MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
FOR VIRTUAL OFFICEWARE (DE) LLC PRODUCTS AND SERVICES
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT CAREFULLY BEFORE CLICKING AN “AGREE” OR SIMILAR BUTTON OR INSTALLING OR USING THE VOW PROGRAMS. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND VIRTUAL OFFICEWARE (DE), LLC (“VOW”) THAT SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE VOW PROGRAMS (AS DEFINED BELOW). BY CLICKING AN “AGREE” OR SIMILAR BUTTON OR BY INSTALLING AND/OR USING THE PROGRAMS, YOU AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS STATED OR REFERENCED HEREIN. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS AND CONDITIONS, DO NOT CLICK AN “AGREE” OR SIMILAR BUTTON AND DO NOT INSTALL OR USE THE VOW PROGRAMS. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU – ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY VOW AND WILL NOT BE PART OF THIS AGREEMENT.
THIS VOW MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT (THIS “AGREEMENT”) IS AN INTEGRAL PART OF THE SALES ORDER BETWEEN YOU AND VOW (THE “SALES ORDER”) AND THE TERMS OF THE SALES ORDER ARE HEREBY INCORPORATED BY REFERENCE.
YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOUR ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
“You” and “your” refers to the legal entity that has ordered software and services from VOW by executing the Sales Order that accompanies and incorporates this Agreement. The following terms shall have the following meanings: (a) “VOW Programs” mean the software products owned by and/or distributed by VOW that you have ordered, including, but not limited to programs supplied by Virence/athenahealth through VOW, program documentation and any updates acquired through technical support whether through a capital license (“End User License”) or a software as a service license (“SAAS License”); (b) “Program Documentation” refers to the program user manual and program installation materials; (c) the term “Ancillary Programs” refers to third party materials specified in the Program Documentation, which may only be used for the purposes of installing or operating the VOW Programs with which the ancillary programs are delivered; (d) “Users” means those individuals authorized by you or on your behalf to use the Programs included in a SAAS License, if applicable; and “Your Data” means the data provided by you that resides in a SAAS environment, if applicable. If you have purchased access to the Programs through a SAAS License, that license includes system administration, system management and system monitoring activities that VOW performs for VOW Programs, including the right to use the VOW Programs. Any services, including technical support, education, hosted/outsourcing services, consulting or other services that you have purchased under the Sales Order are hereinafter referred to as “Services.”
If you have ordered the VOW Programs through a SAAS License as set for the in the Sales Order, this Article 2 sets forth the terms of that license.
2.1 Upon VOW’s acceptance of the Sales Order and for the duration of the SAAS License term defined in the Sales Order, you have the nonexclusive, non-assignable, royalty free, limited right to use in the United States, the VOW Programs set forth in the Sales Order solely for your internal business operations and subject to the terms of this Agreement. You may allow your Users to use the VOW Programs for this purpose and you are responsible for your Users’ compliance with this Agreement. The VOW Programs are provided as described in, and subject to, the policies referenced in the Sales Order. You hereby provide VOW with an irrevocable power of attorney to accept Virence’s/athenahealth’s license agreement with respect to any Virence/athenahealth software products installed by VOW and to execute any documents or electronically sign such acceptance on your behalf with respect to such Virence/athenahealth software.
2.2 You acknowledge that VOW has no delivery obligation and will not ship copies of the VOW Programs under this SAAS License. You agree that you do not acquire under this Agreement any license to use the VOW Programs specified in the Sales Order in excess of the scope and/or duration of the SAAS License granted herein. Upon the termination or expiration of the Agreement or the SAAS License herein, your right to access or use the VOW Programs specified in the Sales Order shall terminate.
2.3. You retain all ownership and intellectual property rights in and to Your Data. VOW or its licensors retain all ownership and intellectual property rights to the Services and VOW Programs. VOW retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.
2.4 You may not: (a) remove or modify any VOW Program markings or any notice of VOW’s or its licensors’ proprietary rights; (b) make the VOW Programs or materials resulting from the VOW Programs available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the VOW Programs you have acquired); (c) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the VOW Programs, including, but not limited to review of data structures or similar materials produced by the VOW Programs, or access or use the VOW Programs in order to build or support, and/or assist a third party in building or supporting, products or programs competitive to VOW; (d) disclose results of any VOW Program benchmark tests without VOW’s prior written consent; or (e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau ,use, or otherwise commercially exploit or make the VOW Programs or materials available, to any third party other than as expressly permitted under the terms of this Agreement.
