Terms and Conditions
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings specified below:“Account” means a unique account established by Customer to enable its Users to access and use the Services.
“Account Administrator” is an User who is assigned and expressly authorized by Customer as its agent to manage Customer’s Account, including, without limitation, to configure administration settings, assign access and use authorizations, request different or additional services, provide usage and performance reports, assist in third-party product integrations, and to receive privacy disclosures.
““Affiliate” of a Party means any entity that the Party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.
“CareAR” means CareAR, Inc., a Delaware corporation.
“Confidential Information” means (a) for CareAR and its Affiliates, the Services and Documentation; (b) for Customer and its Affiliates, Customer Data; (c) any other information of a Party or its Affiliates that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure to the Party, including its Affiliates, receiving Confidential Information (“Recipient”) (and, in the case of oral disclosures, summarized in writing and delivered to the Recipient within thirty (30) days of the initial disclosure), or that due to the nature of the information the Recipient would clearly understand it to be confidential information of the disclosing Party; and (d) the specific terms and conditions of this Agreement between the Parties. Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Agreement by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of or reference to the disclosing Party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
“Customer” means the customer that is entering into this Agreement to use the Services.
“Customer Data” means any content, materials, data and information that Customer or its Users enter, share or provide using the Services.
“Documentation” means CareAR’s then-current technical and functional documentation for the Services as made generally available by CareAR.
“Indemnified Parties” means, as the case may be, the Party (whether CareAR or Customer) being indemnified for a third-party claim, including its employees, directors, agents, and representatives.
“Indemnifying Parties” means the Party (whether CareAR or Customer) that is providing indemnification.
“Order” means an Order Form for the Services. Orders may be submitted by hard copy or electronic means and those submitted electronically will be considered: (a) a “writing” or “in writing;” (b) “signed” by the Customer; (c) an “original” when printed from electronic records established and maintained in the ordinary course of business; and (d) valid and enforceable.
“Order End Date” means the end date of the applicable Order as defined in that Order.
“Order Form” means the order form provided by CareAR that sets forth the pricing and options of the Services selected by Customer.
“Order Start Date” means the start date of the applicable Order as defined in that Order.
“Service(s)” means the CareAR Software as a Solution Service identified on the Order and obtained by Customer pursuant to this Agreement.
“Terms of Service” means CareAR’s General Terms of Service that apply to Users of the Service available at: https://carear.com/terms-of-service/.
“User” means an individual natural person, whether an employee, business partner, contractor, or agent of Customer or its Affiliates who is authorized by Customer or its Affiliates to use the Services.
2.Usage and access rights
Restrictions. As between Customer and CareAR, Customer is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, and written or audible communications submitted by any User or otherwise processed through its Account or under any Order. Customer will not, directly or indirectly (i) misappropriate or infringe CareAR’s intellectual property rights, (ii) reverse engineer, decompile, disassemble, disclose or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (iii) modify, translate, or create derivative works based on the Services or Documentation (iv) use the Services for purposes of a third party or otherwise for the benefit of a third party other than Customer and/or Customer’s Affiliates as permitted hereunder; or (v) use or view the Services for the purposes of developing, directly or indirectly, a product or service competitive to the CareAR Services.
Suspension of Access. CareAR may suspend any use of the Services or remove or disable any Account or content that CareAR reasonably and in good faith believes violates this Agreement.
CareAR Services. CareAR, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder.
Feedback. CareAR will consider anything Customer or its Users provide to CareAR, including feedback, ideas, or suggestions and/or contributions to CareAR’s services as available for CareAR’s use free of any obligations to Customer. Under no circumstances will CareAR pay Customer for the use of Customer’s feedback, ideas or submissions.
Security. CareAR will use commercially reasonable industry standard security technologies in providing the Services. CareAR has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, to preserve the security, integrity, and confidentiality of Customer Data and personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to personal data.
Use of Aggregate Data. Customer agrees that CareAR may collect, use, and disclose quantitative data derived from the use of the Services for its business purposes, including industry analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be in aggregate and deidentified form only and will not identify Customer, its Users, Customer Data, or any third parties utilizing the Services.
5.Payment and taxes
Fees. Except as expressly set forth in the applicable Order, Customer will pay all fees set forth in the Order in accordance with the following: (a) Services fees are invoiced annually in advance (b) payment will be due within thirty (30) days from the date of the invoice; (c) payment will be in the form of check, Automated Clearing House debit, Electronic Funds Transfer, or direct debit from Customer’s bank account; and (d) all amounts will be denominated in U.S. dollars. Customer agrees to pay CareAR all undisputed amounts due under each invoice via check, Automated Clearing House debit, Electronic Funds Transfer, or direct debit from Customer’s bank account within thirty (30) days after the invoice date.
Purchase Orders. If Customer issues a purchase order, then it shall be for the full amount set forth in the applicable Order, and CareAR hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer, and conditions assent solely based on the terms and conditions of this Agreement as offered by CareAR. Upon request, CareAR shall reference the purchase order number on its invoices, provided, however, that Customer acknowledges that it is Customer’s responsibility to provide the corresponding purchase order information (including a purchase order number) to CareAR upon the signing of any Order.
