THIS SUBSCRIPTION SERVICES AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. BY ACCEPTING THIS AGREEMENT WHEN EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF 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 Main Terms of Service, posted at https://www.hc1.com/terms-of-service/ or the Support and Service Level Agreement posted at https://www.hc1.com/support/.
This Agreement was last updated on May 7, 2019. It is effective between Customer and hc1.com Inc. 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 Service. Subject to the terms and conditions of this Agreement and any applicable Order Form(s), and during the Term, hc1 hereby grants to Customer a non-exclusive, terminable, non-transferable right and license to access and use the Services pursuant to the Agreement, in and under hc1’s intellectual property rights, solely for Customer and its Affiliates’ internal business operations and for no other use or purpose. hc1 shall provide standard Customer Care support for the Service at no additional charge, or provide upgraded Customer Care support if purchased, as set forth in an Order Form(s). The terms of this Agreement shall also apply to updates and upgrades subsequently provided by hc1 to Customer for the Service. 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, the Terms of Service or the Support and Service Level Agreement as part of its ongoing mission to improve the Service and Customer’s use of the Service.
Unless otherwise provided in the applicable Order Form, the Service is purchased as subscriptions under the foregoing license. 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 based on the quantities specified in the Order Form(s). Customer and its Affiliates shall not use or otherwise access the Services in a manner that exceeds Customer’s and/or Affiliates’ authorized use and usage limits as set forth in the applicable Order Form(s).
2. Order Forms. The Service shall be ordered by Customer or its Affiliate(s) pursuant to Order Forms. Each Order Form is attached hereto as “Exhibit A” and shall include, at a minimum, a listing of the Service and Professional Services being ordered and the fees therefor. Except as otherwise provided on the Order Form, each Order Form is only valid and binding on the parties when executed by both parties and shall be subject to governed by, and incorporates by reference the terms and conditions of this Agreement, the Terms of Service, and the Support and Service Level Agreement. For any order by Customer or its Affiliate(s) for the benefit of Customer’s Affiliate(s), the term “Customer” shall refer to Customer and such Affiliate(s).
3. Term, Fees, Payment & Taxes.
3.1 Term of Agreement. Unless otherwise specified on the Order Form or earlier terminated pursuant to Section 4 hereof, the term of this Agreement shall be for thirty-six (36) months commencing on the Effective Date (the “Initial Term”). Thereafter, 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 and hc1 have not approved an Order Form 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 Fees and Payment. Customer shall pay hc1 the fees for the Service (“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 minimum surcharge of 5% will apply to each invoice. hc1 reserves the right to change the Subscription Fees, Professional Services Fees, and other charges included in an Order Form at any time during the Term of this Agreement by amending the Order Form upon thirty (30) days’ prior written notice to Customer, by email or otherwise. Purchase of additional subscriptions of the Service, or purchase of additional Users during a Term, will co-terminate with and be prorated through the end of the then-current Term. 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.
3.3 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.
3.4 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. 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 or the Terms of Service, which breach is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail to provide the allegedly breaching party a meaningful opportunity to cure such alleged breach. Upon termination or expiration of this Agreement for any reason, Customer and/or its Affiliate(s) shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a material breach by hc1, 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.
5. Professional Services and Ownership of Deliverables. Subject to the terms and conditions of the Agreement and during the Term, Customer may contract with hc1 for Professional Services as outlined in a statement(s) of work (each, a “Statement of Work” or “SOW”). hc1 and Customer shall, from time to time, execute SOWs that specify the Professional Services to be provided to Customer hereunder. Unless otherwise specified in a SOW, fees for Professional Services (“Professional Services Fees”) 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. As a part of the Professional Services, and during the Professional Services engagement, hc1 may provide a test environment to Customer. The test environment will be disabled at the conclusion of the Professional Services engagement unless Customer contracts with hc1 for access to a test environment following the conclusion of the Professional Services engagement. The terms of the test environment and associated Subscription Fees will be outlined in an Order Form or SOW signed by Customer and hc1. Customer acknowledges that any test environment may include beta source code and/or configurations and is provided “AS IS.”
5.1 Change Control. In the event Customer or hc1 request a change in any of the specifications, requirements, Deliverables, or scope of the Professional Services described in a SOW, the party seeking the change shall propose the applicable changes by written notice. Within two (2) Business Days of receipt of the written notice, each party’s project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. hc1 will prepare a change order describing the proposed changes to the SOW and the applicable change in fees and expenses if any (each, a “Change Order”). Executed Change Orders shall be deemed part of, and subject to, this Agreement.
5.2 Project Deliverables and Tools. hc1 shall own all right, title, and interest in and to the work product or other deliverables and/or training materials to be provided to Customer hereinafter referred to as the “Deliverables” 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 (except in connection with an assignment, as set forth in Section 12.1 of this Agreement), non-sublicensable, and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the applicable Service. Notwithstanding any other provision of this Agreement to the contrary, nothing contained herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques, and expertise (“Tools”) used by hc1 to develop the Deliverables. To the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables. The term “Deliverables” shall not include the Tools.
