Compliancy Group LLC Reseller Agreement
This Agent Agreement (“Agreement”) is entered into by and between COMPLIANCY GROUP LLC (“Company”) and “Agent”.
WHEREAS, Company has developed certain computer programs, software, services, and related documentation referred to as “the “Products”, and WHEREAS, AGENT desires to resell or refer the Products in the United States.
NOW, THEREFORE, in consideration of the mutual covenants and promises made by the parties hereto, the Company and the Agent (individually, each a “Party” and collectively, the “Parties”) covenant and agree as follows:
SECTION 1: COST
A. If Agent has 5 or more active, paid, subscriptions or total billing in excess of $10,000 per year, Agent shall upon renewal receive one (1) “ENTERPRISE” version of The Guard™ software for no charge. If Agent falls below 5 active subscriptions, the annual rate applies.
SECTION 2: TERM AND TERMINATION
- Term of Agreement. This Agreement shall be effective for a period of one (1) year from the date of its execution (“Initial Year”). The Agreement shall thereafter Auto-Renew on an annual basis, unless either party provides notice of termination not less than thirty (30) days prior to end of the then-current term.
- Mutual Termination Rights. In the event that either party is in breach of any material obligation set forth in this Agreement, that party shall notify the other party in writing. If the breaching party has not cured its breach within sixty (60) days following such notice, then the other party may elect to terminate this Agreement. In the event of termination by Agent, Agent shall be entitled to a pro rata refund, and Company retains the right to continue to provide services to the Customer.
- Bankruptcy. If one of the parties is declared insolvent or bankrupt, either party may immediately terminate this Agreement.
- Company may terminate this Agreement for convenience with ten (10) days’ notice. If Company determines that Agent uses or seeks to use the Products in a manner that is unlawful, or that is inconsistent with Agent’s rights, duties, and obligations hereunder, Company may immediately terminate this Agreement.
SECTION 3: NEW OPPORTUNITY REGISTRATION
Agent shall notify Company in writing of a new potential subscription opportunity. Agent shall register the potential subscription opportunity. Company shall notify Agent as to whether the potential new subscriber is qualified. If the subscription opportunity is determined to be a “qualified new subscriber,” as defined in “Definitions,” below, the lead shall be registered and protected for ninety (90) days and shall expire thereafter. If Agent desires to extend, Agent is responsible for re-registering the potential subscriber.
Company retains the right to refuse any sale that does not meet the terms and conditions of this Agreement or local, state, and federal laws and regulations
SECTION 4: RESELLER PRICING AND PAYMENT TERMS
A. Agent may choose either Reseller Pricing or Referral Subscription Revenue Percentage Rate.
- RESELLER PRICING. Agent shall receive a twenty percent (20%) discounted price off the Company current pricing or a discounted price that is determined at the sole discretion of the Company.
Each new subscription will require a separate user agreement. Subscriptions for additional (secondary) sites will be charged at the “Additional Site” rate.
Agent may bundle the pricing within the Agent’s fee structure but is prohibited in any manner licensing the Company products for any price that is below The Guard™ List Pricing.
- REFERRAL SUBSCRIPTION REVENUE PERCENTAGE RATE. If Agent chooses to refer a new customer to Company, for a period of one (1) year from the time a Customer acquires a new Subscription, Agent shall be compensated at a referral subscription revenue percentage rate of twenty percent (20%) of the amount billed, or at a discounted price determined at the sole discretion of Company.
Company shall pay commissions due to Agent by the 15th day of each calendar month for all commissions earned in the prior calendar month. Earnings shall be based on paid and collected funds received by the Company.
- Payment Terms. All payments due to Company are due NET thirty (30) days. If Agent’s account is past due by 30 days, Company reserves the right to terminate access or collect the outstanding balance from the Customer.
SECTION 5: DUTIES AND OBLIGATIONS OF AGENT Agent shall perform its reseller obligations in a professional and business-like manner.
AGENT SHALL:
- Assign one individual Representative, to be responsible for fulfilling its obligations under Sections 5(B) and 5(C) hereunder.
- Stay current with respect to information and specifications concerning the Company Products and attend and participate in Company’s Training (See Section 6(C), below) with respect to the Products.
- Provide prompt, reliable, and competent assistance to Agent’s Customers with respect to the Products. Agent shall have in place a reporting and escalation process to regularly inform and report to Company any problems, as they relate to the Products. When selling The Guard™, Agent will have all Customers execute the Terms and Conditions and click-to-accept the License Agreement. Company shall have no liability to Agent in the event any prospective Customer refuses to agree to enter into a License Agreement and Terms and Conditions.
