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WOUNDALLY SOFTWARE AS A SERVICE AGREEMENT TERMS OF SERVICE

Access or use of the Service offered by WoundAlly, a California corporation (“WoundAlly”) is permitted only upon WoundAlly's execution of an “Acceptance Form” signed by the Customer, and Customer's payment of the Implementation Fees indicated on the Acceptance Form. Such Acceptance Form signifies Customer's acceptance of and agreement to the Agreement which consists of (1) these “Terms of Service”, and (2) all other terms stated in the Acceptance Form.

  • DEFINITIONS.
    • “Acceptance Form” means the attached form evidencing Customer's initial subscription for access to and use of the Service, whether submitted online and digitally signed by Customer or in written form and manually signed by Customer. The Acceptance Form signifies Customer's acceptance of and agreement to (1) these Terms of Service, and (2) all other terms stated in the Acceptance Form.
    • “Aggregated Statistics” means data and information related to Customer's use of the Service that is used by WoundAlly in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service. As Aggregated Statistics are anonymized and used solely in the aggregate, the data within the Aggregated Statistics data set are not identifiable or traceable to Customer or its affiliates, do not include references to Customer or its affiliates, and do not include any Customer Proprietary and Confidential Information or Customer Personal Data.
    • “Agreement” means the Acceptance Form executed by WoundAlly, together with the Terms of Service, and any materials available on WoundAlly's website specifically incorporated by reference in the Terms of Service, as such may be updated by WoundAlly from time to time in its sole discretion, and any Statement(s) of Work which may be mutually agreed to by the parties.
    • “Customer Data” means, other than Aggregated Statistics, data, information, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a User in connection with the use of the Service. “Customer Personal Data” means any and all personal data and information contained within the Customer Data concerning Customer and/or Users, employees, contractors, customers, or patients.
    • “Effective Date” means the effective date of the Agreement as indicated on the Acceptance Form. “Host” means the computer equipment from which the Service is provided and which stores the data and information transmitted through and/or generated through the use of the Service.
    • “Initial Subscription Term” means the initial Subscription Term of the Agreement beginning on the date of Customer's first commercial use of the Service (the “Launch Date”), and ending on the 1-month anniversary of the Launch Date.
    • “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
    • “Other Services” means all technical and non-technical services performed or delivered by WoundAlly under this Agreement, but excluding the Service. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a separate Statement of Work and mutually agreed to by the parties. All Other Services will be provided on a non-work-for-hire basis.
    • “Proprietary and Confidential Information” means any information, reasonably considered proprietary, sensitive or private, which is disclosed to the Receiving Party and/or its employees, or made available to Receiving Party and/or its employees through access to or inspection of software, facilities, and/or information, including, but not limited to (i) trade secrets, designs, products, descriptions, parts descriptions, test data, other data, reports, recommendations, plans, proposals, financial information, customer or client lists and information, pricing and payment information, methods, programming, performance specifications, and other documents of every description disclosed to and made available to Receiving Party by the Supplying Party; (ii) WoundAlly Technology; (iii) Customer Data; and (iv) Customer Personal Data.

      As used herein “Receiving Party” means the party who receives Proprietary and Confidential Information pursuant to this Agreement, including such party's parent, subsidiary and/or affiliated companies and “Supplying Party” means the party making Proprietary and Confidential Information available pursuant to this Agreement.

    • “Renewal Subscription Term” means each successive 1-month renewal of the Agreement after the Initial Subscription Term.
    • “Service” means WoundAlly's web-hosted software service which provides use of the WoundAlly Software, Technology and Content, and which is made available to Customer over a network during the Subscription Term.
    • “Statement of Work” means a separate document mutually agreed to by the parties identifying any Other Services to be performed by WoundAlly and setting out any additional terms regarding the performance of and payment for such Other Services.
    • “Subscription Term” means the period(s) during which Customer and its Users are licensed to use the Service pursuant to the Agreement.
    • “Terms of Service” means these terms of service.
    • “User'' means Customer, and each of Customer's principles, owners, employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Service has been purchased hereunder. Each such User who is also a licensed provider of medical services is also referred to as a “Provider User” in the Acceptance Form.
