Caregiver Technologies Subscription Service Agreement
THIS TECHNICAL SUPPORT SERVICES AGREEMENT (THE "AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND CAREGIVER TECHNOLOGIES INC. PLEASE READ IT CAREFULLY.
BY APPLYING FOR THE SERVICES THROUGH OUR ONLINE ATTENTIVECARE ORDERING PROCESS OR OTHERWISE, CLICKING THE "AGREE TO TERMS" BUTTON AT THE END OF THIS AGREEMENT OR BY USING THE SERVICES DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL DOCUMENTS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CLICK THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT AND DO NOT USE THE CAREGIVER TECHNOLOGIES SERVICES.
1.1. Introduction. In this Caregiver Technologies Technical Support Service Agreement ("Agreement"), “caregiver", “you” and “your” refer to each customer (“Client”) and “Caregiver Technologies”, “we”, “us” and “our” refer collectively to Caregiver Technologies, Inc. and its wholly owned subsidiaries (“Caregiver Technologies”). This Agreement explains our obligations to you, and your obligations to us in relation to the Caregiver Technologies service(s) you purchase. By purchasing Caregiver Technologies’ service(s) you agree to establish an account with us for such services. Any acceptance of your order(s) or requests for our services and the performance of our services will be deemed to occur at our offices in Oklahoma City, Oklahoma.
1.2. Various Services. Sections 1 through 12 apply to any and all Caregiver Technologies Services that you purchase under the Agreement. The terms and conditions set forth in the attached schedules to the Agreement apply only to customers who have purchased the Caregiver Technologies services referenced in those schedules. Such schedules are incorporated into this Agreement by this reference. In the event of any inconsistency between the terms of Sections 1 through 12 and the terms of the schedules, the terms of the schedules shall control with regard to the applicable Caregiver Technologies service. IMPORTANT NOTICE CONCERNING BUNDLED SERVICES: If you purchase separate Caregiver Technologies services that are sold together as a "bundled" package, as opposed to your purchasing such services separately, termination of any part of the services may result in termination of all Caregiver Technologies services provided as part of the bundled package unless arrangements are made to pay for the services separately. Please see Section 10 of this Agreement for termination terms.
2.1. "Services" shall mean the Caregiver Technologies’ technical support services used by Client and any add-on services specifically described in this Agreement. Current descriptions of the Technical Support Services can be found at the URL: http://www.caregivertech.com/doc/support
2.2. "Software" shall mean the object code version of Caregiver Technologies client code, application programming interfaces (APIs), related documentation and other client software or code which Caregiver Technologies provides to Client, including updates, to enable Caregiver Technologies to provide the Services to Client. Unless otherwise specified, Software shall not include any source code. The Software is proprietary to Caregiver Technologies and is licensed to Client under a separate End User License Agreement (EULA) at the time of download.
2.3. “Caregiver Technologies Technical Support Web Site” means Caregiver Technologies’ online technical support tools for Clients for the Caregiver Technologies Technical Support services that are part of the Services.
3. CLIENT OBLIGATIONS.
3.1. General Service Requirements. Client shall be solely responsible for:
A. Updating to the most current Software version and security updates and patches necessary to properly operate the Services; and
B. Client agrees, and hereby represents and warrants that Client shall (A) use the Services in accordance with the applicable user guides and other documentation; and (B) not use or permit others to use information obtained through the use of the Services for any purpose other than in conjunction with the Services and in a manner described in the documentation for the Services.
4. Proprietary Rights. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein ("Caregiver Technologies Intellectual Property Rights") are owned by Caregiver Technologies or its licensors, and you agree to make no claim of interest in or ownership of any such Caregiver Technologies Intellectual Property Rights. You acknowledge that no title to the Caregiver Technologies Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Caregiver Technologies or its licensors' service, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Caregiver Technologies and all right, title and interest in and to each such Derivative Work shall automatically vest in Caregiver Technologies. Caregiver Technologies shall have no obligation to grant you any right in any such Derivative Work. Except to the extent permitted by applicable law, Client shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a derivative work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Client shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.