- Conduct its business in a manner that will reflect favorably on Company and the Products. Agent shall not engage in deceptive, fraudulent, misleading, illegal or unethical business practices, whether with respect to the Products or otherwise. Agent agrees to use good-faith efforts in the process of learning The Guard™, and during Company-provided training for The Guard™. In the event that Agent fails to complete The Guard™-related training or refuses to cooperate with Company in its provision of The Guard™-related training, Company reserves the right to terminate this Agreement.
- Agent shall not sell, refer or represent a product that is competitive to Company’s Products, including, but not limited to the Compliance Tracking Solution, The Guard™.
- Achieve and maintain the Seal of Compliance during the length of this Agreement.
- Collect all applicable sales taxes.
- Use its best efforts to promote the sale of the Products. Agent agrees to permit Company to review all of Agent’s promotion and advertising material for the Products prior to use thereof. Agent shall not use and shall withdraw and retract any promotion or advertising that Company finds unsuitable, or that is in breach of the terms of this Agreement.
- Ensure that its Customers pay promptly and if any Customer fails to pay an outstanding balance for one (1) month following the date upon which such charge was due, Agent shall inform Company to suspend performance to such Customer. Agent shall ensure that the Customer is aware that Company is not liable for damages incurred as a result of such suspension or termination.
- Ensure that Customers agree in writing to be responsible for all use or misuse of the Products by its authorized users using the user ID and password of the Customer. Customer and its authorized users are responsible for maintaining the security and confidentiality of all user IDs and passwords assigned to them for access to the Products.
- Ensure that Customers agree in writing that Company may terminate the license to the Products for conduct or convenience. If Company determines that Customer uses or seeks to use the Products in a manner that is inconsistent with the license or unlawful, such termination may be immediate.
- Inform Customers in writing that the Seal of Compliance illustrates to auditors, patients, and partners that an organization has taken the necessary steps toward achieving the relevant healthcare compliance, and has documentation to support its good faith efforts to achieve such compliance. The Company reserves the right to not issue the Seal of Compliance if Customer fails to satisfy the requirements of the Product methodology and processes. Company may refuse to issue the Seal of Compliance if, in its reasonable discretion, Company determines that Customer is not making good faith efforts in its use of the Products to achieve compliance.
- Carry reasonable insurance including: (i) worker’s compensation insurance in compliance with federal and appropriate state law; (ii) Commercial General Liability insurance on an occurrence basis providing single limit coverage in an amount of not less than $1,000,000 per occurrence; (iii) Errors and Omissions Liability with limits of liability of at least $1,000,000 per occurrence and $1,000,000 annual aggregate for a period of three years with a deductible not to exceed $10,000 or such reasonable and customary deductible amounts to be approved by the Company, which approval shall not be unreasonably withheld. All policies to which this Agreement applies shall include a waiver of subrogation and a requirement/acknowledgment of the insurance provider that no policy applicable to this Agreement shall be suspended or terminated without first providing the Company with written notice not less than thirty (30) days prior to such suspension or termination and, in the event the reason for such suspension or termination is non-payment of a premium, the insurance provider shall give the Company an opportunity, if Company desires to do so in its sole discretion, to pay such premium(s) to keep and maintain such policies in full force and effect. If Company does, in fact, make any such premium payment on behalf of the Agent, the Agent shall immediately reimburse the Company for the amount of such payment and other expenses incurred as a consequence of the Agent’s non-payment of premium(s).
- Pass along any refunds due under the Terms and Conditions to Customer after receiving such refund from Company.
- Comply with any applicable laws including, but not limited to, those concerning Customer payment, service terms, auto-renewals and the FTC endorsement guidelines.
- Shall attach the Company Terms and Conditions, a copy of which is attached hereto as Exhibit B, to the contract with its Customer and/or have it signed by all Customers.
SECTION 6: DUTIES AND OBLIGATIONS OF COMPANY
- Company will provide an Enterprise Version of The Guard™ Compliance Tracking Solution. A signed License Agreement and Terms and Conditions from each customer is required.
- Company will provide reasonable commercial and technical assistance to Agent as may be necessary and appropriate to assist Agent in effectively carrying out its obligations under this Agreement, and in the promotion and sale of the Products to Agent’s customers.
- Company will provide to Agent up to four (4) hours of product, sales, marketing, and services training. This training will be specific to Company Marketing Material, Product usage, configuration, management and updating. Company will provide sales support calls as needed. Company will provide implementation and support services to the end-user.