    • “WoundAlly Content” means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service.
    • “WoundAlly Software” means the object code version of any tools, applications and/or other software to which Customer is provided access as part of the Service, including any updates and/or new versions.
    • “WoundAlly Technology” means all of WoundAlly's proprietary technology (including WoundAlly Software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by WoundAlly in providing the Service.
  • LICENSE TO THE SERVICES AND RESTRICTIONS.
    • During the Subscription Term, Customer and Users, up to the number of Users set forth in the Acceptance Form, are hereby granted a non-exclusive, non-sublicensable, non-assignable, license to access and use the Service solely for Customer's internal business operations subject to the terms of the Agreement. All rights not expressly granted to Customer are reserved by WoundAlly.
    • Customer acknowledges that the Agreement is a services agreement and WoundAlly will not be delivering copies of the WoundAlly Software to Customer as part of the Service. Subject to the limited license granted herein, WoundAlly shall own all right, title and interest in and to the Service, the WoundAlly Content, the WoundAlly Software, the WoundAlly Technology, the Aggregated Statistics, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the operation of the Service, including all modifications, improvements, upgrades, derivative works thereof and thereto, and all Intellectual Property Rights therein and thereto. The Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the WoundAlly Content, the WoundAlly Software, the WoundAlly Technology, the Aggregated Statistics, or the Intellectual Property Rights owned by WoundAlly. The WoundAlly name, the WoundAlly logos, and the product names associated with the Service are trademarks of WoundAlly, and no right or license is granted to use them.
    • Customer shall not, and shall not permit anyone to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, the WoundAlly Content, the WoundAlly Software, or the WoundAlly Technology, in any way; (ii) modify or make derivative works based upon the Service, the WoundAlly Content, the WoundAlly Software, or the WoundAlly Technology; (iii) create Internet “links” to the Service or “frame” or “mirror” any WoundAlly Content, WoundAlly Software, or WoundAlly Technology on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service, the WoundAlly Content, the WoundAlly Software, or the WoundAlly Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, the WoundAlly Content, the WoundAlly Software, or the WoundAlly Technology, or (c) copy any ideas, features, functions or graphics of the Service, the WoundAlly Content, the WoundAlly Software, or the WoundAlly Technology.
    • Customer agrees that (i) any and all use of the Service by Customer and Users shall be in accordance with the Agreement; (ii) Customer is responsible for ensuring any and all use of the Service by Customer and Users complies with the terms of the Agreement; (iii) any use of the Service by Customer and Users which is not in compliance with the Agreement (such as, by example but not by limitation, permitting the use of the Service by any third party, or using the Service to publish content that violates the intellectual property or other rights of any third party, including but not limited to content that is illegal, obscene, indecent, pornographic, discriminatory, fraudulent, deceptive, misleading, defamatory, trade libelous, slanderous, libelous, unlawfully harassing or otherwise injurious to any third party), shall be a material breach of the Agreement; and (iv) in the event WoundAlly learns that an User has used the Service in a manner that is not in compliance with the Agreement, WoundAlly may, with notice to Customer, prohibit such User from accessing the Service.
    • Customer and Users may not access the Service if Customer is a direct competitor of WoundAlly, and Customer and Users may not access the Service for any purposes in competition with WoundAlly.
    • Customer agrees that individual User accounts cannot be shared or used by more than one individual User.
    • Customer and Users may use the Service only for Customer's internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) 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; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service.
  • ADDITIONAL WOUNDALLY RESPONSIBILITIES.
    • Confidentiality of Customer Data. WoundAlly's use of Customer Data is subject to the license granted by Customer to WoundAlly under Section 4.5 and shall be limited to WoundAlly's performance of this Agreement and the provision of the Service to Customer. Any and all other use of Customer Data by WoundAlly is strictly prohibited, and all Customer Data shall be held by WoundAlly in strict confidence. WoundAlly may not disclose Customer Data to any third party without Customer's prior written consent, unless such disclosure is legally required pursuant to applicable law, rule, regulation, government authority, duly authorized subpoena, or court order. Further, prior to Customer's use of the Service to transmit or store Customer Data which contains Protected Health Information (“PHI”) or Electronic Protected Health Information (“ePHI”) as defined by the Health Insurance Portability and Accountability Act of 1996 and its related regulations (“HIPAA”), WoundAlly and Customer shall have entered into a separate Business Associate Agreement substantially in the form attached hereto as Attachment 4. In the event WoundAlly receives a subpoena or otherwise becomes aware of events that may legally require it to disclose Customer Data, it will promptly notify Customer and cooperate with Customer (at Customer's expense) to obtain an order quashing or otherwise modifying the scope of such subpoena or legal requirement, in an effort to prevent the disclosure of Customer Data.