2.5 The rights granted to you under this Agreement are also conditioned on the following: (a) except as expressly provided herein, no part of the VOW Programs may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (b) VOW will only support the most current version and one release back from that version, as well as versions supported by Virence/athenahealth, of the VOW Programs made available by VOW, including all updates and modifications made available by VOW and you shall not use any version of the VOW Programs other than the current supported versions provided by VOW; and (c) you shall make every reasonable effort to prevent unauthorized third parties from accessing the VOW Programs.
2.6 In providing access to the VOW Programs under the SAAS License, VOW will comply with the BAA and the HIPAA Security Regulations. You agree to provide any notices and obtain any consents related to your use of the VOW Programs and VOW’s provision of the VOW Programs on your behalf, including those related to the collection, use, processing, transfer and disclosure of personal information on your behalf. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Your Data as provided to VOW. If you have fully paid all undisputed fees due under this Agreement as required by its terms, VOW shall provide to you, at no additional cost, a complete copy of Your Data, “as is,” on your media, at any time within fifteen (15) days of VOW’s receipt of your written request and media. Export in any other format might be available at an additional cost to you.
2.8 VOW will provide you with telephone support services through its call center in accordance with our Service Level Agreement (“SLA”). Clinical and administrative consulting services will be available from VOW at an additional charge.
2.9 Any deposit paid by you for the SAAS License is non-refundable and non-transferable.
END USER LICENSE AGREEMENT PROVISIONS
If you have ordered the VOW Programs through an End User License as set for the in the Sales Order, this Article 3 sets forth the terms of that license.
3.1 Upon VOW’s acceptance of the Sales Order and your payment of the license fees set forth in the Sales Order, you have the non-transferable, non-assignable, revocable (in accordance with these terms and the terms of the Sales Order), limited right to use the VOW Programs solely for your internal business operations and subject to the terms of this Agreement, including the license definitions and rules set forth in the Program Documentation. You may allow your agents and contractors to use the VOW Programs for the purposes set forth in this Agreement, subject to the terms of this Agreement, you are responsible for their compliance with this Agreement in such use. The terms referenced in the Sales Order shall govern your use of such VOW Programs. You hereby provide VOW with an irrevocable power of attorney to accept Virence’s/athenahealth’s end user license agreement with respect to any Virence/athenahealth software products installed by VOW and to execute any documents or electronically sign such acceptance on your behalf with respect to such Virence/athenahealth software.
3.2 You retain all ownership and intellectual property rights in and to Your Data. VOW or its licensor retains all ownership in the intellectual property rights to the VOW Programs and any associated software included in the Sales Order. Furthermore, VOW retains all ownership and intellectual property rights to anything developed and delivered to you under this Agreement. Third party technology that may be appropriate or necessary for use with some VOW Programs is specified in the Program Documentation and such third-party technology is licensed to you under the terms of the third-party technology license agreement specified in the Program Documentation and not under the terms of this Agreement. Some programs may include source code that VOW may provide as part of its standard shipment of such programs, which source code shall be governed by the terms of this Agreement. You may not: (a) use the VOW Programs for rental, timesharing, subscription service, hosting, or outsourcing; (b) remove or modify any VOW Program markings or any notice of VOW’s or its licensors’ proprietary rights; (c) make the VOW Programs, operating system, integrated software available in any manner to any third party for use in the third party’s business operations; (d) transfer title to the VOW Programs, operating system and/or integrated software from you to any other party; (e) modify, make derivative works of, reverse engineer, reverse compile, disassemble or decompile the VOW Programs, operating system and/or integrated software; (f) duplicate all or part of the VOW Programs, operating system and/or integrated software except for a sufficient number of copies for your licensed use and one copy of each program media; or (g) assign, give, or transfer the VOW Programs, integrated software and/or any services ordered or an interest in them to a third party. The rights granted to you under this Agreement are also conditioned on the following: (a) except as expressly provided herein, no part of the VOW programs may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (b) VOW will only support the most current version and one release back from that version, as well as versions supported by Virence/athenahealth, of the VOW Programs made available by VOW, including all updates and modifications made available by VOW and you shall not use any version of the VOW Programs other than the current supported versions provided by VOW; and (c) you shall make every reasonable effort to prevent unauthorized third parties from accessing the VOW Programs.