- If Agent has been issued and maintains the Seal of Compliance, Company will enter the Agent into the Alliance Marketplace and shall make good-faith, commercially reasonable efforts to introduce Agent to potential leads.
- Company retains the right to refuse any sale that does not meet the terms and conditions of this Agreement and/or the laws and regulations of state, federal and local laws and regulations.
SECTION 7: LICENSE
- Agent is hereby appointed as a nonexclusive reseller of the Products for sale in the United States pursuant to this Agreement. Agent accepts such appointment and agrees to serve as a reseller for the licensing of the Products to end-users as provided herein. This Agreement is not exclusive to Agent, and Company reserves the unrestricted right to sell, license, market, distribute, or grant to others the right to sell, license, market and distribute the Products and value-added versions thereof anywhere in the world. Agent may use the trademarks and trade names specified by Company in writing for normal advertising, selling, and promotion of the Products under this Agreement. Agent agrees that the trademarks, trade names, copyrights, patents, trade secrets, and all other intellectual property rights in the Products, whether or not registered, are and shall remain the sole property of Company, and shall not be used or modified by Agent except as stated above. Agent agrees not to remove any copyright notice from the Products.
- Product Changes. Company has the right to modify, alter, amend or delete from the Products at any time at its sole discretion, following at least thirty (30) days prior written notice to Agent.
SECTION 8: CONFIDENTIALITY
A. Protection of Confidential Information: Agent and its Customers shall not disclose to any third party during the term or after the termination or expiration of this Agreement, and shall keep confidential, all Confidential Information of the Company, protecting the confidentiality thereof with the same level of efforts that it employs to protect the confidentiality of its own proprietary and confidential information of like importance to it, and in any event, by reasonable means. Agent and its Customers may, however, disclose the Confidential Information of the Company to those of such party’s personnel engaged in a use permitted by this Agreement and with a need to know, provided that such personnel (i) are directed to treat such Confidential Information confidentially and not to use it other than as permitted by herein, or (ii) are subject to any legal duty to maintain the confidentiality thereof. Agent and its Customers shall not use the Confidential Information of the other party except as necessary in and during the performance of this Agreement, or as expressly permitted hereunder. Agent and its Customers shall be responsible and liable for any improper use or disclosure of any Confidential Information by such party’s officers, partners, principals, employees, agents or independent contractors (including individuals who hereafter become former partners, principals, employee agents or independent contractors). Agent and its Customers acknowledges that elements of the Confidential Information of Company, including, without limitation, The Guard, and the terms, conditions and fees under this Agreement, are trade secrets of Company.
B. Confidentiality Exceptions. The obligations of this Section shall not apply (i) to any Confidential Information for a period longer than it is legally permissible to restrict disclosure of that item of Confidential Information, or (ii) to any Confidential Information that a party can demonstrate was: (a) at the time of disclosure to such party, in the public domain or commonly known in either party’s industry; (b) after disclosure to such party, published or otherwise entered the public domain through no fault of such party; (c) in the possession of such party at the time of disclosure to it, if such party was not then under an obligation of confidentiality with respect thereto; (d) received after disclosure to such party from a third-party who had a lawful right to disclose such Confidential Information to it; (e) independently developed by such party without reference to Confidential Information of the other party; or (f) disclosed with the prior written approval of the other party.C. Required Disclosure. A party may disclose Confidential Information (including, as applicable, Customer data) to the extent required by law or by order of a court or governmental agency, provided, however, that the recipient of such Confidential Information shall give the owner of such Confidential Information prompt notice, and shall provide reasonable cooperation to the owner of such Confidential Information if the owner wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information. The owner of such Confidential Information reserves the right to obtain, and shall be solely responsible for obtaining, a protective order, order to quash, or other similar form of protection for the confidentiality of such Confidential Information.
C. Notification; Survival. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving party shall immediately notify the disclosing party. Notwithstanding anything in this Agreement to the contrary, the obligations of the parties set forth in this Section D with respect to Confidential Information will remain in effect during the term of this Agreement, and (i) with respect to Confidential Information that does not qualify as a trade secret under applicable law, for a period of three (3) years following the expiration or termination of this Agreement, and (ii) with respect to trade secrets, for so long as such Confidential Information remains a trade secret.
D. Security. Agent and its Customers will use all commercially reasonable (i.e., standard in the industry) efforts, to implement and maintain website security features and standards to protect the confidentiality and integrity of Company’s Confidential Information.
SECTION 9: LIMITED WARRANTY
A. Company warrants that it is the owner of or otherwise has the right to license the Products, and otherwise perform its obligations set forth herein. Company makes no other warranties herein.
