This Master Agreement, together with any attachments, addenda, exhibits, and schedules attached to or incorporated by reference (collectively, this “Agreement”), is made by and between Lightning Step Technologies, LLC, a Delaware limited liability company (“Company”), and the customer identified in the Order that references this Agreement (“Customer”), and is made effective as of date the Order that references this Agreement is executed by Company and Customer (the “Effective Date”). Company and Customer may be referred to individually as a “Party” and collectively as the “Parties.”
BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DISCLAIMERS OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, ARBITRATION, AND CHOICE OF TEXAS LAW. AN ELECTRONIC SIGNATURE TO THE ORDER HAS THE SAME EFFECT AS IF THIS AGREEMENT IS SIGNED IN INK. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS AND USE THE PLATFORM OR RECEIVE SERVICES.
The following documents are incorporated into and made a part of this Master Agreement by reference (available at lightningstep.com/legal) (each, an “Addendum,” and collectively, the “Addenda”):
• Business Associate Agreement (the “BAA”)
• Maintenance and Support Services (the “Maintenance Terms”)
TERMS AND CONDITIONS
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. “Affiliate(s)” means any entity, directly or indirectly, controlling, controlled by, or under common control with a party. “Control” means the power to vote or direct the voting of more than fifty percent (50.0%) of the outstanding shares of voting securities of such entity, or the ability to direct the operations or management of such entity pursuant to a written agreement.
1.2. “Analytics Data” means (a) usage data that may be used to improve the Platform, and (b) metadata about the Platform that may be used to automate or perform certain support functions, but in each case excluding Customer Data.
1.4. “Beta Product(s)” means pre-release or early-release product that Company makes available to a customer before such product is made generally available to all Company customers.
1.5. “Company Intellectual Property” means the Platform, Services, documentation, content, or any other materials created or developed by Company prior to the Effective Date or independently of this Agreement and all intellectual property rights therein, including without limitation any software, technology, know-how, algorithms, code (whether in object or source code form), procedures, techniques, solutions, workarounds, or any other similar materials. All modifications, enhancements, updates, translations, or derivative works of the foregoing shall be deemed to be “Company Intellectual Property” for purposes of this Agreement.
1.6. “Confidential Information” means any and all proprietary or confidential information and materials, including without limitation, trade secrets, ideas, improvements, processes, concepts, research, current and anticipated customer requirements, pricing, market studies, customer lists, data, know-how, products, services, suppliers, business plans, prices and costs, the terms of this Agreement, and all other information that by its nature or the nature of its disclosure reasonably should be considered confidential, that is disclosed by one Party to the other Party, either directly or indirectly, during the Term of this Agreement (whether in writing, orally, graphically, electronically, or any other form). “Confidential Information” also includes, without limitation (a) third-party confidential information that the disclosing Party is obligated to keep confidential, and (b) all information which contains or otherwise reflects or is derived, directly or indirectly, from any information described in this paragraph, including all notes, analyses, compilations, studies, or other documents prepared by the disclosing Party that contain or otherwise reflect or are derived, directly or indirectly, from such Confidential Information. “Confidential Information” shall not include information that can be shown through written documentation to be: (i) in the public domain through no breach of this Agreement by the receiving Party or a third party acting on its behalf; (ii) known to the receiving Party from a third-party source without violation of any obligation of confidentiality to the disclosing Party; (iii) lawfully known by the receiving Party prior to disclosure of such information by the disclosing Party; or (iv) protected health information (as defined in the BAA), which shall be governed solely by the BAA.
1.7. “Customer Data” means any electronic data or information provided by Customer, its Affiliates, or their Authorized Users to Company through the Platform or in connection with performance of the Services.
1.8. “Documentation” means the user manuals, handbooks, online materials, specifications, or forms generally provided by Company to all customers that describe the features, functionality, or operation of the Platform.
1.9. “Fees” means the fees payable by Customer to Company for access to and use of the Platform or receipt of the Services and as set forth in an Order.
1.10. “Order” means a document executed in writing by the authorized representatives of the Parties that sets forth the Platform, Services, Fees, and any other respective responsibilities of the Parties or information reasonably necessary to allow for the performance of the Services.
1.11. “Platform” means Company’s proprietary electronic records management, customer relationship management, and revenue cycle management platform for use by addiction and rehabilitation medical facilities.
1.12. “Platform Administrator” means the individual assigned by Customer having responsibility for all administrative matters relating to Customer’s and its Affiliates’ use of the Platform.
1.13. “Services” means those services identified in an Order to be performed or provided by Company or a third party acting on its behalf for Customer or its Affiliates under this Agreement, including without limitation any maintenance, support, or any other professional services.