4.1 VOW shall provide the Services set forth in a statement of work (“Statement of Work”). Each Statement of Work shall: (a) be signed by both Parties; and (b) be deemed to incorporate all the terms and conditions set forth herein. In the event of any conflict between the terms and conditions herein and those in any Statement of Work, the terms and conditions set forth herein shall prevail.
4.2 Each Statement of Work shall contain: (a) a description of the project and the services to be performed by VOW; (b) a description of the tasks to be performed by you; (c) a description of the deliverables, if any, to be produced by VOW; (d) the schedule for completion of each deliverable and/or stage of the project, if applicable; and (e) the fees to be paid to VOW and a payment schedule.
4.3 During the course of VOW’s performance of the Services under any Statement of Work, you may request changes in the Services to be rendered. VOW shall incorporate any such changes, provided that the both Parties execute a written change order setting forth the amended scope of work, any changes in scheduled completion dates for deliverables and/or services, and any change in the applicable fees or payment terms.
4.4 VOW shall invoice you for fees due pursuant to the payment schedule set forth in the applicable Statement of Work. Payment of each invoice shall be due thirty (30) days after you receive such invoice.
4.5 VOW has created, acquired or otherwise has rights in, and may, in connection with the performance of the Services hereunder, create, acquire or otherwise obtain rights in, various data, technology, methods and methodologies, know-how, ideas, techniques, models, development tools, routines, subroutines and other software code, documentation, tools, software and interfaces, utilities and routines, data, know-how and logic, coherence and methods of operation of systems, as well as information and materials that VOW may develop independently of this Agreement, and including any intellectual or proprietary rights inherent in any of the foregoing or appurtenant thereto (collectively, the “VOW Technology”).
4.6 VOW shall retain and shall own exclusively all right, title and interest in and to all VOW Technology and derivative works thereof and all related intellectual property rights. In addition, VOW retains all other rights in and to the VOW Technology, including the right to use, in any manner whatsoever and on its own behalf or on behalf of others, VOW’s knowledge, experience and know-how, including processes, ideas, concepts and techniques developed in connection with or as a result of the Services provided under this Agreement.
4.6 Should VOW or any of its agents or representatives seek to obtain letters patent, trademarks, service marks or copyrights in any country of the world on all or part of the VOW Technology, derivative works or related materials, you shall cooperate fully in providing information, completing forms, performing actions and obtaining the necessary signatures or assignments required to obtain such letters patent, trademarks, service marks, or copyrights. In the event VOW shall be unable for any reason to obtain your signature on any document necessary for any purpose set forth in the foregoing sentence, you hereby irrevocably designate and appoint VOW and its duly authorized officers and agents as VOW’s agent and VOW’s attorney-in-fact to act for and in VOW’s behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by you.
4.8 VOW acquires no right, title or interest in or to any of Your Data. You hereby grant to VOW the right to use Your Data as necessary to implement and the VOW Programs and perform the Services. VOW reserves the right to use data analytics to analyze data across all of VOW’s customers, and any information, patterns discovered, and data generated from use of such analytics shall be owned by VOW. Any such data will be anonymized and/or used only for aggregated statistics and reports and to optimize VOW systems and product and service offerings. VOW shall not (a) modify Your Data except as directed by you, (b) disclose Your Data except as required by law or as expressly permitted in writing by you, or (c) access Your Data except to provide the Services.
4.9 In the event a third-party vendor is acquired, goes out of business or retires a product that VOW supplies to you, VOW may substitute such third-party product with a functionally equivalent product, in VOW’s sole discretion and VOW shall support such substituted product on the same terms and conditions as provided in the Services.
5.1 By virtue of this Agreement, the Parties may have access to information, documentation, materials and data, which may be disclosed or made available from any source or in any form, including, without limitation, paper record, oral communication, audio recording, electronic media, electronic display or electronic transmission, relating to their respective business, financial information, employees, your patients, programs, documentation, techniques, trade secrets, systems and know-how that is confidential or proprietary to one another (“Confidential Information”). We each agree to access and disclose only information that is required for the performance of obligations under this Agreement. Except for Protected Health Information or any data that identifies or could be used to identify an individual, a party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. During the term of this Agreement and at any time thereafter, VOW shall not reproduce or use your Confidential Information for any purpose other than VOW’s performance of the Services or its other duties or obligations to you under this Agreement, without your prior written consent. Also, we each agree to disclose Confidential Information only to those employees or agents who need access to that Confidential for VOW to perform the Services and its other duties and obligations under this Agreement and who are bound in writing to protect it against unauthorized disclosure in a manner no less protective than under this Agreement. VOW will protect the confidentiality of your data residing in the SAAS License environment in accordance with the VOW security practices specified in the Agreement and the BAA. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law. In such event, the recipient shall provide prior written notice to the discloser, to the extent not prohibited by law and shall cooperate with the discloser in any attempt to obtain a protective order with respect to such Confidential Information.