B. Company will not be liable to Agent or its Customers for limitations, if any, in Company’s Products. Company is not responsible for loss of data in transmission, improper transmission by Customer, or failure by Customer or any third party to act on any communication transmission to or by Customer through the services.
SECTION 10: REMEDIES
A. If Agent commits a breach of any of the provisions of this Agreement pertaining to Confidentiality or Intellectual Property Rights, Company may terminate this Agreement. In the event of such breach, Company shall have, in addition to all other rights in law and equity: (a) the right to have such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach will cause irreparable injury to Company and that monetary damages will not provide an adequate remedy; and (b) the right to require Agent to account for and pay to Company all compensation, profits, monies or other tangible benefits (collectively “Benefits”) derived or received as the result of any transactions constituting a breach of any provision of this Agreement pertaining to Confidentiality or Intellectual Property Rights. Agent hereby agrees to account for and pay such Benefits.
B. Agent and its Customers shall to the fullest extent allowed by law, defend, indemnify, and hold harmless Company, and any third-party provider or contributor to the Products, from and against any and all claims and losses arising from Customer’s use of the Products, except that this indemnity shall not apply where such third-party claim or loss would not have occurred but for the gross negligence or willful misconduct of Company.
C. With respect to any claims to which the indemnification provisions of this Agreement apply, the parties shall comply with the following procedures: Promptly after receipt of notice by any entity entitled to indemnification under this Agreement of the commencement or threatened commencement of any claim in respect of which a party entitled to be indemnified hereunder (each an “Indemnified Party”) will seek indemnification under this Agreement, the Indemnified Party shall notify the party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) of such claim in writing. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this Agreement except to the extent that it can demonstrate that its rights have been prejudiced as a result of such failure. Provided that the Indemnifying Party promptly and appropriately performs its indemnification obligations hereunder, the Indemnifying Party shall be entitled to have sole control over the defense and settlement of such claim. The Indemnified Party shall provide reasonable cooperation (at the Indemnifying Party’s expense) and full authority to defend or settle the Claim. The Indemnifying Party shall keep the Indemnified Party fully informed about the status of any litigation, negotiations, or settlements of any such Claim. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with, counsel of its own choosing. The Indemnifying Party shall not have the right to settle any Claim if such settlement arises from or is part of any criminal action or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the Indemnified Party, unless the Indemnified Party provides prior written consent to such settlement.
SECTION 11: FORCE MAJEURE
Neither party shall be liable or deemed to be in default for any delay, failure in performance, or interruption of service under this Agreement resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party.
SECTION 12: DUTIES UPON TERMINATION
Provided termination is not a result of a material breach of the provisions of this Agreement pertaining to
Confidentiality or Intellectual Property Rights, the parties agree to continue their cooperation to effect an orderly termination of their relationship. Upon termination, Agent may not order or receive any additional copies of the Products, and all of Agent’s rights and licenses granted hereunder shall immediately cease. Within thirty (30) days of termination, Agent shall return all copies of any promotional materials, demonstration software, marketing literature, written information, reports, and any related information pertaining to the Products that have been supplied by Company.
Within thirty (30) days of termination of this Agreement, Company shall pay Agent all compensation due and owing for referrals made prior to the date of termination. Commissions shall be paid based on funds already paid and collected by Company.
SECTION 13: NOTICES All notices under this agreement shall be in writing, to the addresses specified herein.
SECTION 14: SEVERABILITY
If any term of this Agreement, to be invalid or unenforceable, the remaining terms shall remain in full force and effect as if such invalid or unenforceable term had never been included.
SECTION 15: GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws of the United States and the State of New York without regard to principles of conflict of laws.
SECTION 16: FINAL AND ENTIRE AGREEMENT
This Agreement constitutes the final and entire agreement between the parties with respect to the subject matter hereof. This agreement terminates and supersedes all prior understandings, agreements, previous proposals (both oral and written), negotiations, representations, commitments, writings and all other communications between the parties. This Agreement may not be modified except in writing signed by a duly authorized representative of each of the parties.
SECTION 17: RELATIONSHIP BETWEEN PARTIES
Each party is an independent contractor. Neither Party shall assume, either directly or indirectly, any liability of or for the other Party. Neither Party shall have the authority to bind or obligate the other Party and neither Party shall represent that it has such authority.
SECTION 18: SUCCESSORS AND ASSIGNS
This Agreement is not assignable by either party, unless the other provides written consent to assignment.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.