1.14. “Subscription Administrator” means the individual assigned by Customer having responsibility for all billing matters relating to Customer’s and its Affiliates’ use of the Platform.
1.15. “Third-Party Software” means any (a) open-source software that is made available under licensing terms that allow a licensee to copy, use, distribute, and/or create and distribute, modifications and derivative works of such software without charge; or (b) software owned or licensed on a commercial basis by a third party, in each case to the extent supplied by Company under this Agreement.
2.1. Subscription Right. Subject to the terms and conditions of this Agreement, Company hereby grants Customer and its Affiliates a limited, non-sublicensable, non-transferable, non-exclusive right to access and use the Platform solely during the Term (as defined in this Agreement) in accordance with the Documentation and solely for Customer’s and its Affiliates’ internal business purposes. The Platform is provided with “Restricted Rights” for all United States government users. Except for the limited rights granted under this Agreement, Company hereby reserves all rights, title, and interests in and to the Company Intellectual Property and all intellectual property rights therein.
2.2. Authorized Users. Customer shall not share access to or use of the Platform with anyone other than Authorized Users. If Customer wishes to add or remove Authorized Users, the System Administrator (with notice to the Subscription Administrator) shall be solely responsible for adding or removing such Authorized Users, as applicable. No Authorized User acquires any ownership rights in such Authorized User’s user account or User ID, and Company reserves the right to terminate any user account and/or User ID at any time in Company’s sole discretion. Customer’s Platform Administrator will create User IDs for each of the locations for which Customer provides professional services and has paid the applicable Fees. Customer shall be responsible for ensuring the security and confidentiality of its User IDs. User IDs may not be provided to any individual who is not an Authorized User (other than the Subscription Administrator), and each User ID may be assigned to and used by only one individual Authorized User.
2.3. Restrictions. Customer is solely responsible for all activities that occur under any Authorized User accounts. Customer will not, and will not permit any Affiliate, Authorized User, or any other third party to: (a) reverse engineer, disassemble, or decompile any component of the Platform; (b) interfere in any manner with the operation of the Platform; (c) allow a third party to access the Platform or transfer to a third party any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Platform for the benefit of a third party or to operate as a service bureau; (d) copy, modify, or make derivative works based on any part of the Platform or attempt to discover any source code or underlying ideas or algorithms of the Platform (except to the extent that applicable law prohibits such restrictions); (e) alter or remove Company’s or its licensors’ copyright, patent, or other proprietary rights notices or legends appearing within the Platform; (f) allow the transfer, transmission, export, or re-export of the Platform in violation of any export control laws or regulations; or (g) otherwise use the Platform in any manner that exceeds the scope of use permitted under Section 2.1.
2.4. Customer Systems. Customer shall obtain, maintain, and provide at its sole cost and expense all hardware, equipment, software, Internet access, information, and access to systems and services (including over the Internet) as reasonably required to access and use the Platform and set forth in the applicable Documentation.
2.5. Updates and Upgrades. Customer acknowledges that Company may update or otherwise modify the Platform and underyling technologies and methods based on reasonable commercial factors, including those necessary to meet legal, regulatory, or industry‐standard requirements.
2.6. Monitoring. Company may monitor Customer’s use of the Platform, including through automated or other technical means, including to verify compliance with this Agreement, to gather insight into user behavior, and to improve its products and services. Customer acknowledges and consents to Company’s collection, use, processing, storage, and deletion of certain de-identified usage and performance data and metadata to provide, automate, or improve the Platform or the Services.
2.7. Suggestions and Feedback. Customer hereby irrevocably and exclusively assigns, conveys, transfers, and sets over absolutely to Company, all rights, title, and interests in and to (whether or not now existing) in and to all ideas, suggestions, enhancements, concepts, recommendations, or other feedback regarding the Platform or Services provided by Customer and/or its Authorized Users, including without limitation any and all intellectual property and proprietary rights therein (collectively, “Feedback”). Company has an unlimited right to use such Feedback in any present or future form, format, or manner it deems appropriate, without monetary or other compensation to Customer.
2.8. Third-Party Software. Customer acknowledges that the Platform may contain Third-Party Software, use of which shall be governed solely by the applicable third-party terms or may require Customer to enter into separate subscription or licensing arrangements with the provider of such Third-Party Software. Customer acknowledges and agrees that access to such Third-Party Software is expressly contingent upon Customer executing such separate subscription or licensing arrangement, and any failure to do so may impact or impair Customer’s ability to access and use the Platform.