6.1 Services Warranty. hc1 warrants that (a) it and each of its employees, consultants, and subcontractors, if any, hc1 uses to provide and perform Professional Services have the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Professional Services in accordance with this Agreement and any SOW, and (b) the Professional Services will be performed for and delivered to Customer in a good, diligent, workmanlike manner in accordance with industry standards and applicable laws and governmental regulations. If through no fault or delay of Customer the Professional Services do not conform to the foregoing warranty, and Customer notifies hc1 within sixty (60) days of hc1’s delivery of the Professional Services, Customer’s sole and exclusive remedy is to have hc1 re-perform the non-conforming portion(s) of the Professional Services.
6.2 Excluded Provider Warranty. Each party represents and warrants that it is not now and at no time has been excluded from participation in any federally funded health care program, including Medicare and Medicaid. Each party shall immediately notify the other of any actual exclusion from any federally funded health care program, including Medicare and Medicaid. Each party further represents and warrants that, to its knowledge, none of its employees are now excluded from participation in any federally funded health care program, including Medicare and Medicaid. In the event that either party is excluded from participation in any federally funded health care program during the Term of this Agreement, this Agreement shall, as of the effective date of such exclusion or breach, automatically terminate.
7. Business Associate Agreement. The parties shall comply with the terms and conditions of the Business Associate Agreement (“BAA”) made by and between the parties once signed. The parties shall further negotiate in good faith any amendments to the BAA to the extent necessary to comply with any changes to applicable laws and regulations.
8. 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 any viruses and other malicious code are discovered, they will be corrected pursuant to the provisions of this Agreement relating to support.
9. Disclaimer of Warranties. HC1 DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE OR TRANSMISSION OF CUSTOMER DATA TO/FROM THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. FURTHERMORE, HC1 DOES NOT REPRESENT 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, PROFESSIONAL SERVICES, AND DELIVERABLES PROVIDED TO CUSTOMER ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE AND/OR DELIVERABLE(S) OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. THE WARRANTIES STATED IN SECTION 6.1 ABOVE ARE THE SOLE REMEDIES FOR CUSTOMER, AND EXCLUSIVE OBLIGATIONS OF HC1 RELATED TO THE PROFESSIONAL SERVICES AND DELIVERABLES TO BE PERFORMED FOR AND DELIVERED TO CUSTOMER PURSUANT TO THIS AGREEMENT AND ANY SOW.
10. 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, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE BAA (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 10 BELOW.
Except with regard to amounts due under this Agreement, liability arising out of or in connection with the Service, any Professional Services or Deliverables, liability resulting from gross negligence or willful misconduct, or claims subject to indemnification as set forth in Section 11 hereof, 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, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed Three Million Dollars ($3,000,000). The maximum liability of hc1 to any person, firm or corporation whatsoever arising out of or in connection with any Professional Services or Deliverables shall be the amount paid by Customer for the Professional Services giving rise to the liability. The parties acknowledge that the limitations set forth in this Section 10 are integral to the amount of fees charged in connection with making the Service available to Customer and/or providing Professional Services and that, were hc1 to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
11.1 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. 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 the alleged 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 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 to Customer under this Section 11.1 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.
11.2 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 (a) alleging that the Customer Data or 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 (b) arising out of Customer’s breach of Sections 1.4 (Customer’s Lawful Conduct), 1.8 (Confidentiality) or 1.11 (Restrictions) of the Terms of Service, and shall indemnify and hold hc1 harmless from and against liability for any Losses to the extent based upon such Claims.
11.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall (a) promptly notify the indemnifying party in writing of such Claim, (b) 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 (c) 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 11.3 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.
12. General Provisions.
12.1 Assignment. Neither party may assign this Agreement without written consent of the other; provided, however, that hc1 may assign this Agreement and delegate its obligations hereunder to any of its affiliates, or to a successor, by way of merger or consolidation or the acquisition of substantially all of the business and/or assets relating to the subject matter of this Agreement, without Customer’s prior written consent. 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.
12.2 Governing Law; Jurisdiction; Venue. 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.
12.3 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 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.
12.4 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer when signing the Order Form or SOW. All other notices to Customer will be addressed to the relevant Service system administrator designated by Customer.
12.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
12.6 Third Party Beneficiaries. 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.
12.7 Non-Solicitation/Non-Hire. During the Term, Customer will not directly or indirectly solicit, employ or engage the services of any of the employees and/or contractors of hc1 who were involved in providing Professional Services under or relating to this Agreement without prior written permission of hc1.
12.8 Force Majeure. 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.
12.9 Entire Agreement. This Agreement, including all exhibits, addendums, Order Form(s), and/or SOW(s) shall constitute the entire understanding between Customer and hc1 and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, Requests for Proposals and/or agreements between the parties. Other than the attachments hereto, 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 not be modified or amended, except as expressly set forth herein or in the Terms of Service, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order Form. Notwithstanding the above, after execution of this Agreement, and during the electronic provisioning of Customer’s account, Customer may be presented with the requirement to “agree” to a click-through agreement pertaining to terms of service before Customer’s account can be successfully provisioned. Customer acknowledges that other click-through terms and agreements found at https://www.hc1/ or other similar URL shall apply in the event that such optional services are subsequently ordered or activated by Customer (i.e., hc1 Third Party Application Terms). Sections 3.2, 3.3, 3.4, 6, 9, 10, 11, Subsection 12.2, 12.3, 12.4, 12.5, 12.6, 12.8, and 12.9 of this Agreement and Sections 2.5, 2.6, 2.8, 2.9, 2.10, 3.3, and 7 of the Terms of Service shall survive the termination or expiration of this Agreement.