THIS subscription services agreement (the “AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF hc1 PROVIDERVIEW.
YOU AGREE TO THE TERMS OF THIS AGREEMENT WHEN EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. IF YOU 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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES SIGNING AN ORDER FORM. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS BEFORE EXECUTING an order form.
Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them in the Support and Service Level Agreement posted at https://www.hc1.com/support/ .
This Agreement was last updated on June 7, 2018. It is effective between Customer and hc1.com Inc. (“hc1”) as of the date Customer accepts this Agreement which acceptance shall occur on the Effective Date of the first Order Form signed by Customer and hc1.
hc1 and Customer hereby agree as follows:
1. Subscription Subject to the terms and conditions of this Agreement and during the Term, hc1 shall make hc1 ProviderView (the “Service”) available to Customer solely for Customer’s and its Affiliates’ internal business operations. The terms of this Agreement shall also apply to updates and upgrades subsequently provided by hc1 to Customer. hc1 shall host the Service and may update the functionality and user interface of the Service from time to time in its sole discretion and in accordance with this Agreement or the Support and Service Level Agreement as part of its ongoing mission to improve the Service and Customer’s use of the Service. A broadband Internet connection is required for proper transmission of the Service. hc1 assume no responsibility for the reliability or performance of any networks.
Unless otherwise provided in the applicable Order Form, the Service is purchased as subscriptions. Subscriptions may be added during the Term at the same pricing as the underlying subscription pricing, prorated for the portion of the Term remaining at the time the subscriptions are added. Any added subscriptions will terminate on the same date as the underlying subscriptions. Subscriptions are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified in the Order Form, the Service may not be accessed by more than that number of Users purchased. Customer shall authorize access to and assign unique passwords and user names to the number of Users purchased by Customer on the Order Form. User passwords may not be shared with any other individual. A User identification may only be reassigned to a new individual replacing one who will no longer use the Service.
2. Order Forms. The Service shall be ordered by Customer or its Affiliate(s) pursuant to Order Forms. Each Order Form are attached hereto as Exhibit A and shall include at a minimum a listing of the Service and any hc1 Professional Services being ordered and the fees. Except as otherwise provided on the Order Form, each Order Form shall be subject to the terms and conditions of this Agreement.
3. Term and Termination, Fees, Payment & Taxes.
3.1. Term of Agreement. Unless otherwise specified on the Order Form or earlier terminated pursuant to Section 3.2, the term of this Agreement shall be for thirty-six (36) months commencing on the Effective Date of the first Order Form signed by Customer and hc1 (the “Initial Term”), and the Term shall be extended as set forth in subsequent Order Forms (each successive renewal term, a “Renewal Term” and, collectively, the “Term”). If Customer has not delivered an Order Form to hc1 regarding the upcoming Renewal Term prior to the expiration of the then current Term, the Term shall be automatically extended for successive Renewal Terms of thirty-six (36) months each, unless either party provides written notice of non-renewal to the other at least ninety (90) days before such expiration.
3.2. Termination. Either party may immediately terminate this Agreement and all Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement, which is not cured within thirty (30) days of written notice from the non-breaching party. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that hc1 shall be entitled to all of the fees, including without limitation the Subscription Fees, due under this Agreement for the then current Term. If this Agreement is terminated as a result of a breach on hc1’s part, hc1 shall refund the pro-rata portion of any Subscription Fees paid by Customer to hc1 under this Agreement for the terminated portion of the Term.
3.3.1. Suspension for Delinquent Account. hc1 reserves the right to suspend Customer’s access to and/or use of the Service for any accounts (i) for which any payment is due but unpaid but only after hc1 has provided Customer a delinquency notice, and at least thirty (30) days have passed since the transmission of the first notice (“Delinquent Account Status”), or (ii) for which Customer has not paid for the renewal term and has not notified hc1 of its desire to renew the Service by the End Date of the then-current term. The suspension is for the entire account and Customer understands that such suspension would therefore include Customer Affiliate sub-accounts. Customer agrees that hc1 shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section.
3.3.2. Suspension for Ongoing Harm. Customer agrees that hc1 may with notice to Customer (via phone, email or other written notice) suspend access to the Service if hc1 reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or Customer’s use of the Service is causing immediate, material and ongoing harm to hc1 or others. Customer further agrees that hc1 shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section.
