SANDATA TECHNOLOGIES, LLC SUBSCRIPTION AGREEMENT

 

TERMS & CONDITIONS

 

This Subscription Agreement (the “Agreement”) is a legally binding contract between Sandata Technologies, LLC, a Delaware limited liability company having its principal place of business at 26 Harbor Park Drive, Port Washington, New York 11050 (“Sandata”), and the “Customer” as identified in any Sales Order entered into by the Customer for Sandata’s Products and Services. Customer’s use of Sandata’s Products and Services, constitutes Customer’s agreement to the terms and conditions of this Agreement, as they may be amended by Sandata from time to time. These terms and conditions can be found at www.sandata.com/legal/msa. Sandata and Customer shall each be referred to as a “Party” herein, and collectively as the “Parties.”

1. Definitions.

(a) “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

(b) “Authorized Users” means those persons authorized by Customer to access and use the Products and Services who possess an authorized user ID and password and for whom Customer has paid the applicable fees.

(c) “Documentation” means written manuals and instructions relating to the use and operation of the Products and Services.

(d) “Intellectual Property” means patents, trademarks, copyrights, trade secrets, moral rights, know-how, inventions, processes, content, algorithms or other proprietary rights.

(e) “Products and Services” means the products and services provided by Sandata to Customer as set forth in a Sales Order.

(f) “Sales Order” means the written description of the Products and Services to be provided by Sandata to Customer that is executed by Customer and expressly refers to this Agreement.

(g) “Upgrades” means enhancements, upgrades, updates, improvements, modifications, extensions or other changes to the Products and Services released by Sandata.

2. Services.

(a) Sandata shall use commercially reasonable efforts to provide the Products and Services in accordance with the terms and conditions of this Agreement and product specifications in effect from time to time. In the event of any conflict between the body of this Agreement and a Sales Order, the terms and conditions set forth in the body of this Agreement shall govern. The Products and Services include: (1) the provision of technical support to Authorized Users during Sandata’s regular business hours, in accordance with Sandata’s then-current technical support policies and (2) Sandata’s then-current training, in each case, as expressly set forth in a Sales Order. Customer’s employees shall complete such training prior to their use of the Products and Services. Upon Customer’s request, Sandata may provide additional technical support and training at Sandata’s then-current rates, subject to the execution of a mutually agreed upon Sales Order.

(b) Sandata may from time to time develop Upgrades to the Products and Services. Customer hereby authorizes Sandata to implement such Upgrades for use with the Products and Services, provided that such Upgrades do not have a material adverse effect on the functionality or performance of the Products and Services. When commercially practicable, Sandata shall notify Customer in advance of the implementation of any Upgrades or other changes.

(c) Customer agrees that its use of Sandata’s Products and Services and any additional software or services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Sandata with respect to future functionality or features.

(d) Authorized Users; User IDs. Except with the prior written consent of Sandata, access to the Service will be limited solely to Authorized Users. Customer shall be responsible for any and all activities that occur under Customer’s Authorized User ID accounts and Authorized Users and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Products and Services. Customer acknowledges and agrees that, as between Customer and Sandata, Customer is solely responsible and liable for, and Sandata hereby expressly disclaims all liability with respect to, all acts and omissions of any Authorized User, including without limitation, the access and use of the Products and Services by any Authorized Users and for such Authorized User's compliance with this Agreement. Customer (or, if requested by Customer, Sandata) will assign each Authorized User a unique account name and password for access to and use of the Products and Services ("User ID"). Customer shall be responsible for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it will be fully and solely responsible for all liability incurred through use of any User ID and that any use of the Products and Services under a User ID will be deemed to have been performed by Customer. Customer shall (1) notify Sandata immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (2) report to Sandata immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by Customer to infringe on the rights of others; (3) not impersonate another user of the Products and Services or provide false information to gain access to or use the Products and Services; and (4) abide by Sandata’s acceptable use policies which may be in effect from time to time.