Late Charges; Attorneys’ Fees. Restrictive covenants submitted for or with payment to indicate that it is in full satisfaction of an invoice will not operate as an accord and satisfaction to reduce Customer’s payment obligations if it is not, in fact, full payment. CareAR may assess late charges equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law. Customer will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by CareAR to collect any amounts that are not paid when due. If Customer fails to timely pay any amounts due under this Agreement, then without limitation of any of its other rights or remedies, CareAR may suspend performance of those Services until CareAR receives all past due amounts from Customer.
Taxes. All fees under this Agreement exclude taxes and Customer agrees to pay all applicable taxes arising from this Agreement (“Taxes”) in a timely manner, other than CareAR’s income. Taxes include, but are not limited to, taxes, levies, duties, customs, valued added taxes, sales taxes, use or withholding taxes, or any other similar government assessment of any nature. If Customer is tax-exempt, Customer will provide CareAR with a valid tax exemption certificate. If CareAR is required to invoice or collect Taxes associated with Customer’s purchase of, payment for, access to or use of the Services, CareAR will issue an invoice to Customer including the amount of those Taxes, itemized where required by law.
6.Term and termination
Agreement Term. The term of this Agreement shall be effective as of the date this Agreement is accepted by CareAR (“Effective Date”) and continues on a month-to-month basis thereafter until terminated by either party upon thirty (30) days’ written notice. Each Order shall have its own term as noted below.
Orders. The term of an Order is the period of time, including all renewals thereto, that begins on the Order Start Date and, unless terminated sooner as provided herein, will continue until the Order End Date (collectively, the “Term of an Order”). Each Order is non-cancellable and non-refundable except as provided in this Agreement. Termination or expiration of any Order shall leave other Orders unaffected. Unless Customer provides notice in writing at least thirty (30) days before the end of the Term of an Order of its intention not to renew, the Order will renew automatically on an annual basis on the same terms and at the then-current pricing.
Post-Termination Obligations. If this Agreement or Order expires or is terminated for any reason: (a) Customer will pay to CareAR any amounts that have accrued before, and remain unpaid as of, the effective date of the expiration or termination; (b) CareAR’s obligation to provide any further services to Customer under this Agreement will immediately cease and (c) the Parties’ rights and obligations relating to limitation of liability, indemnification, payment, miscellaneous and others which by their nature are intended to survive shall survive termination.
Restricted Use and Nondisclosure. During and after the Term of the Agreement, Recipient will: (a) use the Confidential Information of the other Party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other Party or the terms of this Agreement, Recipient will give prompt written notice to the other Party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and cooperate with the disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
Ownership. Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
Remedies. Recipient acknowledges that any actual or threatened breach of this Section may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party is entitled to seek injunctive relief in addition to all remedies available to the disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches.
8.Warranties and disclaimers
CareAR Service Warranties. CareAR warrants that during the applicable Term, the Services, when used as authorized under this Agreement, will perform substantially in conformance with the Documentation associated with the applicable Services. Customer’s sole and exclusive remedy for any breach of this warranty by CareAR is for CareAR to use commercially reasonable efforts to remedy the deficiency.
Mutual Warranties. Each Party represents and warrants that: (a) it is duly organized and validly existing and in good standing under the laws of the state or country of its incorporation or formation; (b) this Agreement and each Order has been duly authorized by all appropriate corporate action for signature; and (c) the individual signing this Agreement and each Order is duly authorized to do so.
DISCLAIMER. Customer’s access to and use of the Service is at your own risk. Customer understands and agrees that the Service is provided to Customer on an “AS IS” and “AS AVAILABLE” basis. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT OR IN AN ORDER, CAREAR: (A) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND — WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY — AS TO ANY MATTER WHATSOEVER; (B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; AND (C) DOES NOT WARRANT THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CAREAR TO ANY THIRD PARTY.
By CareAR. CareAR will indemnify and defend Customer’s Indemnified Parties against any loss, damage or costs (including, but not limited to, reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against a Customer’s Indemnified Party by a third party alleging that Customer’s use of the Services provided by CareAR under this Agreement infringes, misappropriates or violates a U.S. patent, copyright or other intellectual property right. If CareAR has reason to believe that it would be subject to an injunction or continuing damages based on a claim or allegation that the Services infringe, misappropriate or violate the intellectual property rights of a third party, then CareAR may, at its option and expense, replace or modify the Services with substantially equivalent services or replacement services so that such Services are no longer infringing, or obtain for Customer the right to continue using the Services. If neither of the foregoing is commercially practicable, CareAR may cancel the Services and terminate this Agreement and applicable Orders and reimburse the appropriate party for any prepaid but unused Services as of the date of termination. Notwithstanding the foregoing, CareAR shall have no liability for a claim of infringement or misappropriation to the extent caused by (a) Customer’s continued use of Services after CareAR notifies Customer to stop using the Services, (b) the combination of Services with any other service, software, data or products not provided by CareAR, which claim would have been avoided if the Services had not been so combined, or (c) the use of any material provided by Customer including Customer Data. THE FOREGOING IS CAREAR’S SOLE AND EXCLUSIVE LIABILITY, AND CAREAR’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
By Customer. Customer will indemnify and defend CareAR’s Indemnified Parties against, any Claim to the extent arising from or related to: (a) use of the Services by Customer or its Account Administrator or Users in violation of this Agreement, the Documentation, or applicable law; or (b) any breach by Customer of its obligations under this Agreement.