3.4. Fees and Payment. Customer shall pay hc1 the fees for the Services (“Subscription Fees”), as specified in each Order Form. All payments shall be made in United States Dollars (USD). If Customer requests (and hc1 agrees) for hc1 to accept payments denominated in a foreign currency, a surcharge of 5%, at a minimum, will apply to each invoice. hc1 reserves the right to change the Subscription Fees and other charges included in an Order Form at any time during the Term of this Agreement by amending the Order Form(s) upon thirty (30) days’ prior written notice to Customer. Subscription Fees on all subsequent Order Forms and for all Renewal Terms shall be set at then current hc1 pricing. Unless otherwise specified in an Order Form, the Subscription Fees shall accrue and will be invoiced and due annually in advance.
3.5. Taxes. Subscription Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sale, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on hc1’s net income. If hc1 has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides hc1 with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.6. Late Payments. Late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.
4. Professional Services. Subject to the terms and conditions of the Agreement hc1 may provide Customer with professional services, activation, and/or training (the “Professional Services”) as set forth in the applicable Order Form or statements of work (each, a “Statement of Work” or “SOW’). Unless otherwise specified in an Order Form or SOW, fees for Professional Services and related expenses shall be invoiced by hc1 as incurred and shall be due upon receipt. Customer will cooperate with and assist hc1 in performing the Professional Services. Customer’s failure to do so will relieve hc1 of responsibility for any related deficiencies in its performance.
hc1 shall own all rights, title and interest in and to the work product or other deliverables and/or training materials to be provided to Customer and related intellectual property rights. Subject to terms and conditions of the Agreement and during the Term, hc1 hereby provides Customer with a limited, non-exclusive, non-transferable, non-sublicensable, and terminable license to use the deliverables and/or training materials solely for Customer’s internal
5. Screening for Viruses and Malicious Code. hc1 will use commercially reasonable measures, including generally accepted virus screening software, to protect the Service and its systems or software used from viruses and other malicious code. In the event that any viruses and other malicious code are discovered, they will be corrected pursuant to the provisions of this Agreement relating to support.
6. Disclaimer of Warranties. HC1 DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THE ACCURACY OF THE INFORMATION OR DATA IN THE SERVICE OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, THE AMAZON CLOUD, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY HC1. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS OTHERWISE STATED HEREIN, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
7. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN THIS SECTION 7 BELOW.
Except for a party’s indemnification obligations or fees due under this Agreement, the maximum liability one party may have to the other party whatsoever arising out of or in the connection with any license, use or other employment of the Service, shall in no case exceed the Subscription Fees paid by Customer to hc1 in the twelve (12) month period immediately preceding the filing of the claim. In no event shall this Agreement limit a party’s right to seek monetary damages and/or injunctive relief for misappropriation, theft, conversion or infringement by one party, directly or indirectly, of another party’s intellectual property rights.
8.1. Infringement. hc1 shall, at its own expense and subject to the limitations set forth in this Section, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall indemnify and hold Customer harmless from and against liability, damages and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.
Excluded from the above indemnification obligations are Claims to the extent arising from (i) use of the Service in violation of this Agreement or applicable law; or (ii) modifications to the Service or use of the Service in combination with any software, application or service made or provided other than by hc1.
If a Claim of infringement is brought or threatened, hc1 shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate this Agreement and refund to the Customer a pro-rata refund of the Subscription Fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 8.1 state hc1’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
8.2. Customer’s Indemnity. Customer shall, at its own expense and subject to the limitations set forth in this Section, defend hc1 from and against any and all Claims (i) alleging that any trademarks or service marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party; or (ii) arising out of Customer’s breach of Sections 10, Section 11 or Section 12 and shall indemnify and hold hc1 harmless from and against liability for any Losses to the extent based upon such Claims.
8.3. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement (provided that the indemnifying party shall make no admission of fault or wrongdoing or other statement reflecting negatively on the indemnified party without the indemnified party’s prior express written consent); and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party’s compliance with this Section 8.3 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section shall survive termination of this Agreement for one (1) year.