5. CAREGIVER TECHNOLOGIES’ OBLIGATIONS.
5.1. Services. Subject to the terms in this Agreement, Caregiver Technologies agrees to (i) provide to Client the Services for which Client enrolls and pays the applicable fees. Caregiver Technologies hereby grants to Client the right to access and use the Services in accordance with the Agreement. Caregiver Technologies is not bound by nor should Merchant rely on any representation by (i) any agent, representative or employee of any third party that Merchant may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature.
5.2. Modification of Terms; Changes to Services. Except as otherwise provided in this Agreement, Client agrees that Caregiver Technologies may: (1) revise the terms and conditions of this Agreement, including without limitation modifying the service fees or payment terms; and/or (2) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective either, at Caregiver Technologies’ sole discretion, 30 days after posting of the revised Agreement or change to the Services on the Caregiver Technologies Technical Support Web Site, or upon electronic or written notification to you. You agree to periodically review the Caregiver Technologies Technical Support Web Site, including the current version of this Agreement available on the Caregiver Technologies Technical Support Web Site, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice as set forth in this Agreement. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as otherwise expressly stated herein, but you will not incur any additional fees. By continuing to use Caregiver Technologies services after any revision to this Agreement or change in Services, you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our Services; or in (ii) information posted on our Web site of a general informational nature.
5.3. Secure Transactions. Caregiver Technologies has implemented and will maintain security systems for the transmission of Client’s Transactions, consisting of encryption and "firewall" technologies that are understood in the industry to provide adequate security for the transmission of such information over the Internet. Caregiver Technologies does not guarantee the security of the Services or Transaction data, and Caregiver Technologies will not be responsible in the event of any infiltration of its security systems, provided that Caregiver Technologies has used commercially reasonable efforts to prevent any such infiltration. Client further acknowledges and agrees that Client, and not Caregiver Technologies, is responsible for the security of Transaction data or information or any other information stored on Client’s servers, and that Caregiver Technologies is not responsible for any other party’s servers (other than subcontractors of Caregiver Technologies solely to the extent Caregiver Technologies is liable for its own actions hereunder).
5.4. Technical Support for Services. Caregiver Technologies shall provide the technical support services to Clients, specific to the support package selected by Client during enrollment. Caregiver Technologies’ then-current, standard technical support descriptions for these Services shall be posted at the URL: http://www.caregivertech.com/doc/support
Our privacy statement for the Services is located on our Web site at http://www.CaregiverTech.com/doc/privacy and is incorporated herein by reference, as it is applicable to the Services. The applicable privacy statement sets forth your and our rights and responsibilities with regard to your personal information. You agree that we, in our sole discretion, may modify our privacy statement. We will post such revised statement on our Web site. You agree to monitor our Web site periodically to review such revisions. By using our services after modifications to the privacy statement, you have agreed to these modifications. You acknowledge that if you do not agree to any such modification, you may terminate this Agreement. In addition to the above, Client acknowledges and agrees that in the course of providing the Services, Caregiver Technologies will capture certain feature usage and user information (collectively, the “Data”). Client agrees to provide to Caregiver Technologies, and Caregiver Technologies shall capture, only the Data that is required to provide the Services. Caregiver Technologies agrees to use Data in its personally identifiable form only as necessary to perform the service. Caregiver Technologies shall not disclose Data to third parties or use the Data, except that Caregiver Technologies shall have the rights (i) to use the Data as necessary to perform the Services contemplated in this Agreement (including distributing the Data to third parties providing services requested by Client); (ii) to maintain the Data as long as necessary or as required by law and used internally for analysis and record keeping, internal reporting, and support purposes; (iii) to compile and disclose Data in the aggregate where individual Client Data is not identifiable, including without limitation, calculating Client averages by type of user or caregiver situation; and (iv) to provide the Data as required by law or court order, or to defend Caregiver Technologies’ rights in a legal dispute. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us as part of our services with regard to: (i) the purposes for which such third party's personal data has been collected, (ii) the intended recipients or categories of recipients of the third party's personal data, (iii) which parts of the third party's data are obligatory and which parts, if any, are voluntary; and (iv) how the third party can access and, if necessary, rectify the data you hold about them. You further agree to provide such notice and obtain such consent with regard to any third party personal data you supply to us in the future. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals or for your providing outdated, incomplete or inaccurate information.