2.9. Beta Products. To the extent Company provides access to any Beta Products to Customer at any time during the Term, Customer acknowledges and agrees that such Beta Products are provided by Company “as is” and without any warranty or support. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND COMPANY’S SOLE LIABILITY, FOR ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF USE OF ANY BETA PRODUCT IS FOR CUSTOMER TO STOP USING SUCH BETA PRODUCT.
3.1. SOWs. During the Term, the Parties may enter into one or more statement of work (each, a “SOW”) for additional Services; provided, that in no event shall any SOW or any obligation to perform such additional Services take effect unless set forth in a SOW signed by authorized representatives of the Parties. Upon execution of a SOW, Company shall perform the Services set forth in a SOW. The time, place, and manner in which Company chooses to perform the Services shall be in Company’s sole and absolute discretion and control. Except as otherwise set forth in SOW, Company shall provide all equipment, tools, and other materials necessary to perform the Services set forth in a SOW. Customer acknowledges and agrees that the implementation and performance of the Services shall not commence until Customer provides to Company any and all data and information required under a SOW for Company to implement and provide the Services, and that Company shall not be responsible for any delays in providing the Services to the extent resulting from Customer’s failure to provide such data and information. In the event that Customer fails to provide such data and information within thirty (30) days of the effective date of the applicable SOW (or such other period as may be agreed upon by the Parties in the applicable SOW), then (a) the term of such SOW shall be extended by the total duration of such delay, and (b) any service levels or support obligations set forth in such SOW shall be suspended until such time as Customer provides all such data and information to Company reasonably necessary for Company to perform the Services set forth in a SOW. To the extent the terms and conditions in a SOW are inconsistent with the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control unless the SOW references the applicable section of this Agreement and expressly states that such section shall supersede the terms of this Agreement.
3.2. Maintenance. Customer acknowledges that Company may perform Services consisting of periodic maintenance and enhancements to the Platform that could result in temporary reductions in Customer’s ability to use or access the Platform and as further set forth in the Maintenance Terms. Company shall use commercially reasonable efforts to schedule such maintenance and enhancement in a manner that does not significantly disrupt Customer’s use of or access to the Platform.
4. PAYMENT TERMS.
4.1. Fees. Customer shall pay to Company the Fees set forth in the applicable Order and/or SOW. Company reserves the right to increase the Fees prior to the commencement of any Renewal Term upon written notice to Customer.
4.2. Invoicing. An auto-payment authorization form from Customer is required to be kept on file at all times during the Term and will be used to settle all invoices due under this Agreement. Except as otherwise set forth in an Order and/or SOW, or as may be updated by Company from time to time, Company will process the auto payment method on file on the due date set forth on the invoice. If any payment is denied, Customer will have five (5) days to submit payment through alternative means. Customer shall pay interest on all past due amounts at a rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less, from the due date until paid in full. If payment is not made within ten (10) days after invoicing, a notification will be sent to the Subscription Administrator, and Company may suspend Customer’s, its Affiliates’, and their Authorized Users’ access to and use of the Platform and/or performance of the Services for so long as any undisputed amounts due are delinquent. To the extent Customer fails to pay any Fees when due, Customer shall be responsible for and shall reimburse Company for any collection costs, attorneys’ fees, and any other costs or expenses incurred by Company in recovering such past due amounts. Customer shall ensure that its Subscription Administrator maintains complete, accurate, and up-to-date Customer billing and contact information with Company at all times.
4.3. Expenses. Customer shall reimburse Company for all expenses incurred by Company in performing Services, if any, to the extent identified in a SOW, including without limitation (a) charges for Company’s personnel at the current list price when Services are offered, and (b) all reasonable out-of-pocket expenses incurred by Company, including without limitation, reasonable travel and per diem stipends and miscellaneous expenses. Company will, upon request from Customer, provide original receipts and other documentation reasonably necessary for Customer to verify such expenses.
4.4. Taxes. Except for any taxes based on Company’s income, Customer shall be solely responsible for the payment of any and all taxes arising out of this Agreement, including any sales, use, and property taxes, and any taxes that may be determined to be due and owing by Customer at a future date. To the extent Customer is exempt from such taxes for the purchase of any products or services under this Agreement, Customer first shall provide Company with a signed original certificate of exemption and, in such event, this Section 4.4 shall not apply to Customer.