Procedures. The Parties’ respective indemnification obligations above are conditioned on: (a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties); (c) the relevant Indemnified Parties providing assistance in connection with the defense and settlement of the Claim, as the Indemnifying Party may reasonably request; and (d) the Indemnified Parties’ compliance with any settlement or court order made in connection with the Claim. The Indemnifying Party is not responsible for any litigation expenses of the Indemnified Party or any settlements unless it preapproves them in writing.
10.Limitations of liability
Exclusion of Damages. EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER THE SECTION TITLED (INDEMNIFICATION), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
Limitation of Liability. EXCEPT FOR: (A) THE PARTIES’ OBLIGATIONS UNDER THE SECTION TITLED (INDEMNIFICATION); (B) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND/OR (C) EITHER PARTY MISAPPROPRIATING OR INFRINGING THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AS GRANTED UNDER THIS AGREEMENT, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (OR THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICE(S) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
Governing Law. This Agreement, Terms of Service and each respective Order, and any dispute or claim arising out of or in connection with this Agreement, Terms of Service or such Order, shall be governed by and construed in accordance with the laws of New York without regard to its conflict of laws provisions and submitted to the exclusive jurisdiction of the federal and state courts of New York. In any action to enforce this Agreement, Terms of Service or any Order hereunder, the Parties agree to waive their right, if any, to a jury trial.
Independent Contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as set forth in this Agreement, nothing in this Agreement, expressed or implied is intended to give rise to any third-party beneficiary.
Assignability. CareAR may assign this Agreement in whole or in part (i) to an Affiliate; (ii) in connection with a merger where CareAR does not survive such merger, or (iii) in connection with the sale of all or substantially all of CareAR’s assets related thereto. Except as expressly stated in this Section, neither Party may assign its rights or obligations under this Agreement without obtaining the other Party’s prior written consent. Any assignment in contravention of this section is void.
Notices; Communication. Any notice with respect to termination, indemnification, default, breach, dispute resolution, and warranty claims, approval or consent required or permitted hereunder (specifically excluding any invoices or disputed invoices and communications per sub-section(b) below) shall be in writing and will be deemed to have been given upon receipt or refusal if: (i) delivered personally, by courier or by express service, or (ii) mailed by registered or certified mail postage prepaid, to the respective addresses of the parties set forth below or as may be otherwise designated by like notice from time to time:
|If sent to CareAR:
5830 Granite Parkway #100, Suite 355
Plano, Texas 75024
Attention: Office of General Counsel
|If sent to Customer, to the address and contact person for Customer identified on the first page of the Order Form.
Customer authorizes CareAR or its agents to communicate with CareAR by any electronic means (including cellular phone, email, automatic dialing, recorded messages or using the Services) using any phone number (including cellular) or electronic address that Customer provides to CareAR.
Force Majeure. Neither Party shall be liable to the other Party during any period in which its performance is delayed or prevented, in whole or in part, by a “Force Majeure Event” (defined as any cause or circumstance beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, act of a public enemy or terrorist, act of sabotage, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, strike or other labor dispute, riot, inability to secure materials and/or transportation, a restriction imposed by legislation, an order or a rule or regulation of a governmental entity, or other similar causes). If such a circumstance occurs, the party whose performance is delayed or prevented shall undertake reasonable action to notify the other party thereof.
Anti-Corruption. In connection with the services performed under this Agreement and Customer’s use of CareAR’s products and services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
Export Compliance. The Services and Documentation may be subject to export and sanctions laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use the Services or Documentation in a U.S. embargoed country (currently, Cuba, Iran, North Korea, Syria or the Crimea) or in violation of any U.S. export or sanctions law or regulation.
Publicity. Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Service unless the prior written consent of the other Party has been obtained, provided, however, that CareAR may use Customer’s name and logo for the limited purpose of identifying Customer as a customer of the Service.
Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
Severability. If any provision of this Agreement is found to be illegal, unenforceable, or invalid by any court order under applicable law, (a) such provision shall be deemed to be restated as nearly as possible to reflect the original intention of the Parties in accordance with applicable law, and (b) the remaining provisions of this Agreement will remain in full force and effect. If any provision is held invalid by any arbitrator or any court under applicable law. The remainder of this Agreement shall remain in full force and effect.
Entire Agreement. This Agreement (including all Orders, Terms of Service, schedules, attachments, exhibits and amendments hereto) is the final, complete, and exclusive expression of the agreement between the Parties regarding the Services provided under this Agreement. This Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Services under this Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. This Agreement may be changed only by a written agreement signed by an authorized representative of both Parties. In the event of a conflict between or among any provision of this Agreement, Terms of Service or an Order Form, the conflict shall be resolved in the following order: Order Form, Agreement and Terms of Service.