SECTION 19: Definitions
Confidential Information: shall mean any information, whether provided or retained in writing, verbally, by electronic or other data transmission, or in any other form or media whatsoever or obtained through on site visits and whether furnished or made available before or after the date of this Agreement, that is confidential, proprietary, or otherwise not generally available to the public, including without limitation, trade secrets, marketing and sales information, product information, technical information and technology, personally identifiable information, supplier information, information about trade techniques and other processes and procedures, financial information and business information, compliance information, and/or plans and prospects.
Customer: the term “Customer” means an individual or entity that purchases a Subscription for one or more Sites.
End User License Agreement: A required document signed from any user of The GuardTM. The agent is responsible for collecting and providing to Company a signed user agreement from each new subscription.
The GuardTM: the term “The GuardTM” refers to The GuardTM” Risk Assessment and Compliancy Management SoftwareTM (aka the “Products” as used in this Agreement).
Price: the term “Price” means the gross amount a Customer pays to Company for a Subscription to The GuardTM”.
Qualified New Subscriber: A subscriber with whom Company has not previously entered into a Terms and Conditions Agreement and License Agreement, a Reseller Agreement, or a Referral Agreement.
Renewal: the term “Renewal” means the payment by a Customer for another year’s Subscription for each Primary and Secondary Site.
Site: The term “Site” means a physical location that requires its own compliance assessment and audit tracking (e.g., an individual Customer may have multiple sites), and that requires a distinct, yearly subscription. “Primary Site” means the first Site a Customer purchases a subscription for. “Secondary Site” means a site that a Customer purchases a Subscription for in addition to the Primary Site.
Subscription: the term “Subscription” means the method by which a new Customer licenses The GuardTM on an annual basis during the first year or via a Renewal and includes a signed end user license agreement, that is implemented, and wherein the Company has received payment
EXHIBIT B
Compliancy Group LLC – THE GUARDTM:
TERMS OF USE
Terms of Use for Reseller Clients
This Terms of Use (“TOU”) is entered between you (“Licensee”) and Compliancy Group, LLC (“Licensor”).
SECTION 1: LICENSE
- A.The services provided (referred to as “The GuardTM” or “Application Services”) are a Licensor Internet-based suite of software made available as a service. Upon payment of the license fees as provided by the applicable Reseller partner, Licensor grants to Licensee a limited, nonexclusive, nontransferable right to access and use (and to permit Licensee’s Authorized Users (as defined below) to access and use) the Application Services for Licensee’s own internal business purposes and the internal business purposes of its Affiliates (as defined herein), each in accordance with the terms and conditions of this TOU and any user documentation provided online. For the purposes of this TOU, an “Affiliate” of an entity, is any entity controlled by, controlling, or under common control with such entity.
B. “Authorized Users” are those employees and contractors of Licensee and its Affiliates who are authorized to use the Application Services and have been assigned an individual user ID by Licensor. Licensee shall require any contractors that are designated as Authorized Users to be bound by confidentiality and license provisions that are substantially as protective as are set forth in this TOU. Licensor agrees to provide Authorized Users with access to the Application Services via https://www.compliancy-group.com and any successor site (“Web Site”).
C. Designated Representative for Compliance Tracking Solution. Licensee shall appoint an individual to serve as Licensee’s Designated Representative and provide the name and contact information to Licensor. This individual shall, in addition to performing any specific duties mentioned herein, attend all Guard Coaching and Training sessions. This person shall ensure that Licensee uses good-faith efforts in the process of learning The GuardTM, and during Licensor-provided training for The GuardTM. Licensee shall, at all times, use reasonable efforts to avoid changing the Designated Representative. In the event a change of Designated Representative is required, Licensee shall use reasonable efforts to provide Licensor with at least at least 10 days prior written notice of any change in the Designated Representative. Licensor reserves the right to reject Licensee’s choice of replacement Designated Representative, should Licensor determine the choice to be unsuitable.
D. Licensee acknowledges and agrees that it is possible to link to third party applications and services (“Third Party Services”). Such Third Party Services are not part of the Application Services, and Licensor disclaims all responsibility, warranties and liability pertaining to same. Any such Third-Party Service shall be provided to Licensee pursuant to the terms and conditions offered by such Third-Party Services provider, and Licensor is not a party to any such agreement.
