Customer shall not use the Software for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users or third parties to: (i) reproduce, copy, modify, translate, enhance, or create derivative works of the Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) bypass or breach, or attempt to bypass or breach, any security settings or features on the Software; (v) remove any proprietary notices from the Software or Documentation; (vi) use the Software on a service bureau or application service provider basis; (vii) provide, divulge, disclose, make available to, or permit the use of the Software by any third party; or (viii) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any person, or that violates any applicable law.
(c) Reservation of Rights. The Software and Documentation are licensed, not sold, by Provider to Customer, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Software or Documentation. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any right to Intellectual Property or other right, title, or interest in or to the Provider IP. Customer hereby irrevocably assigns to Provider all right, title, and interest in and to all authorized and unauthorized derivative works of the Software or Documentation created by Customer.
(d) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Software if: (i) Provider reasonably determines that (A) there is a threat or attack on the Software or any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Software, the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Software or Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Software to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party Software or products required to enable Customer to access the Software; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(e) Changes. Provider reserves the right, in its sole discretion, to make any changes to the Software and Documentation that it deems necessary or useful to maintain or enhance the quality, efficiency or performance of the Software or otherwise to comply with applicable law.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Software and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Software. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions. Customer shall at all times comply with the security protection requirements set out in Exhibit A.
(b) Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other person or entity to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any person or entity) for employment or engagement as an independent contractor any employee or independent contractor who was employed or engaged by Provider during the Term. In the event of a violation of this paragraph, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior twelve (12) months.
(c) Competing Offering. During the Term and for two (2) years after, Customer shall not, and shall not assist any other person or entity to, directly or indirectly, develop, sell, offer for sale, license, permit the use of or otherwise commercialize any product or service, including software or software-as-a-service, that competes with or would reasonably be expected to compete with the Software.
4. Service Levels and Support. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Software available in accordance with the service levels set out in Exhibit B. Except as set forth herein, this Agreement does not entitle Customer to any support for the Software.
5. Fees and Payment.
(a) Fees. Customer shall pay Provider the fees (“Fees”) as set forth in the applicable Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Order Form. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for sixty (60) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Software until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
6. Audits. Provider or its nominee (including its accountants and auditors) may, upon reasonable notice to Customer, during normal business hours and up to twice per year, inspect and audit Customer’s use of the Services under this Agreement at any time during the Term and for a period of one (1) year thereafter. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Provider with respect to such audit.
7. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about such first Party’s business affairs, products, confidential Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information that is either identified as confidential (whether orally or in writing) or would otherwise reasonably be expected to be maintained as confidential (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order or law shall first have given written notice to the other Party and made a reasonable effort to limit disclosure or obtain a protective order. On the expiration or termination of the Agreement, the receiving Party shall promptly either, at the disclosing Party’s election, return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire seven years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information included in the Provider IP or that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains confidential or, with respect to trade secrets, subject to trade secret protection under applicable law.
8. Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest in and to the Software, Documentation and Provider IP, and any derivatives of any of the foregoing which Customer hereby irrevocably assigns to Provider in the event Customer obtains any rights thereto and shall take steps reasonably requested by Provider to effectuate such assignment.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all Intellectual Property, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, irrevocable, non-transferable (except in compliance with Section 12(g)), sub-licensable, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Software to Customer, including providing the Customer Data to third party service providers for use for the benefit of Provider and to third parties for purposes of coordinating the scheduling functions of the Software. Customer further hereby grants to Provider a non-exclusive, perpetual, irrevocable, royalty-free, freely transferable and assignable, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software, Documentation or Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby irrevocably assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in any Intellectual Property contained in the Feedback and Customer shall, and shall cause its employees, contractors and agents to, take all steps reasonably requested by Provider to effectuate such assignment.
9. Representations, Warranties and Warranty Disclaimer.
(a) Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(ii) it has the full right, power, and authority to enter into and perform its obligations under this Agreement;
(iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
(iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
(b) Provider warrants that the Software will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Software unless specifically identified in Exhibit B. The remedies set forth in Exhibit B are Customer’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 9(a).
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE SOFTWARE, DOCUMENTATION AND PROVIDER IP ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, DOCUMENTATION OR PROVIDER IP, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY CUSTOMER OR THIRD PARTY SOFTWARE OR SYSTEM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software, Documentation or Provider IP infringes or misappropriates such third party’s Intellectual Property, provided that Customer (A) promptly notifies Provider in writing of the claim; (B) provides assistance in connection with the defense and settlement of the claim as Provider may reasonably request; (C) allows Provider sole authority to control the defense and settlement of such claim; and (D) complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
(ii) If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 10(a) will not apply to the extent that the alleged infringement arises from or is based upon: (A) use of the Software or Documentation in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) designs, requirements, or specifications for the Software required by or provided by Customer; (C) use of the Software outside of the scope of the license granted to Customer; (D) Customer’s failure to use the latest release of the Software or to comply with instructions provided by Provider; (E) modifications to the Software or Documentation not made by Provider; (F) unauthorized use of the Software; or (G) Customer Data. Customer will reimburse Provider for any costs or damages that result from these actions.