6. FEES AND PAYMENT TERMS
As consideration for the services you purchased, you agree to pay Caregiver Technologies the applicable service(s) fees set forth on our Web site, or as otherwise provided by Caregiver Technologies concurrently with this Agreement, at the time of your selection, or, if applicable, upon receipt of your invoice from Caregiver Technologies. All fees are due immediately and are non-refundable, except as otherwise expressly noted herein or in one or more attached Schedules. Unless otherwise specified herein or on our Web site, the Services are for a one-year initial term and renewable thereafter for successive one-year periods. Any renewal of your Services with us is subject to our then-current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal. Additional payment terms may apply to the Caregiver Technologies services you purchase, as set forth in the applicable Schedules to this Agreement. Client agrees, at the request of Caregiver Technologies, to provide Caregiver Technologies with an authorized credit card name, number and date of expiration. You are solely responsible for the credit card you provide to Caregiver Technologies and must promptly inform Caregiver Technologies of any changes thereto (e.g., change of expiration date or account number). Changes should be communicated to Caregiver Technologies by contacting Caregiver Technologies customer support. All payments shall be made in U.S. dollars. All fees are non-refundable unless otherwise explicitly stated in this Agreement. If we do issue a refund, it will only be via the same payment method used by you to pay for the Services. For additional services or add-on services, Client shall either prepay Caregiver Technologies’ then-current annual prepaid fees, if available, or pay the then-current monthly fees for such services, in accordance with Sections 6.1. If Client uses Caregiver Technologies add-on services that are subject to additional standard fees that are not prepaid at enrollment, then Caregiver Technologies shall either immediately charge Client’s credit card for Caregiver Technologies’ then-current fees for such services or invoice Client for such additional standard fees, and Client shall pay such invoice immediately. You agree to pay all value added, sales and other taxes (other than taxes based on Caregiver Technologies’ income) related to Caregiver Technologies services or payments made by you hereunder. All payments due to Caregiver Technologies shall be made without any deduction or withholding on account of any tax, duty, charge or penalty except as required by law in which case the sum payable by a party in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, the Caregiver Technologies receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. Set up fees, if any, will become payable on the applicable effective date for the applicable Caregiver Technologies services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less. Client hereby authorizes Caregiver Technologies to charge Client’s credit card provided to Caregiver Technologies for the fees due for the Services, and Client shall provide to Caregiver Technologies proper debit authorization for purposes of allowing Caregiver Technologies to debit the applicable Client account to collect fees due under this Agreement. All fees owed by Client to third parties (for example, Financial Institutions, Financial Processors and Client account providers), are Client’s sole responsibility and are not covered by this Agreement.
6.1 For Monthly Service Fee Payments. Client agrees to pay to Caregiver Technologies the applicable monthly fees for the applicable Services enrolled for and used by Client (the "Monthly Service Fee") from the due date as described above in this Section 6. Monthly fees will be invoiced or debited at the beginning of the calendar month in which the Services are to be provided. Client shall pay a separate Month Service Fee for each Caregiver Technologies Services account for which Client registers. Client agrees that Caregiver Technologies shall have no obligation to provide the Services until it has received Client’s Monthly Service Fee. We will endeavor to provide you notice prior to the renewal of the Services at least fifteen (15) days in advance of the renewal date. Unless either party terminates the Agreement early in accordance with the terms herein or unless otherwise notified by Caregiver Technologies electronically or via the Caregiver Technologies Technical support web site, then for each renewal term of this Agreement, Client hereby authorizes Caregiver Technologies to charge Client’s credit card has on file for Client or invoice Client, as applicable, at the beginning of each month for the duration of the renewal period. In the event Client desires to request another payment method, Client shall contact email@example.com no less than thirty (30) days prior to the end of the applicable term. Caregiver Technologies reserves the right at the end of each term to change its fees upon written or electronic notice to Client. If Caregiver Technologies is unable to collect the Monthly Service Fee from Client for the renewal period, then Caregiver Technologies shall have the right to terminate this Agreement in accordance with the terms herein.