5.2 The Parties acknowledge and agree that any actual or threatened violation of this Article 5 may give rise to irreparable injury to the other Party and that such other Party may, in addition to any other legal or equitable rights or remedies which may be available, seek and obtain injunctive relief against the breaching party. This Section 5 shall remain in full force and effect after the expiration or termination of this Agreement.
TERM, TERMINATION, EVENTS OF DEFAULT
6.1 The initial term of this Agreement shall be as specified in the Sales Order and shall automatically renew for additional one (1) year periods at the then current price for the VOW Programs and Services unless terminated by written notice provided by you or VOW no later than sixty (60) days prior to the expiration of the initial term or any renewal term, or unless this Agreement is otherwise terminated in accordance with its terms. The term of the VOW Programs and Services and any renewal years are collectively defined as the “Term.” Sales contract terms for monthly and annual recurring fees are effective upon first invoice date. At the end of the Term, all rights to access or use the VOW Programs and the Services set forth in the Sales Order, shall end, subject to the transition services provisions of this Agreement. If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written notice explaining in sufficient detail the basis of the breach, then the breaching Party is in default and the non-breaching Party may terminate the applicable Sales Order under which the breach occurred. If VOW ends the Sales Order as specified in the preceding sentence, you must pay within 30 days all undisputed fees which have accrued prior to such end, as well as all sums remaining unpaid under the Sales Order under this Agreement plus related taxes, to the extent applicable, and expenses. If VOW ends the Services under the Indemnification section, you must pay within 30 days the 100% of the balance of all outstanding, unpaid remaining license fees due over the term of the Sales Order, plus related taxes and expenses. The non-breaching Party may agree in its sole discretion to extend the 30-day period for so long as the breaching Party continues reasonable efforts to cure the breach. You agree that if you are in default under this Agreement, you may not use the VOW Programs and VOW shall have no further obligation to support any VOW Programs. In addition, VOW may immediately suspend your password, account, and access to or use of the VOW Programs (i) if you fail to pay VOW as required under this Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within Sections 2.1, 2.3, 2.5, 3.1, 3.2, 4.5, 4.6, 5.1 and 5.2 of this Agreement. VOW may terminate the Services and access to the VOW Programs if any of the foregoing is not cured within 30 days after VOW’s initial notice thereof. Any suspension by VOW of the Services and access to the VOW Programs under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement. At your request, and for a period of up to 60 days after the termination of the applicable Sales Order, VOW may permit you to access the VOW Programs \ solely to the extent necessary for you to retrieve a file of your data then in such VOW Programs environment.
6.2 This Agreement may be terminated by VOW for insolvency of Client including, but not limited to, filing of a voluntary petition in bankruptcy, filing of a petition to declare bankrupt, appointment of a receiver or trustee, or execution of an assignment for the benefit of creditors.
6.3 You agree and acknowledge that VOW has no obligation to retain your data and that your data will be handled in accordance with the Business Associate Agreement entered between you and VOW (the “BAA”). Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive or are otherwise expressly stated to survive.
6.4 For the avoidance of doubt, in the event that VOW terminates this Agreement due to your default before the end of the term set forth in the Sales Order or you terminate this Agreement other than for VOW’s material breach of this Agreement, prior to the end of the term set forth in the Sales Order, you shall pay to VOW a termination fee equal to one hundred percent (100%) of the remaining unpaid license fees due under this Agreement set forth in the Sales Order.
6.5 Any invoice, or portion thereof, unpaid thirty (30) days or more following the invoice date is subject to a late charge of one- and one-half percent (1.5%) per month or such maximum amount as is permitted by applicable law.
6.6 If you fail to remit payment for an invoice to VOW in accordance with the above terms for more than thirty (30) days following the invoice date, VOW may, in its sole discretion, either permanently or until payments due are received, terminate its obligations under this Agreement without any further obligation. Such right of discontinuance of service shall be in addition to any other rights which VOW may have at law or in equity.
6.7 Notwithstanding anything to the contrary in this Agreement, termination of this Agreement shall neither relieve Customer of any accrued obligations to pay money to VOW nor entitle Customer to any refund of fees for VOW software licenses or other amounts paid hereunder.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage, cyber-attack, malware and/or ransomware, that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event, provided that each of the foregoing is outside the reasonable control of the obligated party. The Party whose performance is affected by the force majeure event will use commercially reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This Section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the VOW Programs and the Services.