(e) Additional Authorized Users. Authorized User subscriptions are for designated Authorized Users for use during the Authorized User Subscription Term and cannot be shared or used by more than one Authorized User but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Products and Services. Unless otherwise specified in the relevant Sales Order, (i) additional Authorized User subscriptions must be added in minimum increments of five (5); (ii) the term of the additional Authorized User subscriptions shall be coterminous with the expiration of the Authorized User Subscription Term in effect at the time the additional Authorized Users are added; and (iii) pricing for the additional Authorized User subscriptions shall be the same as that for the pre-existing Authorized User subscriptions, prorated for the remainder of the Authorized User Subscription Term in effect at the time the additional Authorized Users are added.

3. License Grant.

(a) Subject to the terms of this Agreement, Sandata grants to Customer a limited, non-exclusive, non-transferable, license to use the Products and Services as specified in a Sales Order solely for Customer’s own internal business purposes. Without Sandata’s express written consent, Customer shall not (1) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Products or Services in any way; (2) modify or make derivative works based upon the Products or Services; (3) create Internet "links" to the Products or Services or "frame" or "mirror" any content on any other server or wireless or Internet-based device; (4) make any copies of the Products or Services for any purposes; or (5) reverse engineer, reverse assemble, decompile or disassemble the Products and Services or access the Products or Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Products or Services, or (iii) copy any ideas, features, functions or graphics of the Products or Services. User licenses cannot be shared or used by more than one Authorized User.

(b) Customer may use the Products and Services only for its internal business purposes and shall not: (1) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (3) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (4) interfere with or disrupt the integrity or performance of the Products and Services or the data contained therein; or (5) attempt to gain unauthorized access to the Products and Services or any related systems or networks.

(c) Sandata may, upon reasonable notice to Customer, inspect Customer’s use of the Products and Services and audit Customer’s records for the sole purpose of confirming Customer’s compliance with this Agreement. Sandata’s audit shall be performed at Sandata’s sole cost and expense; provided, however, that if, as a result of Sandata’s audit, it is determined that the Customer owes Sandata additional fees, then Customer shall, in addition to paying for all unpaid license fees, reimburse Sandata for its reasonable costs and expenses incurred in performing such audit.

(d) The parties acknowledge Sandata’s exclusive ownership in and to the Products and Services and Intellectual Property. Nothing herein shall operate to assign or transfer ownership of the Intellectual Property or Products and Services. Sandata shall own all right, title and interest in and to any Upgrades or other improvements, refinements, derivatives or customizations to the Products and Services. Sandata reserves all rights not expressly granted herein.

(e) Customer shall at its sole cost and expense cause any third party vendors to send and/or to receive data from and to Sandata to the extent that the delivery of the Products and Services under this Agreement requires such third party vendors to send and/or to receive data from and to Sandata. In connection with the foregoing, Customer shall make all necessary arrangements with its third party vendors. Customer shall reimburse Sandata for any costs Sandata is required to bear in connection with or arising out of any such transmissions of data from and/or to such third party vendors.

4. Customer Responsibilities.

(a) Customer shall provide Sandata with complete, accurate and timely information (“Customer Information”) required for Sandata to provide the Products and Services and to enable the Products and Services to operate in accordance with their specifications. Customer shall be responsible for ensuring the accuracy, quality, timely input, integrity, legality, reliability, appropriateness and copyright of all Customer Information. Sandata shall have no liability for the deletion, correction, destruction, damage, loss or failure to store any such data. Customer will be responsible for reviewing and verifying the quality and accuracy of all Customer Information provided to Sandata, including any updates to such information. Customer shall be responsible for making all necessary disclosures to, and obtaining all required consents from, any third parties to the extent necessary to permit Sandata to provide the Products and Services. Customer shall at all times ensure that (1) Customer and its employees, representatives and/or agents are duly authorized to submit the information that is entered to the Products and Services; (2) Customer and its employees, representatives and/or agents are duly authorized to access the data requested or retrieved in connection with use of the Products and Services; and (3) Sandata is authorized to receive, process and use the information that Customer entered into the Products and Services as contemplated by this Agreement.