7. WARRANTY; DISCLAIMER
7.1 Caregiver Technologies represents and warrants that (a) it has all requisite corporate or other power to enter into this Agreement and to carry out the terms of this Agreement; (b) all corporate action on the part of Caregiver Technologies, its officers, board of directors and stockholders necessary for the performance of its obligations under this Agreement has been taken. EXCEPT AS EXPRESSLY SET FORTH ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CAREGIVER TECHNOLOGIES AND ITS LICENSORS, AS APPLICABLE, MAKE NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES OR SOFTWARE, AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF CLIENTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY CAREGIVER TECHNOLOGIES AND ITS LICENSORS. CLIENT ACKNOWLEDGES THAT NEITHER CAREGIVER TECHNOLOGIES NOR ITS LICENSORS HAVE REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY OR WITHOUT COMPROMISE OF THE SECURITY SYSTEMS RELATED TO THE SERVICES OR THAT ALL ERRORS WILL BE CORRECTED.
7.2 Client represents and warrants that (a) it has all requisite power to enter into this Agreement and to carry out the terms of this Agreement; (b) it has read and understands the entire Agreement and desires to be bound thereby; and (c) it represents and warrants that, except as expressly set forth herein, no representations of any kind or character have been made to induce it to execute and enter into this Agreement.
8. INDEMNIFICATION. This section is subject to the terms of Section 9.
Either party will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, Affiliates, distributors, franchisees and employees of the other party from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees, resulting from the indemnifying party’s material breach of any duty, representation or warranty of this Agreement. A party’s right to indemnification under the Agreement (“indemnified party”) is conditioned upon the following: prompt written notice to the party obligated to provide indemnification (“indemnifying party”) of any claim, action or demand for which indemnity is sought; control of the investigation, preparation, defense and settlement thereof by the indemnifying party; and such reasonable cooperation by the indemnified party, at the indemnifying party’s request and expense, in the defense of the claim. The indemnified party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the indemnified party’s choice at the indemnified party’s expense. The indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment that makes any admissions in the indemnified party’s name or imposes any liability upon the indemnified party.
9. LIMITATIONS ON LIABILITY
Client acknowledges that Caregiver Technologies is not responsible for providing data transmission to effect certain functions and is not responsible for the availability or performance of the Internet, or for any damages or costs Client suffers or incurs as a result of any instructions given, actions taken or omissions made by Client or any ISP. IN NO EVENT WILL CAREGIVER TECHNOLOGIES’ LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO CAREGIVER TECHNOLOGIES BY CLIENT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL CAREGIVER TECHNOLOGIES OR ITS LICENSORS HAVE ANY LIABILITY TO CLIENT OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT CAREGIVER TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Notwithstanding the above, the limitations set forth above shall be enforceable to the maximum extent allowed by applicable law.
10. TERM AND TERMINATION
10.1 Term; Renewal.
This Agreement will commence on the later of (i) the date Client accepts the terms of this Agreement (the “Effective Date”),; and will continue for a period of one (1) year, unless terminated earlier or suspended according to the provisions of this Agreement. This Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written or electronic notice, in accordance with the terms herein, of its intention not to renew the Agreement, at least thirty (30) days prior to the end of the then-current term or renewal term if termination is by Caregiver Technologies. Any renewal of your Services is subject to our then-current terms and conditions, successful completion of any applicable authentication procedure, if any, and payment of all applicable service fees at the time of renewal. Additional payment terms may apply to the Caregiver Technologies Services you purchase, as set forth herein and in the applicable Schedules to this Agreement.
10.2 Suspension and Termination. Either party hereto may, at its option, and without notice, terminate this Agreement, effective immediately, should the other party hereto (i) admit in writing its inability to pay its debts generally as they become due; (ii) make a general assignment for the benefit of creditors; (iii) institute proceedings to be adjudicated a voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it; (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization; or (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver liquidate, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such Party’s property or providing for the liquidation of such party’s property or business affairs.
A. By Client. Client may terminate this Agreement upon prior written notice to Caregiver Technologies by notifying Caregiver Technologies’ customer support electronically or in writing and following the instructions for cancellation either (i) prior to the end of the initial annual period or any annual renewal period; or (ii) for convenience. Subject to the above, Caregiver Technologies shall use commercially reasonable efforts to cancel the Services within seven (7) business days following such written notice from Client. Client shall be responsible for the payment of all fees due and payable through the effective date of termination. Termination requests for non-Caregiver Technologies, third party services may not be made through Caregiver Technologies. Client must instead contact such third parties directly to cancel such services.