5.1. General Obligations. The Party receiving Confidential Information from the other Party shall: (a) use commercially reasonable efforts not to disclose any Confidential Information of the disclosing Party to third parties except as otherwise permitted in this Agreement; (b) take commercially reasonable precautions to keep the Confidential Information secret and avoid disclosure, loss, or misuse of the Confidential Information; and (c) not authorize any person to use any of the Confidential Information for any purpose except as permitted in this Agreement. The receiving Party may disclose Confidential Information to Affiliates, personnel, or advisors of the receiving Party with a need to know such Confidential Information. Notwithstanding any other provision of this Agreement, the receiving Party may disclose Confidential Information pursuant to any governmental or judicial order applicable to the receiving Party; provided, that the receiving Party first notifies the disclosing Party sufficiently in advance of such order and provides the disclosing Party with reasonable assistance at the disclosing Party’s expense so that the disclosing Party may object to such order or make such disclosure subject to a protective order or confidentiality agreement.
5.2. Return of Confidential Information. The receiving Party shall promptly destroy or return all tangible and intangible material in its possession or control embodying the disclosing Party’s Confidential Information (in any form and including, without limitation, all summaries, copies, and excerpts of Confidential Information) promptly after the disclosing Party makes a written request therefor; provided, that the receiving Party may retain a copy of the disclosing Party’s Confidential Information in its possession or control to the extent required by applicable law or maintained in archival or backup copies; provided, further, that the receiving Party shall continue to retain such Confidential Information in accordance with this Section 5 for so long as such Party retains possession or control of such Confidential Information. Within thirty (30) days after the disclosing Party has requested the return or destruction of the Confidential Information, the receiving Party shall certify in writing to the disclosing Party that all such Confidential Information has been returned and/or permanently destroyed.
5.3. Prior Confidentiality and Non-Disclosure Obligations. To the extent the Parties entered into a confidentiality and non-disclosure agreement prior to the Effective Date for purposes of evaluating a potential business transaction related to the subject matter of this Agreement, then as of the Effective Date any and all such confidentiality and non-disclosure agreements automatically shall terminate and cease to have any effect. Any information disclosed pursuant to any such confidentiality and non-disclosure agreement prior to the Effective Date shall be deemed “Confidential Information” for purposes of this Agreement, and shall be subject to the terms and conditions of this Section 5 as of the Effective Date and thereafter.
5.4. Equitable Relief. The Parties acknowledge that the remedy at law for any breach or threatened breach of Section 5 shall be inadequate and that the non-breaching Party shall be entitled to seek equitable relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it under this Agreement or at law or in equity.
6. DATA AND DATA SECURITY.
6.1. Customer Data. Subject to the terms and conditions of this Agreement and/or the applicable SOW or Order, Customer hereby grants Company a royalty-free right and license to use, copy, store, transmit, reproduce, display, and modify all Customer Data provided in connection with this Agreement and as necessary to provide access to and use of the Platform and any Services. Customer represents and warrants that it has all rights, consents, and licenses necessary to transmit any Customer Data to Company, in accordance with applicable laws and contractual obligations. Customer shall use commercially reasonable efforts to ensure any Customer Data provided to Company are complete, accurate, and adhere to the formats reasonably required by Company (if any), and Customer acknowledges that usage of the Platform or performance of the Services may not be correct if Customer fails to do so. Company may remove any Customer Data that (a) infringes, misappropriates, or otherwise violates the intellectual property, proprietary, publicity, privacy, or other rights of a third party, (b) violate the terms and conditions of this Agreement, or (c) contain any virus, Trojan horse, programming routine, or other malicious code; provided, that Company is under no obligation to review any Customer Data for accuracy or risk of potential liability.
6.2. De-Identified Data. Company may use Customer Data, including any protected health information, to create de-identified information in accordance with applicable de-identification requirements under applicable law (“De-Identified Data”). Company may use, create, sell, disclose to third parties, and otherwise commercialize such De-Identified Data for any purposes not prohibited by applicable law, including without limitation (i) improving the Platform and/or Services, and (ii) creating statistical and/or benchmarking data. Company shall own all rights, title, and interests in and to any De-Identified Data, and any data, information, or materials created by Company therefrom.
6.3. Analytics Data. Company collects Analytics Data as a result of Authorized Users’ usage of the Platform. All Analytics Data, including any data, information, or materials or analytics created by Company therefrom, are the sole and exclusive property of Company. Company may use, create, sell, disclose to third parties, and otherwise commercialize such Analytics Data for any purposes not prohibited by applicable law.
6.4. Customer Obligations. Customer will implement and maintain appropriate administrative, physical, and technical safeguards to protect data and information within the Platform from unauthorized access, use, or alteration using any Authorized User’s user account. Such safeguards shall comply with all applicable federal, state, and local laws, rules, and regulations. Customer will maintain appropriate security with regard to all personnel, systems, and administrative processes used by Customer or its personnel to transmit, store, and process Customer Data through use of the Platform.