8.1 SERVICES PROVIDED BY VOW TO CUSTOMER HEREUNDER ARE PROVIDED ON “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. CUSTOMER ACKNOWLEDGES THAT NEITHER VOW NOR ANY OF ITS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND AGENTS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING ANY SERVICES HEREUNDER MAKES ANY GUARANTIES OR WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT OF THIRD-PARTY RIGHTS.
8.2 For VOW Programs licensed pursuant to the SAAS License, VOW warrants that it will provide you with access to such VOW Programs in accordance with the SLA referenced in the Sales Order. If you did not receive access to the VOW Programs provided at any time during any given month during the SAAS License, you must provide written notice to VOW as specified in the ordering document no later than five business days after the last day of that particular month or within such other period stated in the Sales Order.
VOW DOES NOT GUARANTEE THAT THE VOW PROGRAMS PROVIDED PURSUANT TO THE SAAS LICENSE WILL BE ERROR-FREE OR THAT ACCESS TO SUCH VOW PROGRAMS WILL BE UNINTERRUPTED, OR THAT VOW WILL CORRECT ALL ERRORS. YOU ACKNOWLEDGE THAT VOW DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE ACCESS TO THE VOW PROGRAMS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WITHOUT LIMITING ANY OTHER PROVISIONS OF THE AGREEMENTS, VOW IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. FOR ANY BREACH OF THE ABOVE WARRANTIES CAUSED BY VOW OR ITS SUPPLIERS OR SUBCONTRACTORS, VOW WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT THREE AND ONE-HALF PERCENT (3.5%) OF NET MONTHLY FEES FOR EACH DAY DURING THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SAAS LICENSE FEES OWED TO VOW, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND VOW’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3 The VOW Programs provided under an End User License have been designed to perform a given set of tasks as defined in the Program Documentation and are provided and “AS IS.” You must determine that the VOW Programs are suitable for your requirements and must confirm that the VOW Programs operate correctly. You understand that the VOW Programs are of such complexity that there may be inherent defects and that VOW makes no warranty that all VOW Program features will perform correctly as supplied. VOW shall not be responsible for damage to any device or damage caused by any device due to your use of the VOW Programs. VOW makes no other warranty with respect to the VOW Programs.
VOW DOES NOT GUARANTEE THAT THE VOW PROGRAMS PROVIDED UNDER AN END USER LICENSE WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT VOW WILL CORRECT ALL VOW PROGRAM ERRORS. FOR ANY BREACH OF VOW’S OBLIGATIONS UNDER THIS AGREEMENT, YOUR EXCLUSIVE REMEDY, AND VOW’S ENTIRE LIABILITY, SHALL BE THE CORRECTION OF VOW PROGRAM ERRORS THAT CAUSE BREACH OF THE WARRANTY, OR IF VOW CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END YOUR PROGRAM LICENSE AND PAY ALL OUTSTANDING LICENSE AND SERVICES FEES INCURRED PRIOR TO THE DATE OF SUCH TERMINATION. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.4 You hereby indemnify and hold harmless VOW, its officers, agents, employees, subsidiaries, parents, affiliates and insurers from and against any and all liabilities, damages, losses, claims, lawsuits (including for medical malpractice), including costs and expenses in connection therewith, for death or injury to any persons or loss of any property whatsoever, caused in any manner by your use of the VOW Programs. In addition, if a third party makes a claim against either you or VOW (“Recipient” which may refer to you or VOW depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or VOW (“Provider” which may refer to you or VOW depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following: notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law); gives the Provider sole control of the defense and any settlement negotiations; and gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects VOW’s ability to meet its obligations under the relevant Sales Order, then VOW may, at its option and upon 30 days prior written notice, terminate the Sales Order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or Services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink). VOW will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by VOW. VOW will not indemnify you for infringement caused by your actions against any third party if the Services as delivered to you and used in accordance with the terms of this Agreement would not otherwise infringe any third-party intellectual property rights. VOW will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of this Agreement. This Section provides the parties’ exclusive remedy for any infringement claims for damages.