(b) Customer shall be responsible for maintaining user environments that meet the system specifications as specified in the Documentation, as such Documentation may be updated from time to time.

(c) Customer Data shall not (i) be defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, or harassing; (ii) contain or cause to be placed any worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information; (iii) be materially false, misleading or inaccurate; or (iv) violate any Federal, state or local laws or regulations. Company may take remedial action should Customer or any of its Authorized Users violate this Section, and such remedial action may include but shall not be limited to suspension of Services hereunder or termination of this Agreement.

(d) Customer will, to the extent it deems necessary, keep copies of all source documents of the information delivered to Sandata or inputted by Customer into the Products and Service and will maintain a procedure external to the Products and Services for the reconstruction of lost or altered data files.

(e) Customer acknowledges that Sandata's ability to deliver the Implementation Services and any other services selected by Customer on the Sales Order is dependent upon Customer's full and timely cooperation with Sandata, as well as the accuracy and completeness of any information and data Customer provides to Sandata. Sandata may adjust the delivery and performance schedule set forth in the Sales Order due to any act, omission or failure by Customer to provide such information and/or assistance. Sandata shall not be liable for any costs, expenses or liabilities resulting from the acts or omissions in Customer-provided information or delays to the delivery schedule caused by Customer or resulting from Customer's failure to fulfill any of its obligations under this Agreement or the Sales Order.

(f) Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Products and Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance or local telephone service (collectively, "Equipment"). Customer shall be responsible for ensuring that such Equipment is compatible with the Service and complies with all configurations and specifications provided by Sandata, which may be amended from time to time.

5. Fees and Payments.

(a) Customer shall pay all fees or charges to its account in accordance with the fees, charges and billing terms set forth on a Sales Order. The fees set forth in the Sales Order are based upon current requirements, specifications, volumes and quantities as communicated by Customer to Sandata and may be revised if the actual requirements, specifications, volumes or quantities vary materially from those communicated to Sandata. If Customer requests additional Products and/or Services not included in this Agreement, and Sandata agrees to provide those such Products and/or Services (i) those Products and/or Services shall be included in an amended Sales Order to be signed and added to this Agreement, (ii) any Services provided to Customer but not included in an amended Sales Order will be subject to the applicable terms of this Agreement, and (iii) unless otherwise agreed in writing, Customer shall pay Sandata’s then prevailing fee for those Products and/or Services. All fees and charges are non-refundable whether or not the Products and Services contained on a Sales Order are actively used during any period. Sandata reserves the right to increase the fees, charges and usage policies applicable to the Products and Services and to introduce new fees and charges at any time upon at least thirty (30) days prior written notice to Customer, which notice may be e-mailed to Customer or posted on Sandata’s website. Any such changes in fees, charges or usage policies shall become effective upon Customer’s acceptance of a renewal term for the Products and Services.

(b) The fees and charges due to Sandata are exclusive of all sales, use, withholding, excise, value added, ad valorem or other levies or duties imposed by taxing authorities. Customer shall be solely responsible for payment of all such taxes and charges, other than any taxes based solely on Sandata’s income.

(c) Customer shall provide Sandata with complete and accurate billing and contact information. This information includes Customer’s legal name, billing address, e-mail address and name and telephone number of an authorized billing contact. Customer shall notify Sandata of any changes to this information within thirty (30) days.

(d) All fees and charges shall be due upon receipt of an invoice by Customer. Any undisputed payment not received within thirty (30) days shall be subject to a late fee equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount permitted by applicable law, plus all expenses of collection. Any breach of Customer’s payment obligations not in dispute shall be deemed a material breach of this Agreement.

(e) In addition to any other rights granted to Sandata herein, Sandata reserves the right to suspend or terminate this Agreement and Customer’s access to the Products and Services if Customer’s account remains in arrears for more than thirty (30) days. Upon termination of this Agreement, Customer shall immediately pay all amounts then due and owing to Sandata, including any late fees. Sandata reserves the right to impose a reconnection fee in the event Customer is granted access to the Products and Services following any such termination.