SECTION 2: INTELLECTUAL PROPERTY RIGHTS
A. Licensee acknowledges that the Application Services are owned by Licensor, and constitute valuable intellectual property of Licensor including without limitation, all ancillary and interface software, all current and future enhancements, modifications, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, and patents therein. Licensor reserves all rights in the Application Services not expressly granted to Licensee or any Authorized Users hereunder. Neither Licensee nor any Authorized User may: (a) modify, translate, reverse engineer, decompile, disassemble, creative derivative works of, or otherwise attempt to derive any source code of the Application Services; (b) alter or copy, or permit a third party to alter or copy, any part of the Application Services; (c) use the Application Services to provide services to third parties; (d) incorporate the Application Services into other software; (e) use the Application Services except as described herein; or (f) sublicense, distribute, sell, assign, transfer, lease, loan, pledge, or rent the Application Services to any third party
B. . Nothing in this TOU shall preclude Licensor from implementing features, ideas, processes or technology suggested by a customer, and promoting to the marketplace. Licensor shall own any rights, intellectual property, and title to the code associated with said implementation. Except as expressly permitted hereby, copying of any portion of the content and intellectual property included in the Application Services is prohibited. Licensee shall not remove any trademark or copyright notices from the Application Services or any provided documentation. Any documentation provided by Licensor for use by Licensee on its website, documenting successful completion of The GuardTM, shall be used only during the term of this Agreement, and only for the period of time Licensor provides for in writing. Use of The GuardTM and Licensor’s marks after the term of this Agreement and without documentation of successful compliance tracking solution completion and annual re-assessment, constitutes a material breach of this Agreement. Upon any cancellation, termination, or expiration of this Agreement for any reason, the Licensee may not sell any products or services using the Licensor’s marks, without the express written consent of Licensor.
C. Data Retention and Ownership of Licensee Information. Licensor shall maintain all transaction and customer data throughout the lifetime of a Licensee’s subscription. Licensor does not own, nor will Licensor use or disclose to any third party, any data, information, or material (“Licensee Data”) that Authorized Users submit to the Application Services. Licensee is responsible for not storing any protected health information (PHI) on the Application Services and for storing and regularly downloading any data created by the Application Services necessary for audit and other regulatory purposes. The Licensee has sole responsibility all Licensee Data. Licensee hereby grants to Licensor a limited, non-exclusive, nontransferable license to access, host, copy, format, display, distribute, store and use (and to permit Licensor’s subcontractors to do the same) Licensee Data for the sole and exclusive purpose of providing the Application Services for the benefit of Licensee in accordance with this Agreement. Licensee hereby grants Licensor access to Licensee’s business associate and vendor contact information.
SECTION 3: CONFIDENTIALITY
A. Definition. “Confidential Information” shall mean information, whether provided or retained in writing, verbally, by electronic or other data transmission or in any other form or media whatsoever or obtained through on-site visits and whether furnished or made available before or after the date of this TOU, that is confidential, proprietary or otherwise not generally available to the public including, without limitation, trade secrets, marketing and sales information, product information, technical information and technology, personally identifiable information, and supplier information, information about trade techniques and other processes and procedures, financial information and business information, compliance information, plans and prospects.
B. Protection of Confidential Information. Licensee shall not disclose to any third party during the Term or after the termination or expiration of this TOU, and Licensee shall keep confidential all Confidential Information of the Licensor, protecting the confidentiality thereof with the same level of efforts that it employs to protect the confidentiality of its own confidential information of like importance and in any event, by reasonable means. Licensee may disclose the Confidential Information of Licensor to its personnel engaged in a use permitted by this TOU and with a need to know, provided that such personnel (i) are directed to treat such Confidential Information confidentially and not to use it other than as permitted by hereby and (ii) are subject to a legal duty to maintain the confidentiality thereof. Licensee shall not use the Confidential Information of the Licensor except as necessary in and during the performance of this Agreement, or as expressly permitted hereunder. Licensee shall be responsible for any improper use or disclosure of any Confidential Information by Licensee’s officers, partners, principals, employees, agents or independent contractors. Licensee acknowledges that elements of the Confidential Information of Licensor, including, without limitation, the Application Services, and the terms, conditions and fees under this TOU, are trade secrets of Licensor.
C. Confidentiality Exceptions. The obligations of this Section shall not apply (i) to any Confidential Information for a period longer than it is legally permissible to restrict disclosure of Confidential Information or (ii) to any Confidential Information that Licensee can demonstrate was: (a) at the time of disclosure to Licensee in the public domain or commonly known in Licensee’s industry; (b) after disclosure to Licensee entered the public domain through no fault of Licensee; (c) in the possession of Licensee at the time of disclosure to it, if Licensee was not then under an obligation of confidentiality with respect thereto; (d) received after disclosure to Licensee from a third-party who had a lawful right to disclose such Confidential Information to it; (e) independently developed by Licensee without reference to Confidential Information of Licensor; or (f) disclosed with the prior written approval of the Licensor.