(iv) SOLE REMEDY. THIS SECTION 10(A) SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE, DOCUMENTATION OR PROVIDER IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY OF ANY THIRD PARTY.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim arising out of or related to (i) the Customer Data or any use of the Customer Data, (ii) Customer’s or any Authorized User’s use of the Software, Documentation or Provider IP, (iii) Customer’s negligence or willful misconduct; or (iv) modifications to the Software, Documentation or Provider IP not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, such consent not to be unreasonably withheld conditions or delayed, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
11. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SOFTWARE, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
12. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the initial term set forth in the applicable Order Form (the “Initial Term”). This Agreement will automatically renew for successive periods of one (1) year unless terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Software, Documentation and Provider IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Software, Documentation and Provider IP and certify in writing compliance with the foregoing to the Provider. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 12(d) and Sections 1, 3, 5, 6, 7, 8, last sentence of 9(b), 10, 111, and 133 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (including, if applicable, the BAA) and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and the related Exhibits, the body of this Agreement shall control.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and sent to the applicable Party at the address set forth in the applicable Order Form. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid).
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, pandemics explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. Provider may update this Agreement at any time. For any material updates, Provider will give you at least 30 days’ prior notice (which may be via e-mail) before the updates are effective (the “Notice Period”). During the Notice Period, you may terminate this Agreement upon notice to Provider if you do not agree to the modified terms. Provider may request that you review and consent to modified terms in connection with a Renewal Term (provided that you will have at least 30 days to review the material modifications), and your election to enter the Renewal Term will be deemed acceptance of the modified terms. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the courts located in the city of Dallas in the State of Texas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Provider may assign any or its rights or delegate any of its obligations hereunder, whether by operation of law or otherwise, without consent from Customer. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Software, the Documentation or any Customer Data outside the United States.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
SECURITY AND DATA PROTECTION
1. Information Security. Provider will employ commercially reasonable security measures consistent with industry standards to protect its systems and the data used in connection with the Software, including as necessary to comply with applicable law with respect thereto.
2. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Software; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services and (d) the security and use of Customer’s and its Authorized Users’ credentials to access the Software.
3. Data Breach Notification. If Customer becomes aware of any actual or potential unauthorized access or use or loss of, impairment to or the compromise of, in whole or in part, the Software or any data used in connection therewith (collectively or separately, a “Security Breach”), Customer shall, unless prohibited from doing so under applicable law, promptly, but in any event within twenty-four (24) hours of being aware of such Security Breach or any shorter period required by applicable law, notify Provider of all then-known details of such Security Breach. Customer shall assist Provider, at Customer’s expense, in mitigating any potential damage from such Security Breach and pay the cost of issuance of any notices required by applicable law in connection therewith. Unless prohibited by applicable law, Customer shall provide Provider with reasonable notice of, and the opportunity to review and comment on the content of, all public notices, filings, or press releases concerning a Security Breach prior to any such publication, with ultimate decision-making power for any such content going to Provider to the extent it applies to Provider or any Confidential Information of Provider.
4. Business Associate Agreement. If applicable, the Parties shall also enter into a Business Associate Agreement (the “BAA”) to govern the use of any protected health information included in the Customer Data. The BAA is hereby incorporated into the Agreement. In the event of a conflict between the BAA and the Agreement, the Agreement shall control except with respect to provisions expressly required under HIPAA.
1. Service Levels. Subject to the terms and conditions of the Agreement, Provider will use commercially reasonable efforts to make the Software available to Customer at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the Term, excluding unavailability as a result of any of the exceptions described below in this Exhibit B.
2. Exceptions. The Software shall not be considered unavailable for purposes of this Exhibit B if the Customer’s or any Authorized User’s inability to access or use the Software is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User; (b) Customer’s or its Authorized User's Internet connectivity; (c) a Force Majeure event; (d) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; (e) Scheduled Downtime (as defined below); or (f) suspension of Customer’s or the Authorized User’s, as applicable, access to or use of the Software pursuant to the terms of the Agreement.
3. Service Level Failures and Remedies. In the event of a failure by Provider to meet the service levels outlined in this Exhibit B that Customer promptly notifies Provider of in writing, Provider shall issue a credit to Customer in the amount of fifty percent (50%) of one monthly Fee payment for the Software for the month in which such failure occurred. This paragraph sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any failure by Provider to meet the service levels outlined in this Exhibit B.