6. Term and Termination

(a) Unless otherwise set forth in a Sales Order, the initial term of this Agreement (“Initial Term”) shall be for a period of one (1) year commencing on the date Customer begins using the Products and Services. Upon the expiration of each Initial Term, the term of this Agreement will renew automatically for additional terms of one (1) year each (“Renewal Term”, and together with the Initial Term, the “Term”), unless either a party notifies the other party, at least ninety (90) days prior to the end of the then-current Term that it has elected to terminate this Agreement, in which event this Agreement will terminate at the end of such Term. Unless earlier terminated in accordance with its terms, this Agreement will expire on the date the last Sales Order then in effect expires or is terminated pursuant to the terms and conditions set forth in this Agreement.

(b) Except as otherwise provided herein, either party may terminate this Agreement for cause: (i) upon the material breach of the other party, if such breach remains uncured for thirty (30) days following written notice to the breaching party or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or other proceeding is not dismissed within ninety (90) days of the filing thereof.

(c) In the event Customer or Sandata reasonably believes in good faith that any Authorized User has violated any provision of this Agreement, Sandata may immediately suspend such Authorized User's access and use of the Service upon written or email notice of such violation containing an explanation of such breach. In the event Customer knows or has reason to know or suspect that an Authorized User has violated a provision of this Agreement, Customer shall provide written notice thereof to Sandata and promptly suspend such Authorized User's access and use of the Service.

(d) Upon the expiration or termination of this Agreement, Sandata will terminate Customer’s access to the Products and Services and will cease the provision of all Services and Customer shall promptly pay all amounts due and owing hereunder.

7. Representations and Warranties.

(a) Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Sandata represents and warrants that it shall provide the Products and Services in a manner consistent with generally accepted industry practices reasonably applicable to the provision thereof and that the Products and Services will perform substantially in accordance with the Documentation, as such Documentation may be updated from time to time.

(b) Sandata represents and warrants that the Products and Services will perform substantially in accordance with its then-current published specifications.

8. Disclaimer of Warranties.

(a) Except as otherwise set forth herein, neither Sandata nor its affiliates, officers, directors, shareholders, employees or agents warrant that the Products or Services will be uninterrupted and error-free, nor do they make any warranty as to the results (including cost savings) that may be obtained from the use of the Products or Services or as to the accuracy, reliability or currency of any information or content provided therefrom. Customer acknowledges that the Products and Services may be subject to limitations, delays, outages, and other problems inherent in the use of the Internet and electronic communications and caused by actions or inactions of third parties. Sandata shall not be liable for any delays, delivery failures, or other damage resulting from such problems. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE REPRESENTATIONS, WARRANTIES, LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS AGREEMENT (1) REPRESENT THE PARTIES’ AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT THE AMOUNTS PAYABLE BY CUSTOMER TO SANDATA PURSUANT TO THIS AGREEMENT REFLECT SUCH ALLOCATION OF RISK, WITHOUT WHICH NEITHER PARTY WOULD HAVE BEEN WILLING TO ENTER INTO THIS AGREEMENT; AND (2) FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

(b) THE PRODUCTS AND SERVICES ARE PROVIDED BY SANDATA ON AN “AS IS” AND “AS AVAILABLE” BASIS. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, SANDATA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SYSTEM AND SERVICES OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, RULE, OR REGULATION, SANDATA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9. Indemnification.