D. Required Disclosure. Either party may disclose Confidential Information (including, as applicable, Licensee Data) to the extent required by law or by order of a court or governmental agency; provided, however, that the recipient of such Confidential Information shall give the owner of such Confidential Information prompt notice, and shall provide reasonable cooperation to the owner of such Confidential Information if the owner wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information.
E. Notification; Survival. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving party shall immediately notify the disclosing party. Notwithstanding anything in this Agreement to the contrary, the obligations of the parties set forth in Section 4(A)-(E) with respect to Confidential Information will remain in effect during the term of this TOU and (i) with respect to Confidential Information that does not qualify as a trade secret under applicable law, for a period of three (3) years following the expiration or termination of this TOU, and (ii) with respect to trade secrets, for so long as such Confidential Information remains a trade secret.
SECTION 4: LICENSOR INDEMNIFICATION.
A. Licensor shall defend, indemnify, and hold harmless Licensee from and against any and all damages, losses, fines, penalties, costs, and other amounts (including reasonable attorney’s fees and expenses) (collectively, “Losses”) arising from or in connection with third party claims based on allegations that the Application Services as delivered by Licensor hereunder and used by Licensee in accordance with the terms and conditions of this TOU, infringes upon or misappropriates the intellectual property rights of a third party.
B. Licensor shall not indemnify or be liable for any claim or Losses if the finding of infringement is based on (i) the use of a superseded or altered release of the Application Services; (ii) the modification of the Application Services by Licensee or any third party; (iii) the use of the Application Services other than in accordance with its documentation and this TOU or in combination with any intellectual property, hardware, software, data or technology not supplied by Licensor or approved by Licensor in writing; or (iv) any intellectual property supplied by Licensee (including, but not limited to, the Licensee Data).
C. If Licensee is enjoined or otherwise prohibited, or is reasonably likely to be enjoined or prohibited, from using the Application Services or any part thereof, due to a claim covered by Licensor’s indemnification obligations under this Section, then Licensor shall, at its sole expense and option: (i) attempt to procure for Licensee the right to continue using the infringing portion of the Application Services; (ii) modify the infringing portion of the Application Services so as to render it non-infringing while maintaining substantially similar functionality; or (iii) replace the infringing portion of the Application Services with a functionally substantially similar non-infringing item. If Licensor is unable to procure any of the foregoing after using commercially reasonable efforts to do so, Licensor shall grant Licensee a refund of all prepaid but unused sums paid to Licensor for such infringing item, and Licensee shall cease using such infringing portion of the Application Services. This Section 5(C) states Licensor’s entire liability and Licensee’s sole exclusive remedy for any claim of infringement.
D. EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS
TOU, THE APPLICATION SERVICES ARE PROVIDED ‘AS IS,’ AND LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (INCLUDING ANY GUARANTEES OF LEGAL COMPLIANCE), ANY WARRANTIES OF NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT, LICENSOR SHALL NOT BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOVERNMENTAL COMPLIANCE, SANCTIONS, LOSS OF DATA OR OTHER INFORMATION) ARISING OUT OF, OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LIABILITY RELATED TO THE USE OF OR UNAVAILABILITY OF THE APPLICATION SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMIT OF LICENSOR’S LIABILITY, INCLUDING ANY LIABILITY OF ANY LICENSOR CONTRACTOR OR AFFILIATE, TO LICENSEE OR ANY THIRD PARTY CONCERNING THE PERFORMANCE OR NON-PERFORMANCE OF LICENSOR, OR IN ANY MANNER RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, BY STATUTE, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE, SHALL IN THE AGGREGATE BE LIMITED TO THE FEES PAID BY LICENSEE TO LICENSOR HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
SECTION 5: WARRANTIES AND INDEMNITY OF LICENSEE
Licensor represents and warrants that it has the legal right to enter into this TOU and perform its obligations hereunder. Except as provided in the foregoing Section 5, Licensee shall to the fullest extent allowed by law, defend, indemnify and hold harmless Licensor, any Third-Party provider and any third-party contributor to the Application Services, from and against any and all claims and Losses arising from Licensee’s use of the Application Services, except that this indemnity shall not apply where such third-party claim or Losses would not have occurred but for the gross negligence or the willful misconduct of Licensor.