6.5. Company Obligations. Company has policies and procedures in place designed to reasonably safeguard and ensure the confidentiality and security of any Customer Data provided to Company through the Platform or in connection with the Services. Company maintains administrative, physical, and technical safeguards designed to protect the Platform and any Customer Data contained therein, against breach, loss, damage, or unauthorized disclosure.
6.6. Business Associate Agreement. The Parties agree to comply with the terms and conditions of the BAA as set forth therein.
7. WARRANTIES; DISCLAIMER.
7.1. Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) any individual executing the Agreement on its behalf is duly authorized and empowered to execute and deliver the Agreement; (iii) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; (iv) it has the full legal right and corporate power and authority to enter into and perform all of its obligations under the Agreement, and to comply with all terms and conditions thereof; and (v) it shall comply with all laws, rules, and regulations applicable to this Agreement.
7.2. Compliance with Laws. Customer will comply with all applicable laws, rules, and regulations, including without limitation laws relating to maintenance of privacy, security, and confidentiality of protected health information and personal data, the prohibition on the use of telecommunications facilities to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages or otherwise unlawful material, and all laws governing the submission of claims to Medicare and other third-party payors, if applicable. Customer will not undertake or permit any unlawful use of the Platform, or take any action that would render the operation or use of the Platform by Company or any other person unlawful. Without limiting the generality of the foregoing, in the event Customer elects not to use the preloaded consent forms that are included in any templates or forms made available through the Platform, Company shall not be responsible for Customer’s use of (or the legality of) the content of such other forms or documents used by Customer. Company offers no assurance that any Authorized Users use of the Platform under the terms of this Agreement will not violate any applicable law or regulation.
7.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO EMPLOYEE, AGENT, REPRESENTATIVE, OR AFFILIATE OF COMPANY HAS AUTHORITY TO BIND COMPANY TO ANY ORAL REPRESENTATIONS OR WARRANTIES CONCERNING THE PLATFORM OR SERVICES. ANY WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT SHALL NOT BE ENFORCEABLE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL BACKUP AND PROTECTION OF ANY DATA AND INFORMATION THAT MAY BE LOST THROUGH TERMINATION OF CUSTOMER’S ACCESS TO THE PLATFORM. IN NO EVENT SHALL COMPANY BE RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SOFTWARE, SERVICE, OR COMPONENT THAT INTERACTS OR INTERFACES WITH THE PLATFORM AND ANY FAILURE OR UNAVAILABILITY OF SUCH THIRD-PARTY SOFTWARE, SERVICE, OR COMPONENT. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL CUSTOMER DATA SUBMITTED THROUGH THE PLATFORM AND ANY ERRORS THEREIN.
8.1. Indemnification by Customer. Customer shall indemnify, defend, and hold harmless Company from and against any third-party claims (each, a “Claim”) and all resulting losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses incidental thereto) (collectively, “Losses”) arising out of or resulting from: (i) the gross negligence or willful misconduct of Customer or its personnel; (ii) any allegation that the Customer Data infringes, misappropriates, or otherwise violates the intellectual property, proprietary, publicity, privacy, or other rights of a third party; (iii) any medical advice, diagnosis, or recommendation provided by Customer or its personnel and any resulting harm; and (iv) any failure to protect Customer’s or any Authorized User’s account information or passwords.
8.2. Indemnification by Company. Company shall indemnify, defend, and hold harmless Customer from and against any third-party Claim and all Losses finally awarded by a court of competent jurisdiction in connection therewith that the Platform or Company Intellectual Property infringe or misappropriate any U.S. patent that has been issued as of the Effective Date, copyright, trademark, or trade secret of a third-party (each, an “Infringement Claim”). If an Infringement Claim is or may be brought, Company may, at its sole option and expense: (a) obtain for Customer the right to continue to use the Platform or applicable Company Intellectual Property consistent with this Agreement; (b) modify the Platform or Company Intellectual Property so that it is non-infringing and in compliance with this Agreement; or (c) replace the Platform or Company Intellectual Property with a non-infringing alternative with equivalent functionality. If none of the foregoing is reasonably possible, Company in its sole discretion may terminate this Agreement, in its entirety or in part. Notwithstanding the foregoing, Company shall have no indemnification obligation for Infringement Claims related to (1) the combination or use of the Platform or any Company Intellectual Property with any software, hardware, and/or processes not provided by Company; (2) Customer’s failure to comply with this Agreement; or (3) Customer’s modification of the Platform or Company Intellectual Property or use in breach of this Agreement. THIS SECTION 8.2 SETS FORTH COMPANY’S EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE REMEDY, FOR ANY INFRINGEMENT CLAIM.