    • Storage of Customer Data. All Customer Data will be stored on the Host during the Subscription Term.
    • Notwithstanding anything to the contrary in this Agreement, WoundAlly may monitor Customer's use of the Service and collect and compile Aggregated Statistics. As Aggregated Statistics are anonymized and used solely in the aggregate, the data within the Aggregated Statistics data set are not identifiable or traceable to Customer or its affiliates, do not include references to Customer or its affiliates, and do not include any Customer Proprietary and Confidential Information or Customer Personal Data. As between WoundAlly and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by WoundAlly. Customer acknowledges that WoundAlly may compile Aggregated Statistics based on Customer Data input into the Service. Customer agrees that WoundAlly may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
  • ADDITIONAL CUSTOMER RESPONSIBILITIES.
    • Compliance with Laws. Customer is solely responsible for all activity occurring under Customer's account and individual User accounts, and Customer shall comply with all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Service, including those laws related to data privacy, international communications and the transmission of technical or personal data. Customer acknowledges that WoundAlly exercises no control over the content of the information transmitted by Customer or Users through the Service. Customer and Users shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
    • Unauthorized Use; False Information. Customer shall: (i) notify WoundAlly immediately of any unauthorized use of any User account or password or any other suspected breach of security known or suspected by Customer or any User, and (ii) notify WoundAlly immediately and use reasonable efforts to stop any unauthorized use of the Service or copying of the WoundAlly Content, the WoundAlly Software, or the WoundAlly Technology known or suspected by Customer or any User.
    • Users. Customer shall be solely responsible for the acts and omissions of its Users. WoundAlly shall not be liable for any loss of data or functionality caused by Users.
    • Customer Data. All Customer Data will be stored on the Host. Customer is solely responsible for collecting, inputting and updating all Customer Data stored on the Host, and Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. WoundAlly shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data unless it can be shown that WoundAlly (i) caused the deletion, destruction, damage, loss or failure to store the Customer Data, or (ii) caused the Customer Data to be incorrectly stored.
    • License from Customer. Subject to the terms and conditions of the Agreement, Customer grants to WoundAlly a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Data solely as necessary to provide the Service to Customer.
    • Third Party Interactions. During use of the Service, Customer and Users may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Customer and the applicable third-party. WoundAlly shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and Users and any such third-party. WoundAlly does not endorse any sites on the Internet that are linked through the Service. WoundAlly provides these links to Customer and Users only as a matter of convenience, and in no event shall WoundAlly be responsible for any content, products, or other materials on or available from such sites. WoundAlly provides the Service to Customer pursuant to the terms and conditions of the Agreement. Customer recognizes, however, that certain third-party providers of ancillary software, hardware or services may require Customer's agreement to additional or different license or other terms prior to use of or access to such software, hardware or services.
  • PAYMENT AND SUSPENSION OF SERVICE.
    • Customer shall pay all fees or charges to Customer's account in accordance with the Customer Specific Terms indicated on the Acceptance Form and/or any Statement of Work.
    • All payment obligations are non-cancelable and all amounts owed and paid are non-refundable. Customer is responsible for paying for the Service for the entire Subscription Term, whether or not the Service is actively used. All fees and charges are stated in United States Dollars and must be paid by Customer to WoundAlly in United States Dollars. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
    • WoundAlly's fees and charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on WoundAlly's income.
    • Customer agrees to provide WoundAlly with complete and accurate billing and contact information. This information includes Customer's legal name, street address, e-mail address, and name of an authorized billing contact. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer provides is false or fraudulent, WoundAlly reserves the right to terminate Customer's access to the Service in addition to any other legal remedies.