(a) Sandata shall defend, indemnify and hold harmless Customer, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) suffered or incurred by them in connection with a third party claim arising out of any actual or threatened claim that the Products or Services infringe upon or misappropriates any copyright, patent, trademark, trade secret, or other proprietary or other rights of any third party. Sandata shall have no obligation to indemnify Customer to the extent the alleged infringement arises out of (1) the use of the Products and Services in combination by Customer with other data products, processes or materials not provided by Sandata and such infringement would not have occurred but for Customer’s combination; or (2) Customer’s information. Should the Products and Services as used by Customer become, or in Sandata’s opinion be likely to become, the subject of an infringement claim, Sandata shall at its option and sole expense either: (1) procure for Customer the right to continue to use the Products and Services as contemplated hereunder; (2) modify the Products and Services to eliminate any such claim that might result from its use hereunder; or (3) replace the Products and Services with equally suitable, compatible and functionally equivalent non-infringing Products and Services at no additional charge to Customer. If none of these options is reasonably available to Sandata, then this Agreement may be terminated at the option of either party hereto without further obligation or liability on the part of either party hereto except that Sandata agrees to promptly refund to Customer the pro-rata portion of any fees prepaid by Customer amortized on a straight-line basis based over the term of this Agreement. THIS SECTION 9(a) STATES THE ENTIRE OBLIGATIONS AND LIABILITY OF SANDATA, AND THE EXLUSIVE REMEDY OF THE CUSTOMER, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

(b) Customer shall defend, indemnify and hold harmless Sandata, its subsidiaries, affiliates, officers, directors, agents, employees and assigns, from and against any and all Losses suffered or incurred by them in connection with a third party claim arising out of (1) a breach by Customer of this Agreement; (2) Customer’s use of the Products or Services (3) Customer Data and/or (4) Customer’s failure to comply with laws, rules, regulations or professional standards.

(c) The indemnifying party’s obligations are conditioned upon the indemnified party: (1) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (2) taking all steps necessary to mitigate any potential damages that may result (3) granting control of the defense and settlement to the indemnifying party (provided that such settlement shall unconditionally release indemnified party of all liability) ; and (4) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.

10. LIMITATION OF LIABILITY

(a) IN NO EVENT SHALL SANDATA’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY OR DUE FROM CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL SANDATA BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PRODUCTS OR SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE PRODUCTS OR SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE USE OF THE PRODUCTS OR SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT.

(b) Subject to Section 10(a), Sandata’s liability for claims of any type or character arising from errors or omissions in the Products and Services that are caused by Sandata shall be to correct the affected Customer’s data, report or information, as the case may be. Upon the request of Customer, Sandata will correct any error or omission made by Customer in connection with the Products and Services at no additional charge to Customer.

(c) The parties shall each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the Products and Services.

11. INSPECTIONS, TESTS AND ACCEPTANCE

(a) If any Products or Services furnished or delivered in accordance with this Agreement are not in conformity with the requirements of this Agreement, Customer shall have the right to require Sandata to re-perform such Products or Services to conform to the requirements of the Agreement, at no additional cost to Customer, provided Customer notifies Sandata of any non-conformance of the Products or Services within thirty (30) days after delivery of such non-conforming Products or Services. Customer’s failure to notify Sandata of any non-conformance within said thirty (30) day period shall constitute acceptance of such non-conforming Products or Services and Sandata shall be relieved all liability with respect thereto.

12. CONFIDENTIALITY

(a) Customer acknowledges that, due to the nature of this Agreement, Sandata shall receive or have access to information from Customer that may be of a confidential or proprietary nature including, without limitation, financial records, patient medical and demographic data, and other information used by Customer for the operation of Customer’s business. Sandata acknowledges and agrees that Customer is entitled to prevent others from obtaining and utilizing Customer’s confidential and proprietary information. Therefore, except as otherwise expressly provided for herein, and except as directed by Customer, Sandata agrees to hold Customer’s confidential and proprietary information in confidence and not to disclose it or allow it to be disclosed, directly or indirectly, to any person or entity, except as may be reasonably necessary for purposes of this Agreement and then only if the recipient has agreed in writing to maintain the confidentiality of the information.