8.3. Indemnification Process. If any Party is entitled to indemnification under this Section 8, the Party seeking such indemnification (the “Indemnified Party”) shall: (i) promptly notify the Party obligated to provide indemnification (the “Indemnitor”) of the existence of the Claim (together with copies of any applicable documents or other relevant information); (ii) provide Indemnitor with reasonable assistance and cooperation in connection with the defense of the Claim, in each case at the Indemnitor’s sole expense; and (iii) allow Indemnitor to control defense of the Claim and any related settlement negotiations; provided that the Indemnified Party shall have the right to participate in such Claim or settlement negotiations with counsel at its selection and at its sole expense. The Indemnitor may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Indemnified Party or diminishes the Indemnified Party’s rights without first obtaining the Indemnified Party’s express written consent.
9. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE BAA, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER TO COMPANY UNDER THE APPLICABLE ORDER OR SOW IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. TERM AND TERMINATION.
10.1. Term. This Agreement shall commence on the Effective Date and shall remain in effect during the initial term set forth in the Order (the “Initial Term”). Following the Initial Term, this Agreement automatically shall renew for additional, consecutive one (1) year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless either Party provides notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Term.
10.2. Termination. Either Party may terminate this Agreement or any Order or SOW in the event the other Party materially breaches this Agreement or an Order or SOW and fails to cure the breach within thirty (30) days following receipt of written notice from the non-breaching Party. To the extent that Company terminates this Agreement or an Order or SOW pursuant this Section 10.2, the Customer shall pay all Fees due and owing to the Company as of the effective date of termination and any Fees payable for the remainder of the applicable Term.
10.3. Effect of Termination. The Parties acknowledge and agree that the termination of an Order or one SOW shall not result in the termination of any other Order or SOW or this Agreement. This Agreement shall remain in full force or effect for the remainder of the applicable terms for any Orders or SOWs then-in effect at the time of termination of this Agreement. Company agrees that upon any termination of this Agreement, Company will allow the Customer to access, without the right to modify, enhance, or add to, the Customer Data via the regular login process for thirty (30) days following expiration or termination of this Agreement (the “Data Retrieval Period”). Company support will be available upon request to assist the Customer in downloading all Customer Data from the Platform during the Data Retrieval Period. Thereafter, Company will remove all Customer Data from the Platform and all Customer access to or use of the Platform immediately will be suspended. Customer may request an extension of the Data Retrieval Period at a rate of $150.00 per hour, plus reimbursement of Company’s reasonable out-of-pocket costs and expenses. The following provisions shall survive termination or expiration of this Agreement: Sections 1, 2.3, 2.7, 3.3, 4, 5, 6, 7.3, 8, 9, 10.3, 11, 13, and 15.
11. GOVERNING LAW; ARBITRATION.
11.1. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Texas and the United States of America without regard to any conflicts of laws principles that would require the application of any other law. The Parties hereby expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement.
11.2. Arbitration. THIS AGREEMENT REQUIRES THE INDIVIDUAL ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES. SUBJECT TO THIS SECTION 11.2, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE SUCH CLAIM OR DISPUTE: (1) IN COURT; (2) BEFORE A JUDGE OR JURY; OR (3) IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.
Customer agrees that any dispute arising out of or relating in any way to this Agreement requires that such claim be resolved exclusively by confidential, binding arbitration. The arbitration shall be conducted before three neutral arbitrators in a proceeding conducted in Houston, Texas, U.S.A., in accordance with the rules of the American Arbitration Association (“AAA”), as then in effect. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. Unless otherwise expressly required by applicable law, each Party shall bear its own attorneys’ fees without regard to which Party is deemed the prevailing Party in the arbitration proceeding. Except for punitive and consequential damages (which may not be awarded), and subject to the terms and conditions of this Agreement, the arbitrators shall be authorized to award either Party any provisional or equitable remedy permitted by applicable law. The Parties shall equally share all AAA charges and fees associated with the arbitration. Subject to the terms and conditions of this Agreement, the arbitrators will have the authority to apportion liability between the Parties, but will not have the authority to award any damages or remedies not available under, or in excess of, the express terms of these Terms. The arbitration award will be presented to the Parties in writing, and upon the request of either Party, will include findings of fact and conclusions of law. With regards to any action for breach of confidentiality or intellectual property obligations, nothing in this Section shall preclude either Party from seeking interim equitable relief in the form of a temporary restraining order or preliminary injunction. Any such request by a Party of a court for interim equitable relief shall not be deemed a waiver of the obligation to arbitrate hereunder. CUSTOMER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY AND ALL RIGHTS TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER CONTEMPLATED HEREIN.