LIMITATION OF LIABILITY
VOW AND ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND AGENTS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, COST, DAMAGE, OR OTHER INJURY, OF ANY KIND WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY: (I) CUSTOMER USE OF, INABILITY TO USE, OR RELIANCE ON, ANY PART OF THE VOW PROGRAMS LICENSED OR THE SERVICES PERFORMED HEREUNDER, (II) ANY ERRORS OR OMISSIONS RESULTING FROM THE VOW PROGRAMS LICENSED OR THE SERVICES PROVIDED, BY VOW HEREUNDER, OR (III) VOW OR ANY OTHER PERSON’S PERFORMANCE OF ANY OBLIGATIONS UNDER OR IN CONNECTION WITH THE TERMS AND CONDITIONS HEREUNDER. IN NO EVENT WILL VOW OR ANY OF ITS MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL VOW’S LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR OTHERWISE SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO VOW FOR THE VOW PROGRAMS AND THE SERVICES UNDER THE SALES ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST VOW SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
10.1 VOW is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
10.2 You shall obtain at your sole expense any rights and consents from third parties necessary for VOW and its subcontractors to perform the Services under this Agreement.
10.3 This Agreement is governed by the substantive and procedural laws of Pennsylvania and you and VOW agree to submit to the exclusive jurisdiction of, and venue in, the appropriate state or federal court in Pittsburgh, PA., in any dispute arising out of or relating to this Agreement.
10.4 If you have a dispute with VOW or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Virtual OfficeWare (DE), LLC, 2000 Cliff Mine Rd., Park West Two, Suite 510, Pittsburgh, PA 15275 Attention: CEO. VOW may give notice applicable to VOW’s software as a service customer base by means of a general notice on the VOW portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in VOW’s account information.
10.5 You may not assign this Agreement or give or transfer the VOW Programs or Services or an interest in them to any third party without the prior written consent of VOW, such consent not to be unreasonably withheld.
10.6 Except for actions for against you for nonpayment of any amount due hereunder or for breach of VOW’s proprietary rights, no action, regardless of form, arising out of correlating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
10.7 VOW may audit your use of the VOW Programs and/or Services. You agree to cooperate with VOW’s audit and provide reasonable assistance and reasonable access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to sign additional sales orders for users and software licenses in excess of the scope of your license from VOW and if you do not do so within 30 days of written notification VOW may increase your license, maintenance and support costs under this Agreement automatically and you will pay all fees applicable to your use of the VOW Programs and/or Services in excess of your rights. If you do not pay such fees, VOW can end your access to the VOW Programs under a SAAS License, discontinue support for VOW Programs licensed under an End User License and terminate the provision of Services under this Agreement. You agree that VOW shall not be responsible for any of your costs incurred in cooperating with the audit.
10.8 You understand that VOW’s business partners, including any third-party firms retained by you to provide computer consulting services, are independent of VOW and are not VOW’s agents. VOW is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a VOW subcontractor on an engagement ordered under this Agreement.
10.9 VOW may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the VOW Programs and to help resolve your VOW service requests. The Tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools may also be used to assist in managing VOW’s product and service portfolio and for license management and in any event will be used in accordance with the restrictions on Customer Data in this Agreement. You agree that (a) except as set forth in the following paragraph, you may not access or use the Tools, and (b) you will not use or restore the Tools from any tape backup at any time following termination of this Agreement. If VOW provides you with access to or use of any Tools in connection with the VOW Programs, your right to use such Tools is governed by the license terms that VOW specifies for such Tools; however, if VOW does not specify license terms for such Tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of this Agreement. Any such Tools are provided by VOW for your usage on an “as is” basis and VOW does not provide technical support or offer any warranties for such Tools. Your right to use such Tools will terminate upon the earlier of VOW’s notice, the end of the license term, or the date that the license to use such Tools ends under the license terms specified for such Tools.
10.10 VOW may compile statistical information related to the performance of the VOW Programs, and may make such information publicly available, provided that such information does not require access to or otherwise incorporate any information that identifies or could be used to identify and individual person, including, without limitation, Protected Health Information as defined by HIPAA, your data and/or identify your confidential information or include your company’s name, does not violate the HIPAA Security Regulations and is in compliance with the BAA. VOW retains all intellectual property rights in such information.
10.11 The VOW Programs or Services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. VOW is not responsible for any third-party Web sites or third-party content provided on or through the VOW Programs or Services and you bear all risks associated with the access and use of such Web sites and third-party content, products and services.
10.12 You agree (i) that VOW may identify you as a recipient of VOW Programs and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by VOW for promotional purposes, in each case with your prior written approval, which you shall not unreasonably withhold.