(b) Customer agrees that certain information submitted to Sandata may be aggregated by Sandata with information received from other customers of Sandata. Notwithstanding the obligations in this Agreement, Customer agrees that the Products and Services may, by removing, encoding, encrypting or otherwise concealing Customer’s personal identifiers, Customer’s personnel and Customer’s patients, de-identify Customer’s confidential and proprietary information, including without limitation, Customer Information, Customer’s business and financial records, patient medical and demographic data, utilization data, quality assurance data, outcomes data and other data reflecting the experience, condition and activities of Customer. For purposes of this Agreement “identified” Protected Health Information is as defined in the HIPAA regulations Section 164.514. Customer further agrees that the Products and Services may incorporate Customer’s confidential and proprietary information in de-identified form into aggregations or compilations of technical, medical, and business information, including but not limited to, statistical databases, data on payer billing rules, outcomes data, protocols and guidelines, financial analyses and generalized medical information (the “Compiled Information”). All de-identified information, once incorporated by the Products and Services into Compiled Information shall become the property of Sandata and shall no longer be subject to the restrictions of Section 12; and Sandata may make changes to, develop, retain, use, transmit, disclose and dispose of it for any lawful purpose; provided that in each case of disclosure the Compiled Information shall not identify Customer, any personnel or any patient of Customer’s by name or other individual identifier, and Sandata shall not disclose any key or other device to enable coded, encrypted or concealed identifying information to be disclosed or re-identified unless required by law. Sandata will indemnify Customer from and against any and all liability and costs (including reasonable attorneys' fees) that Customer may be subject to as a result of Sandata’s use of the Compiled Information. You shall not distribute or sublicense any Compiled Information.

(c) Customer recognizes that due to the nature of this Agreement, Customer shall receive or have access to information from Sandata that is of a confidential and proprietary nature including, without limitation, price lists, procedure manuals, process diagrams, software, computer programs, formats and technology for organizing and presenting data, communication formats and other technology, and Compiled Information used by Sandata for the operation of its business. Customer acknowledges and agrees that Sandata is entitled to prevent its respective competitors and others from obtaining and utilizing the confidential and proprietary information. Therefore, except as directed by Sandata or as required by law, Customer shall hold all confidential and proprietary information in strictest confidence and not to disclose it or allow it to be disclosed, directly or indirectly, to any person or entity, except as may be reasonably necessary for purposes of this Agreement and then only if the recipient has agreed in writing to maintain the confidentiality of the information. Upon any termination of this Agreement, Customer agrees to return to Sandata or, at Sandata’s option, destroy, all copies of such Confidential Information then in its possession;

(d) In the event that a party becomes legally compelled to disclose any information otherwise subject to confidentiality or use limitations of this Agreement, such party shall provide the other party with prompt notice so that such other parties may seek a protective order or other remedy. The party under a legal obligation to disclose shall disclose only that portion of such information that such party is advised by written opinion of counsel is legally required and shall use its best efforts to obtain a protective order or other reasonable assurance that any recipient shall treat such proprietary information confidentially. The obligations in Sections 12(a) and 12(c) above shall not apply to information which (1) is or becomes generally available to and known by the public (other than as a result of an unpermitted disclosure directly or indirectly by the receiving party or its affiliates, advisors or representatives); (2) is or becomes available to the receiving party on a non-confidential basis from a source other than the furnishing party or its affiliates, advisors or representatives, provided that such source is not and was not bound by a confidentiality agreement with or other obligation of secrecy to the furnishing party or any affiliate of which the receiving party has knowledge at the time of such disclosure; or (3) has already been or is hereafter acquired or developed by the receiving party independently and without violating any confidentiality agreement or other obligation of secrecy. In keeping information confidential pursuant to this Agreement, each party shall be obligated to act in a manner no less protective than the care such party uses to protect its own similar confidential and proprietary information, except that in no event shall such care be less then reasonable. The provisions in this Section 12 shall survive the termination of this Agreement and shall remain in full force and effect.