The award of the arbitrators may be confirmed enforced in any court having jurisdiction thereof. Each Party hereby consents (i) to the exclusive jurisdiction of the state or federal courts located in Houston, Texas, for any action (a) to compel arbitration, (b) to enforce any award of the arbitrators, or (c) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim, or provisional equitable remedies, and (ii) to service of process in any such action by registered mail or any other means provided by law. Should this Section 11.2 be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the Parties agree that sole and exclusive jurisdiction and venue for any claims will be in the state or federal courts having jurisdiction over Harris County, Texas, and each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
12. FORCE MAJEURE. “Force Majeure Event” means any act or event that (a) prevents a Party (the “Non-performing Party”) from performing its obligations or satisfying a condition to the other Party’s (the “Performing Party”) obligations under this Agreement (other than Customer’s obligation to pay the Fees payable under this Agreement); (b) is beyond the reasonable control of and not the fault of the Non-performing Party, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, telecommunications or network failures or delays, computer failures involving hardware or software not within Company’s possession or reasonable control, acts of vandalism (including network intrusions and denial of service attacks), or any epidemic or pandemic; and (c) the Non-performing Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Non-performing Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other Party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Non-performing Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Non-performing Party shall immediately resume performance under this Agreement. Both parties shall work cooperatively in good faith to minimize any delays related to any Force Majeure Event using commercially reasonable efforts. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
13. ACCESS TO RECORDS. To the extent applicable, Company shall retain and, for four (4) years after the termination of this Agreement, upon written request, shall allow the Comptroller General of the United States (the “Comptroller”), the U.S. Department of Health and Human Services (“HHS”), and their duly authorized representatives access to this Agreement and to Company’s books, documents, and records as are reasonably necessary to verify the nature and extent of the costs of the services supplied under this Agreement. Such inspection shall be available for up to four (4) years after the rendering of such services. If Company carries out any of its duties under this Agreement pursuant to a subcontract with a related individual or organization, and if the services provided pursuant to that subcontract have a value or cost of Ten Thousand Dollars ($10,000.00) or more over a twelve (12) month period, then, to the extent applicable, Company agrees to include this requirement in any such subcontract.
14. ELIGIBILITY TO PROVIDE THE SOLUTION AND SERVICES. Company represents and warrants to Customer that, during the Term of this Agreement, Company and its employees who provide any of the Services: (i) have not been excluded from participation in any federal health care program under Section 1128 or 1128A of the Social Security Act; (ii) have not been sanctioned by the Office of the Inspector General (“OIG”); (iii) have not been listed on the OIG’s website List of Excluded Individuals and Entities; (iv) have not been listed on the General Services Administration’s Excluded Parties List System; and (v) possess appropriate state license(s) that have not been sanctioned or limited. Company shall not at any time during the Term of this Agreement arrange for the provision of Services through a person that does not meet these criteria at the time services are rendered. Company shall notify Customer promptly if Company or an employee of Company is convicted of a fraud or felony or is suspended, debarred, or excluded from participation in a federal health care program (as defined in 42 U.S.C. § 1320a-7b(f)).
15. GENERAL PROVISIONS.
15.1. Billing and Collection for Medical Services. Company shall not be responsible in any manner for providing training services to Customer or any of its employees, contractors, or providers as related to the billing, collection, or adjustments for any medical services provided by Customer to its patients. This includes but is not limited to Company not having any responsibility for Customer’s workload, including charting. It is the sole responsibility of Customer to ensure that its billing staff has adequate training for billing for Customer’s medical services, and Company shall have no responsibility in this regard.
15.2. Responsibility for Prescriptions. Under no circumstances shall Company be held responsible or liable for any amounts of prescription medication prescribed by either Customer or its personnel whether such prescribed amount is over or under the limits set by either the United States Drug Enforcement Agency or Customer. Customer shall be solely responsible and liable for any amounts prescribed, and Company expressly disclaims all liability in this regard as Company has no control over the amounts which are prescribed by Customer or its personnel.
15.3. Responsibility for Provision of Health Care Services. Customer, through licensed health care personnel, shall be solely responsible for, and shall have sole and complete authority, supervision and control over the provision of professional health care services performed for Customer’s patients, and all diagnoses, treatments, procedures, and other professional health care services shall be provided and performed exclusively by or under the supervision of a licensed health care personnel retained by Customer, which it, in its sole discretion, deems appropriate and in accordance with all laws. This Agreement in no way shall be construed to mean or suggest that Company is engaged or permitted hereunder to engage in the practice of medicine.