4. Scheduled Downtime. Provider may schedule downtime during which the Software will not be available as reasonably necessary or desirable for Provider to maintain or upgrade the Software. Provider will use commercially reasonable efforts to: (a) schedule downtime during normal business hours in the State of Texas; and (b) give Customer at least twenty-four hours prior notice of all scheduled outages of the Software (“Scheduled Downtime”).
HIPAA Business Associate AgreementThis Business Associate Agreement (“BAA”) is entered into by and between Blubyrd, Inc. as Business Associate and you as Covered Entity and is effective as of the effective date of the License Agreement (“Effective Date”). Business Associate and Covered Entity may be referred to herein collectively as “Parties” or individually as a “Party.” This BAA is incorporated into and made part of the License Agreement (defined below).
WHEREAS, Business Associate provides access and other services related to certain software (“Services”) to Covered Entity pursuant to the Software License Agreement available at https://www.bluyrd.com/terms-of-service the “License Agreement”);
WHEREAS, in connection with these Services, Business Associate may create, receive, maintain or transmit PHI from, to, or on behalf of, Covered Entity, which PHI is subject to certain protections under the HIPAA Rules; and
WHEREAS, this BAA defines the rights and responsibilities of each Party with respect to PHI exchanged pursuant to this BAA and the License Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Scope; Definitions.
(a) This BAA shall be effective to the extent Blubyrd, Inc. has agreed to perform Services that require Blubyrd, Inc. to create, receive, maintain or transmit PHI pursuant to the License Agreement.
(b) All terms used but not defined herein shall have the meaning set forth in the HIPAA Rules or the License Agreement, as applicable; provided, in the event of a conflict between defined terms, the HIPAA Rules shall control.
(c) The following terms are specifically defined as follows:
(i) “Business Associate” has the same meaning as the term “business associate” at 45 CFR 160.103, and, subject to Section 1(a), in reference to the Party to this BAA, shall mean Blubyrd, Inc.
(ii) “Covered Entity” has the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the Party to this BAA, shall mean you.
(iii) “HIPAA Rules” means, with respect to the federal Health Insurance Portability and Accountability Act of 1996, Pub. Law 101-191, as amended from time to time, and the Health Information Technology for Economic and Clinical Health (“HITECH”) Act of 2009 (as applicable).
(iv) “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, Use or Disclosure of Covered Entity’s electronic protected health information “ePHI.”
2. Obligations and Activities of Business Associate.
(a) Business Associate agrees not to Use or Disclose PHI received or created by Business Associate except as permitted by this BAA, the License Agreement, or as Required by Law.
(b) Business Associate agrees to use appropriate safeguards, and to comply with Subpart C of 45 CFR Part 164 with respect to ePHI, to prevent Use or Disclosure of PHI other than as provided for by this BAA, the License Agreement, or as Required by Law.
(c) Business Associate agrees to report to Covered Entity any Use or Disclosure of PHI not provided for by this BAA of which it becomes aware, including a Breach of Unsecured PHI as required under 45 C.F.R. §164.410, and any Security Incident of which it becomes aware. Notwithstanding the foregoing, the Parties acknowledge and agree that this Section 2(c) constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required.
(d) Business Associate agrees, in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to obtain from any Subcontractor that creates, receives, maintains, or transmits PHI on behalf of Business Associate pursuant to this BAA and the License Agreement, reasonable written assurances that Subcontractor will adhere to the restrictions and conditions that apply to Business Associate through this BAA with respect to such PHI as required by the HIPAA Rules.
(e) Business Associate Agrees to make amendment(s) to PHI maintained in a Designated Record Set (if any), as requested by the Covered Entity or an individual (as applicable) pursuant to 45 C.F.R. §164.526, or take other measures as reasonably necessary to enable Covered Entity to satisfy its obligations under 45 C.F.R. §164.526.
(f) Business Associate agrees to make available, at the request of Covered Entity, PHI that is maintained in a Designated Record Set (if any) as necessary to allow Covered Entity to satisfy its obligations under 45 C.F.R. §164.524.
(g) Business Associate agrees to maintain and make available to Covered Entity the information required to provide an accounting of Disclosures, as reasonably necessary to satisfy Covered Entity’s obligations under 45 C.F.R. §164.528.
(i) For clarity, with respect to the forgoing Section 2(e)-(g), in no case shall Business Associate be responsible for responding directly to any Individual who submits a request to Business Associate pursuant to 45 CFR §164.524; provided that Business Associate shall promptly forward such request to Covered Entity in accordance with Section 2(e)-(g).
(h) To the extent that Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, Business Associate agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s).