13. PROTECTED HEALTH INFORMATION

(a) Customer and Sandata agree that all member individually identifiable health-related information (“Protected Health Information”) shall be used and disclosed only as permitted by applicable state and federal laws, including without limitation applicable Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder (“HIPAA”) and in accordance with the terms and conditions of the Business Associate Agreement entered into between Customer and Sandata. Customer and Sandata shall adopt and maintain procedures consistent with applicable law to safeguard the security and confidentiality of Protected Health Information. Sandata shall cooperate and assist Customer as needed to obtain all necessary or required patient consents in compliance with applicable state and federal law. Except as required to carry out Sandata’s obligations under this Agreement or otherwise permitted under the Business Associate Agreement or applicable law, Sandata shall not disclose, sell or otherwise transfer or provide any Protected Health Information or other confidential information on any individually identifiable patient basis to any third party. In no event shall Customer sell any Protected Health Information or other confidential information of Customer, whether or not such information is individually identifying. Sandata’s standard Business Associate Agreement can be found at www.sandata.com/baa.

14. MISCELLANEOUS

(a) Amendments. No provisions in any Sales Order, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement. This Agreement may be updated by Sandata from time to time.

(b) Governing Law. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of New York applicable to the agreements made and to be performed entirely within the State of New York. The New York State Courts located in Nassau County or the Federal courts located in Suffolk County, shall have the sole and exclusive jurisdiction for any disputes.

(c) No Employee Solicitation or Hiring. Customer agrees that during the Term hereof and for a period of six (6) months after termination of this Agreement, that it shall not directly or indirectly solicit for employment or employ any person who is an employee of Sandata or its permitted assignee and who has provided service to the other party hereunder.

(d) Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform its obligations in this Agreement if such delay or failure to perform is due to any cause or condition reasonably beyond such Party’s control, including, but not limited to, severe weather conditions, acts of God, war, terrorism, government intervention, riot, embargoes, acts of civil or military authorities, earthquakes, fire, flood, accident, strikes, inability to secure transportation, facilities, fuel, energy, labor or materials.

(e) No Waiver. No delay or failure in exercising any right hereunder and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement will constitute consent to any prior or subsequent breach.

(f) Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the extent permitted by applicable law.

(g) Relationship of the Parties. Sandata’s relationship to Customer and its parent, subsidiary and affiliated companies shall be that of an independent contractor. Sandata shall be responsible for its own employees and labor relations. This Agreement does not make Sandata an agent, partner or joint venture of Customer or its parent, subsidiary or affiliated companies. Accordingly, Sandata may not bind Customer or any of its parents or affiliate companies to any third parties including, but not limited to, any labor organizations. Sandata shall be entirely responsible for its own actions.

(h) Equitable Relief. In the event Customer or any of its Authorized Users breach or threaten to breach any provision of this Agreement, Sandata shall have the right, in addition to any other remedies available to it, to seek injunctive or other equitable relief to enjoin such acts, without posting of bond or showing of actual damages, it being specifically acknowledged by the parties that any other available remedies are inadequate.

(i) Survival. Sections, 1, 5, 8, 9, 10, 12, 13 and 14 shall survive expiration or termination of this Agreement.

(j) Assignment. This Agreement shall be binding upon the parties’ respective successors and permitted assigns. Customer shall not assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of Sandata, which consent shall not be unreasonably withheld. This Agreement, and the rights and obligations herein, may be assigned by Sandata to any person or entity without the written consent of the Customer.

(k) Notices. All notices required to be given under the terms of this Agreement or which any of the parties hereto may desire to give hereunder, shall be in writing, shall be delivered via one of the following methods, and shall be deemed to have been received: (1) on the day given delivered by hand (securing a receipt evidencing such delivery); or (2) on the second day after such notice is sent by a nationally recognized overnight courier, full delivery cost paid; or (3) on the fifth day after such notice was mailed, registered mail, prepaid, return receipt requested, and addressed to the party to be notified at the addresses set forth in the Sales Order.

(l) Entire Agreement. Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and further agrees that it is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior or contemporaneous proposals, understandings and all other agreements, oral and written between the parties relating to the subject matter of this Agreement.

 

* * * END OF AGREEMENT***