SECTION 6: INDEMNIFICATION PROCEDURES
Promptly after receipt of notice by any entity entitled to indemnification under this TOU of the commencement of any claim (each an “Indemnified Party”) that they will seek indemnification for under this TOU, the Indemnified Party shall notify the party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) of such claim in writing. Failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations under this TOU except to the extent that it can demonstrate that its rights have been prejudiced as a result of such failure. Provided that the Indemnifying Party promptly and appropriately performs its indemnification obligations hereunder, the Indemnifying Party shall be entitled to have sole control over the defense and settlement of such claim. The Indemnified Party shall provide reasonable cooperation (at the Indemnifying Party’s expense) and full authority to defend or settle the Claim. The Indemnifying Party shall keep the Indemnified Party fully informed about the status of any litigation, negotiations, or settlements of any such Claim. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with, counsel of its own choosing.
SECTION 7: CHOICE OF LAW AND VENUE; SUBPOENAS
- This TOU shall be governed by and construed in accordance with the laws of the United States and the State of New York without giving effect to principles of conflicts of law. Licensee agrees to submit to the personal jurisdiction of the State and Federal courts located in New York County in the State of New York with respect to any legal proceedings that may arise out of or in connection with this TOU.
- LICENSEE AND LICENSOR BOTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
- If Licensor is subpoenaed, with respect to services provided to Licensee, Licensee will reimburse Licensor all approved reasonable and necessary costs associated with the subpoenaed actions.
SECTION 8: SEVERABILITY
If any part of this TOU is found void and unenforceable, it will not affect the validity of the balance of the TOU, which shall remain valid and enforceable according to its terms. This TOU may only be modified in a writing signed by both parties.
SECTION 9: ENTIRE AND FINAL AGREEMENT
This TOU, and any other Exhibits, Schedules, Appendices, or other documents referenced herein, constitute the entire and final agreement between the parties with respect to the subject matter hereof, and supersede all other communications, including, but not limited to, all prior agreements or proposals, whether written or oral, between the parties with respect to such subject matter.
SECTION 10: GENERAL
- If Licensee fails to pay any outstanding balance for one (1) month following the date upon which such charge was incurred, Licensor reserves the right to suspend its performance without notice to Licensee and without any liability for any damages incurred as a result of such suspension.
- THE LICENSEE ASSUMES ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO THE SELECTION OF THE SERVICES TO ACHIEVE LICENSEE’S INTENDED RESULTS.
- Neither party shall be, or considered to be or permitted to be, an agent, employee, joint venture, partner, or subcontractor of the other.
- The headings of sections of this TOU are for convenience of reference only and will not affect the meaning or interpretation of this TOU in any way.
- The provisions contained in this TOU that by their context are intended to survive termination or expiration will survive.
- A failure or delay in enforcing an obligation or exercising a right or remedy does not amount to a waiver of that obligation, right or remedy. A waiver of a breach of a term does not amount to a waiver of a breach of any other term in the TOU. A waiver of a particular obligation in one circumstance will not prevent a party from subsequently requiring compliance with the obligation on other occasions.
- Licensor may use the Licensee corporate name and logo for marketing purposes, such as website, articles and press releases, only during the Term, and if applicable, any Renewal Term, of this TOU.
Compliancy Group, LLC – THE GUARDTM:
LICENSE, IMPLEMENTATION AND SERVICES AGREEMENT
Schedule 1: Outline of Application Services
1. The GuardTM –Compliance Tracking Solution
- Self-Auditing, Gap Identification, and Remediation Plans
- Administrative, Privacy, and Security Risk Assessments
- Incident Management (see “Definitions,” below)
- Business Associate Management
- Policy & Procedure, Training, and BAA Templates
- Document and Version Control
- Training and Attestations Tracking
- Unlimited Hotline support, including our Audit Response Program (see “Definitions,” below)
- Seal of Compliance
Our Compliance Coaches provide you with coaching and training on the use of our platform, The Guard, and its resources. You will receive one-on-one sessions with a Compliance Coach, who will guide you through this coaching and training. The number of sessions will be an amount that is reasonably needed to complete the coaching and training, provided you are making a good-faith effort using The Guard to earn the Seal of Compliance. If you need to cancel a session, you must provide 24 hours’ notice.
If you successfully complete all required coaching and training for The Guard, Licensor will issue the Seal of Compliance to you. A Licensee who has been awarded the seal of Compliance will have the right to display the Seal of Compliance on Licensee’s website. The Seal of Compliance is meant to illustrate to auditors, patients, and partners that a Licensee’s organization has taken the necessary steps toward achieving compliance.
Additional Application Services: Additional services are listed in the Invoice/Proposal (see Schedule 2).
Schedule 2: Pricing and Additional Services: See Proposal or Invoice