    • All payments not received by WoundAlly by the due date shall accrue interest at the rate of one and one half percent (1 ½%) per month or the maximum rate of interest allowed by law, plus all expenses of collection.
    • Suspension for Non-Payment. WoundAlly reserves the right to suspend delivery of the Service to Customer if Customer's account becomes delinquent (falls into arrears). WoundAlly shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Service in accordance with this Section 5.6. Further, nothing in this Section 5.6 will limit WoundAlly's right to terminate the Agreement for Customer's material breach. Customer will continue to be charged for the Service during any period of suspension. After a suspension of the Service under this Section 5.6, and upon Customer's payment of all delinquent fees and charges payable to WoundAlly, WoundAlly shall recommence delivery of the Service to Customer.
    • Suspension for Ongoing Harm. WoundAlly reserves the right to suspend delivery of the Service to Customer if WoundAlly reasonably concludes that the use of the Service by Customer or a User is causing immediate and ongoing harm to WoundAlly or others. In the extraordinary case that WoundAlly must suspend delivery of the Service, WoundAlly shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. WoundAlly shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Service in accordance with this Section 5.7. Further, nothing in this Section 5.7 will limit WoundAlly's right to terminate the Agreement for Customer's material breach. Customer will continue to be charged for the Service during any period of suspension.
  • TERM AND TERMINATION.
    • Term of Agreement, Renewal and Non-Renewal. The Agreement commences on the Effective Date; however the Initial Subscription Term shall commence on the date of Customer's first commercial use of the Service (the “Launch Date”), and shall continue for a 1-month period thereafter (the “Initial Subscription Term”) unless earlier terminated. In the event the Agreement has not been earlier terminated, upon expiration of the Initial Subscription Term, the Agreement shall automatically renew for successive 1-month periods (each a “Renewal Subscription Term”) at WoundAlly's then-current fees and charges for the Service in the applicable Renewal Subscription Term or as may otherwise be stated in the Acceptance form. Except as otherwise provided in the Agreement, either party may terminate the Agreement, effective only upon the expiration of the then-current Subscription Term (either the Initial Subscription Term or a Renewal Subscription Term), by notifying the other party in writing at least thirty (30) days prior to the expiration of the then-current Subscription Term (either the Initial Subscription Term or a Renewal Subscription Term). In the event of a termination pursuant to this Section 6.1, Customer Data shall remain available on the Host for export to Customer's computer systems and electronic storage media for a period of thirty (30) days after the effective date of such termination. Customer agrees and acknowledges that WoundAlly has no obligation to retain Customer Data on the Host beyond thirty (30) days from the effective date of termination, and may delete all Customer Data on or after the thirty-first (31st) day from the effective date of termination.
    • Termination for Cause. Either party may terminate the Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach. In the event of a termination pursuant to this Section 6.2, Customer Data shall remain available on the Host for export to Customer's computer systems and electronic storage media for a period of thirty (30) days after the effective date of such termination. Customer agrees and acknowledges that WoundAlly has no obligation to retain Customer Data on the Host beyond thirty (30) days from the effective date of termination, and may delete all Customer Data on or after the thirty-first (31st) day from the effective date of termination.
    • Effect of Termination.
      1. Upon termination of the Agreement, WoundAlly shall immediately cease providing the Service and all rights granted to Customer under the Agreement shall terminate.
      2. If WoundAlly terminates the Agreement due to a breach by Customer, then Customer shall immediately pay to WoundAlly all amounts then due under the Agreement. If Customer terminates the Agreement due to a breach by WoundAlly, then WoundAlly shall immediately repay to Customer all pre-paid amounts for the Service to be delivered after the termination date.
  • WARRANTIES.
    • Representations and Warranties. Customer and WoundAlly each represent and warrant that they have the legal power and authority to enter into the Agreement. WoundAlly represents and warrants that (1) it owns all rights in the WoundAlly Technology; (2) the WoundAlly Technology does not infringe on the Intellectual Property Rights of any third parties; (3) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (4) it will not knowingly introduce any virus or other harmful components in the Service and will maintain industry standard security measures to prevent such introduction; and (5) it will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data designed to prevent unauthorized or accidental destruction, corruption, loss or alteration, access, intrusion or other interference by any unauthorized third parties and are, at a minimum, consistent with the then-current industry best practices. Customer represents and warrants that Customer has not provided any false information to gain access to the Service and that Customer's billing information is correct.
    • Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, INCLUDING AS PROVIDED IN SECTION 7.1 ABOVE, WOUNDALLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY WOUNDALLY CONTENT. WOUNDALLY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL WOUNDALLY CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WOUNDALLY .
  • LIMITATION OF LIABILITY. EXCLUDING THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT AND THE PARTIES' RESPECTIVE OBLIGATIONS UNDER THE AGREEMENT REGARDING THE USE AND DISCLOSURE OF THE PARTIES' RESPECTIVE PROPRIETARY AND CONFIDENTIAL INFORMATION, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT OR THE SERVICE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY'S AGGREGATE LIABILITY FOR DAMAGES UNDER THE AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.XCLU
  • INDEMNIFICATION.
    • Indemnification by WoundAlly. If a third party makes a claim against Customer that the Service infringes any patent, copyright or trademark, or misappropriates any trade secret, WoundAlly shall defend Customer and its directors, officers and employees against the claim at WoundAlly's expense and WoundAlly shall pay all losses, damages and expenses (including reasonable attorneys' fees) finally awarded against such parties or agreed to in a written settlement agreement signed by WoundAlly, to the extent arising from the claim. WoundAlly shall have no liability for any claim based on (a) the Customer Data, (b) modification of the Service not authorized by WoundAlly, or (c) use of the Service other than in accordance with the Agreement. WoundAlly may, at its sole option and expense, procure for Customer the right to continue use of the Service, modify the Service in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.
    • Indemnification by Customer. If a third party makes a claim against WoundAlly that the Customer Data infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend WoundAlly and its directors, officers and employees against the claim at Customer's expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys' fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
    • Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party's expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
  • PROPRIETARY AND CONFIDENTIAL INFORMATION. The parties acknowledge that, prior to the date hereof and in connection with this Agreement, they have received or may receive Proprietary and Confidential Information from each other. Each Receiving Party agrees that it will, in perpetuity:
    • use the Proprietary and Confidential Information of the other only as permitted or required under this Agreement;
    • continue to keep confidential all Proprietary and Confidential Information;
    • unless otherwise agreed to in writing by the Supplying Party, not directly or indirectly cause or permit the Proprietary and Confidential Information of the Supplying Party to become known to any third parties, nor disclose Proprietary and Confidential Information of the Supplying Party to any other person, corporation or other business entity except as provided elsewhere in this Agreement;
    • disclose Proprietary and Confidential Information only to the extent required by law, provided notice is given to the Supplying Party of such requirement as soon as practicable and reasonable assistance is rendered to the Supplying Party, if requested, to prevent such disclosure;
    • not directly or indirectly copy, distribute, or modify the Proprietary and Confidential Information (except as permitted hereunder) without the prior written consent of the Supplying Party;
    • exercise the same degree of care to safeguard the confidentiality of the Proprietary and Confidential Information as it would exercise in protecting the confidentiality of similar property of its own but in no event less than reasonable care; and
    • use its best efforts to prevent inadvertent or unauthorized disclosure or publication of any Proprietary and Confidential Information.

      • If it appears that Receiving Party has disclosed, or has threatened to disclose, Proprietary and Confidential Information of Supplying Party in violation of this Agreement, Supplying Party shall be entitled to obtain a temporary and/or permanent injunction against Receiving Party, without posting bond or other security, to restrain such party from disclosing such Proprietary and Confidential Information. In addition to such injunctive relief, Supplying Party shall be entitled to pursue any and all additional remedies, including a claim for monetary damages, and/or other equitable relief.

  • GENERAL PROVISIONS.
    • Non-Exclusive Service. Customer acknowledges that the Service is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict WoundAlly's ability to provide the Service or other technology, including any features or functionality first developed for Customer, to other parties.