15.4. Compliance with Export Laws. Customer acknowledges that the Platform may contain technical data or elements, the export or re-export of which may be restricted to certain destinations and end users as a result of license restrictions, laws, rules, and regulations. Customer agrees not to engage in (and not to cause) export or re-export of the Platform or any part thereof without first satisfying all legal requirements, including without limitation all necessary United States and foreign government import/export licenses, approvals, or registrations. Upon request, Company shall make available its documentation related to obtained export licenses and/or license exceptions. The Platform may not be distributed, or otherwise exported or re-exported (i) into, or to a national or resident of, any country to which the United States has embargoed goods or trade restrictions; or (ii) to anyone on the OFAC Specially Designated Nationals and Blocked Persons List or the U.S. Commerce Department’s Denied Persons, Denied Entities, and Unverified List. Customer shall indemnify and hold harmless Company from and against all Losses incurred by Company as a result of Customer’s breach of this Section.
15.5. Publicity. Company and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the Parties. All public announcements by either Party concerning this Agreement are subject to prior written approval by Customer and Company, which approval shall not be unreasonably withheld. The Parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Customer agrees to allow Company to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Company and a user of the Platform.
15.6. Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
15.7. No Third-Party Beneficiaries. Except as otherwise expressly set forth herein, this Agreement is entered into for the benefit of the Parties only.
15.8. Severability; Waiver. If any provision in this Agreement is found by a court of competent jurisdiction to be invalid, the Parties agree that the court shall give effect to the Parties’ intentions as reflected in the provision, and the other provisions shall remain in full force and effect. Any waiver or failure to enforce any provisions of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
15.9. Assignment; Subcontracting. Neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned, or delayed); provided, that either Party may assign or transfer this Agreement upon written notice to the non-assigning Party if: (i) to an Affiliate, or (ii) pursuant to a change of control, reorganization, or consolidation, by operation of law, or in connection with the sale of all or substantially all of its business or assets. Any assignment or transfer in violation of this Agreement shall be null and void. Company may subcontract certain aspects of the Service to qualified third parties; provided, that any such subcontracting arrangements will not relieve Company of any of its obligations hereunder
15.10. Notices. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed received and effective (a) upon delivery if by hand; (b) on the date of receipt or refusal of receipt if by certified mail, postage prepaid, return receipt requested; or (c) on the first business day following deposit if by a nationally recognized overnight courier. Any notices, requests, demands, or other communications by Company to Customer shall be sent to the address set forth in the Order, as may be updated from time to time. Any notice sent to the attention of Company must be sent to Lightning Step Technologies, LLC, Attention: Legal Department, 5757 Woodway Drive, Suite 278, Houston, Texas 77057.
15.11. Attorneys’ Fees. If any legal action or other proceeding is brought for the enforcement or interpretation of this Agreement or any Order or SOW, or because of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this Agreement or any Order or SOW, then, if Company prevails, Company shall be entitled to recover reasonable attorneys’ fees, court costs, and all expenses incurred in that action or proceeding and at all levels of trial and appeal, in addition to any other relief to which Company may be entitled.
15.12. Entire Agreement; Counterparts. This Agreement, together with the Addenda and all Orders and SOWs (to the extent entered into), constitutes the entire agreement between the Parties and supersedes any and all oral and/or prior written agreements between the Parties with respect to its subject matter. Company may, from time to time, amend or modify any portion of this Agreement and either supply Customer with a revised copy or post a copy of the amended portion of this Agreement at https://lightningstep.com/master-agreement. Customer will be deemed to have accepted the amended or modified version of this Agreement upon Customer’s continued use of the Platform or Services after any amendments or revisions are posted. Neither (a) adding any additional products and services nor (b) making grammatical or numbering changes to this Agreement shall be considered a modification hereof, so long as such addition or change does not materially impact Customer’s then existing rights or obligations, and shall therefore not require any notice. In the event of any conflict between the terms and conditions of this Master Agreement, any Addenda, or any Order or SOW, the conflict shall be resolved in the following order: (i) the applicable Addenda; (ii) this Master Agreement; and (iii) the applicable Order or SOW. Any Order to which this Agreement is referenced or any SOW may be executed in one or more counterparts, each of which shall be deemed an original. Each Party agrees that (a) such Party may sign through an electronic signature, and (b) by doing so agrees to being subject to the provisions of the U.S. E-SIGN Act (i.e., the Electronic Signatures in Global and National Commerce Act (enacted June 30, 2000, and codified at 15 U.S.C. § 7001 et seq.)) and any state equivalent applicable to such Party.