9. Customer’s Lawful Conduct. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Except as permitted by the Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by hc1. Customer shall not do any “mirroring” or “framing” of any part of the Service specific to the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies.
10. Transmission and Processing. Customer’s use of the Service may require the processing and transmission of Customer Data by Customer, hc1, or their subcontractors. hc1 is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks. Customer shall promptly notify hc1 of a loss or suspected loss or unauthorized access of the Customer Data. Without limiting Customer’s rights and remedies, Customer acknowledges that Customer Data and information regarding Customer’s account will be processed by hc1 and stored and processed using online hosting services selected by hc1, such as Amazon Web Services. hc1 may access, use, aggregate, and disclose Customer’s De-Identified Data alone or with that of other Users or customers of the Service, as well as other non-personal data in connection with improving the Service, establishing benchmarks and other uses which are not prohibited by law, provided that in no event may hc1 publish or disclose such data to third parties without removing Customer’s name, and all other information which could identify the Customer, from such data. As used herein, (i) “Customer Data” means all electronic data or information submitted to the Service by Customer or its Users; (ii) “De-Identification” or “De-Identified” mean the de-identification of data in accordance with 45 C.F.R. §164.514(a)-(c), as the same may be amended or succeeded from time to time, (iii) “De-Identified Data” means data that has been De-Identified, and (iv) “Electronic Communications” means any transfer of data or information electronically received and/or transmitted through the Service.
11. Confidentiality.For purposes of this Agreement, “Confidential Information” shall include the terms of the Agreement, Customer Data, each party’s proprietary technology, intellectual property, trade secrets, business processes and product information, designs and issues and any information (whether or not reduced to writing or designated as confidential). Confidential Information shall not include: (i) information which is known publicly; (ii) information which is generally known in the industry before disclosure; (iii) information which has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; (iv) information which the receiving party receives from a third party without a duty of confidentiality, where such third party had the lawful right to disclose such information to the receiving party; or (v) De-identified Data.
Each receiving party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information, except to the extent necessary to perform its obligations or exercise its rights under the Agreement or as directed by the disclosing party; (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to only make Confidential Information available to authorized persons of receiving party on a “need to know” basis. Receiving party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
12. Restrictions.Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with this Agreement. Customer’s use of the Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. Customer shall not and shall not permit any third party to: (i) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code of modify the Service in any manner or form; (ii) use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; (iii) use the Service in a manner that is contrary to applicable law or in violation of any third party rights or privacy or intellectual property rights; (iv) publish, post, upload or otherwise transmit Customer Data that contains any virus, Trojanhorses, worms, timebombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (v) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.
13. hc1 Intellectual Property Rights.Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by hc1 or its licensors. Except as provided in the Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, hc1 shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license (except for hc1’s right to terminate Customer’s subscription to the Service in accordance with this Agreement) to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer. Any rights not expressly granted herein are reserved by hc1. hc1 service marks, logos and product and service names are marks of hc1 (the “hc1 Marks”). Customer further agrees not to display or use the hc1 Marks in any manner without hc1’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
14. General Provisions. Neither party may assign this Agreement without written consent of the other; provided, however, hc1 (i) may assign this Agreement and delegate its obligations hereunder to any of its affiliates; or (ii) may assign this Agreement to a successor by way of merger or consolidation or the acquisition of substantially all of the business relating to the subject matter of this Agreement. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although hc1 reserves the right to name Customer as a User of the Service.
This Agreement, including all exhibits, addendums and/or Order Forms, shall constitute the entire understanding between the parties. The parties expressly disclaim any reliance on any and all prior discussions, emails, Requests for Proposals and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify this Agreement, regardless of any failure of hc1 to object to such terms, provisions or conditions.
This Agreement shall be governed in accordance with the laws of the State of Indiana and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in the Southern District of Indiana, Indianapolis Division. In the event of any litigation or any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of this Agreement. Neither party shall be liable for any loss or delay (including failure to meet the service level commitments) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving hc1 employees), Internet service provider failures or delays, civil unrest, war or military hostilities or criminal acts of third parties (collectively, a “Force Majeure Event”), and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any Force Majeure Event. Sections 3.4, 3.5, 3.6, 6, 7, 8, 9, 10, 11, 12, 13, and 14 of this Agreement and shall survive the termination or expiration of this Agreement.