    • Feedback. To the extent Customer provides feedback, suggestions, or recommendations related to Customer's use of the Service (collectively, “Feedback”), WoundAlly will own all rights, title, and interest in such Feedback, provided, however, (i) Feedback is provided “As Is” without warranties of any kind, (ii) WoundAlly's use of Feedback is at WoundAlly's sole risk, and (iii) Feedback shall not include Customer Data, Customer's Confidential Information, or Custom Work.
    • Custom Work. In the event Customer and WoundAlly enter into a Statement of Work or other separate written agreement in which the parties intend for the creation, development, or fabrication of certain software, features, functionality, workflows, or work product that are unique to Customer or relate to Customer's written request to WoundAlly, including any modifications, enhancements, or derivatives of the foregoing (collectively, “Custom Work”), such Custom Work shall be made exclusive to Customer, and its Management Services Organization and clients, in accordance with Customer's rights or license to use the Service as set forth herein and WoundAlly shall not provide, license, distribute, assign, sell, or make available in any manner the Custom Work to any third party without Customer's prior written consent. The foregoing restriction shall continue following the expiration or termination of this Agreement and/or the applicable Subscription Term. For the avoidance of doubt, WoundAlly shall own all title and interest in the Custom Work subject to the restriction set forth above.
    • Customer Personal Data. Customer acknowledges and agrees that WoundAlly's performance under the Agreement may require WoundAlly to process, transmit and/or store Customer Personal Data, and the parties agree that WoundAlly may process, transmit and/or store Customer Personal Data only to the extent necessary for, and for the sole purpose of, enabling WoundAlly to perform its obligations under the Agreement. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of Customer Data, including Customer Personal Data, and Customer shall be responsible as sole data controller for complying with all applicable data protection or similar laws. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Customer Personal Data in Customer Data.
    • Assignment. Neither party may assign the Agreement or any right under the Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign the Agreement to an acquirer of all or substantially all of the business of such party to which the Agreement relates, whether by merger, asset sale or otherwise; provided such acquirer is not a competitor of the other party. The Agreement shall be binding upon and inure to the benefit of the parties' successors and permitted assigns. Either party may employ subcontractors in performing its duties under the Agreement, provided, however, that such party shall not be relieved of any obligation under the Agreement.
    • Notices. Except as otherwise permitted in the Agreement, notices under the Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted, if sent electronically, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the Acceptance Form(s).
    • Force Majeure. Excluding the payment of WoundAlly's invoices under the Agreement when due, each party will be excused from performance for any period during which, and to the extent that, such party is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
    • Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of the Agreement shall not constitute a waiver of any other or subsequent breach.
    • Severability. If any term of the Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of the Agreement shall remain in full force.
    • Entire Agreement. The Agreement (including any Exhibits thereto) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of the Agreement.
    • Survival. Sections 2.2, 2.3, 4, 6.3, 7, 8, 9, 10 and 11 of the Agreement shall survive the expiration or termination of the Agreement for any reason.
    • Publicity. WoundAlly may include Customer's name and logo in its customer lists and on its website. Upon signing, WoundAlly may issue a high-level press release announcing the relationship and the manner in which Customer will use the Service. WoundAlly shall coordinate its efforts with appropriate communications personnel in Customer's organization to secure approval of the press release if necessary.
    • Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Service. Customer agrees that such export control laws govern its use of the Service (including technical data) and any services deliverables provided under the Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from the Service (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
    • No Third Party Beneficiaries. The Agreement is an agreement between the parties, and confers no rights upon either party's employees, agents, contractors, partners or customers or upon any other person or entity.
    • Independent Contractor. The parties have the status of independent contractors, and nothing in the Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in the Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party's personnel.
    • Governing Law and Venue. All claims or disputes regarding the breach or interpretation of the Agreement, or arising from or relating to the Agreement, shall be determined under the applicable Federal laws and/or the laws of the State of California excluding its conflict of laws principles. Any and all legal actions or proceedings arising from or concerning the interpretation and/or enforcement of this Agreement shall be venued in the state of California, county of Los Angeles, and the parties hereby consent to such venue.
    • Compliance with Laws. The parties shall comply with all applicable local, state, national and foreign laws in connection with the delivery and use of the Service, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
    • Dispute Resolution. Customer's satisfaction is an important objective to WoundAlly in performing its obligations under the Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of the Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.

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