(i) Business Associate agrees to make its internal practices, books, and records, regarding the Use and Disclosure of PHI created or received by the Business Associate on behalf of the Covered Entity available to the Secretary for purposes of the Secretary determining compliance with the HIPAA Rules.
3. Permitted Uses and Disclosures by Business Associate.
(a) Business Associate may only Use or Disclose PHI as permitted in this BAA, the License Agreement, or as Required by Law. Business Associate may provide Data Aggregation services to Covered Entity, and may de-identify the PHI in accordance with 45 CFR 164.514(a)-(c).
(b) Business Associate may not Use or Disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.
(c) Business Associate may Use PHI for its proper management and administration, or to carry out its legal responsibilities.
(d) Business Associate may Disclose PHI for its proper management and administration, or to carry out the legal responsibilities, provided the disclosures are (i) Required by Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies business associate of any instances of which it is aware in which the confidentiality of the information has been breached.
(e) Any permitted Use or Disclosure under Section 3(b)(i)-(iv) shall be consistent with the minimum necessary requirements set forth in the HIPAA Rules.
4. Obligations of Covered Entity.
(a) During the Term of this BAA, Covered Entity shall:
(i) Provide Business Associate with a copy of its Notice of Privacy Practices;
(ii) Notify Business Associate of any limitations in its Notice of Privacy Practices, to the extent that such limitation may affect Business Associate’s Use or Disclosure of PHI;
(iii) Notify Business Associate of any changes in, or revocation of, permission by an Individual to Use or Disclose PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of PHI;
(iv) Not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity (other than as permitted pursuant to Section 3(b)(iii)-(iv), above); and
(v) Comply with all HIPAA requirements applicable to Covered Entity.
5. Term and Termination.
(a) Term. The Term of this BAA shall commence as of the Effective Date and, except for the rights and obligations set forth in this BAA specifically surviving termination, shall terminate upon the termination or expiration of the last License Agreement, unless otherwise earlier terminated for cause in accordance with this Section 5.
(b) Termination by Covered Entity. In addition to any termination provisions set forth in the applicable License Agreement, Covered Entity may terminate this BAA if Covered Entity determines, in good faith and after reasonable investigation, that Business Associate has violated a material term of this BAA, and Business Associate has failed to cure such material breach or end the violation within thirty (30) days of notice by Covered Entity of such alleged breach.
(c) Termination by Business Associate. In addition to and notwithstanding any termination provisions set forth in the applicable License Agreement, Business Associate may terminate this BAA if Business Associate determines, in good faith and after reasonable investigation, that Covered Entity has violated a material term of this BAA, and Covered Entity has failed to cure such material breach or end the violation within thirty (30) days of notice by Business Associate of such alleged breach.
(d) Effect of Termination. Upon termination or expiration of this BAA for any reason, Business Associate, with respect to any PHI received from Covered Entity or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
(i) Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities (if any);
(ii) Return to Covered Entity or destroy, at Covered Entity’s expense, the remaining PHI that the Business Associate still maintains in any form that is not necessary to carry out Section 5(d)(i);
(iii) Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to ePHI to prevent Use or Disclosure of the PHI, other than as provided for in this Section 5(d), for as long as Business Associate retains the PHI;
(iv) Not Use or Disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at Section 3(b)(iii) which applied prior to termination; and
(v) Return to Covered Entity or destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration, or to carry out its legal responsibilities.
6. Limitation of Liability.
Notwithstanding anything to the contrary set forth herein, the Limitation of Liability set forth in the License Agreement shall apply to limit the Parties’ liability under this BAA.
This BAA is governed by, and will be construed in accordance with, the laws of the State that govern the License Agreement. Any action relating to this BAA must be commenced within two years after the date upon which the cause of action accrued. This BAA may only be assigned in connection with an assignment of the License Agreement. If any part of a provision of this BAA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this BAA will not be affected. All notices relating to the Parties’ legal rights and remedies under this BAA will be provided in writing to a Party, will be sent to its address set forth in the License Agreement, or to such other address as may be designated by that Party by notice to the sending Party, and will reference this BAA. This BAA may be modified, or any rights under it waived, only by a written agreement executed by the authorized representatives of the Parties. In the event a change in the HIPAA Rules require the Parties to amend this BAA, the Parties agree to negotiate such amendment in good faith, provided that either Party may terminate this BAA upon notice if the Parties are unable to mutually agree upon and execute such amendment. This BAA is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing all prior agreements, communications, and understandings (written and oral) regarding its subject matter. Any ambiguity in this BAA shall be resolved in favor of the meaning that permits the Parties to comply with applicable law and any current regulations promulgated thereunder. Any failure of a Party to exercise or enforce any of its rights under this BAA will not act as a waiver of such rights.
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