B. By Caregiver Technologies. Notwithstanding Section 10.1, Caregiver Technologies may suspend Client’s access to the Services or terminate this Agreement as follows:
(i) Following ten (10) days prior electronic or written notice if (a) Client breaches the Agreement, or (b) non payment of invoice; or
(ii) Immediately, without prior notice, if Caregiver Technologies reasonably believes Client’s there is fraudulent usage of services (e.g., usage of support services by non-licensed end user of Caregiver Technologies software).
10.3 Effect of Termination.
A. Caregiver Technologies will cease providing the Services and cease charging your credit card, if applicable, for any monthly Service fees as of the expiration of the monthly billing cycle in which the termination is effective. If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs Caregiver Technologies incurs in closing your account. You agree to pay any and all costs incurred by Caregiver Technologies in enforcing your compliance with this Section. Upon termination, your rights to use the Services, and any other rights granted hereunder, shall immediately cease, and you shall destroy any copy of the materials licensed to you hereunder and referenced herein. Each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve Caregiver Technologies or Client from any liability arising prior to the termination of this Agreement. To the extent permitted by applicable law, you agree that upon termination for any reason, we may delete all information relating to your use of the Service. Notwithstanding the foregoing, the provisions of Sections 5, 7-12, Client’s obligations to pay all fees due through the effective date of termination and terms in the Schedules relating to indemnity, warranties or terms which by their nature are required to survive contract termination will survive any termination of this Agreement.
B. Bundled Services. In addition to the terms set forth above, if you purchase Services which are sold together as part of a "bundled" package of services, any termination relating to such bundle will terminate all Caregiver Technologies services included in such bundle. In such cases we may, in our sole discretion and subject to your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees, allow you to convert certain services included in the bundled services to stand alone services. Notwithstanding the above, termination of the Services will terminate any add-on services.
C. Reinstatement of Services. If Services are suspended or terminated by Caregiver Technologies due to lack of payment by Client, reinstatement of Services shall be subject to Client paying Caregiver Technologies (i) new license and set-up fees, at Caregiver Technologies’ then-current rates; and (ii) as applicable, all past due monthly fees.
11.1 Confidential Information. “Confidential Information” means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential. All source code and the terms of this Agreement will be considered Confidential Information.
11.2 Confidentiality Obligations. Each party (i) shall not disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and for purposes of performing this Agreement, and (ii) shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party’s Confidential Information only for the purpose of its performance under this Agreement. In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving party hereunder.
11.3 Limitation of Confidentiality. The Obligations set forth in Section 11.2 (“Confidentiality Obligations”) above do not apply to information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information, (iv) is disclosed with the written approval of the disclosing party, or (v) is disclosed five (5) years from the effective date of termination or expiration of this Agreement.
11.4 Exceptions to Confidentiality. Notwithstanding the Confidentiality Obligations set forth in Section 11.2 above, each party may disclose Confidential Information of the other party (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or (ii) on a “need-to-know” basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations in this Section to its legal counsel, accountants, contractors, consultants, banks and other financing sources.
12. MISCELLANEOUS TERMS
12.1 Force Majeure (Events Beyond the Parties’ Control).
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder, except for Client’s payment obligations hereunder, due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this Section shall give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof, and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided, however, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate the Agreement.
12.2 Entire Agreement and Modification.
The terms in this Agreement constitute the entire agreement between Caregiver Technologies and Client regarding its subject matter and its terms supersede any prior or simultaneous agreement, terms, negotiations, whether written or oral, or whether established by custom, practice, policy or precedent, between the parties hereto. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein. Client acknowledges and agrees that in the event a purchase order (“PO”) contains additional terms, provisions or language (“PO Terms”), those PO Terms shall be null and void and the terms of the Agreement shall prevail.
In the event that any provision of this Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
12.4 No Assignment.
Client may not assign this Agreement without the prior written consent of Caregiver Technologies.
12.5 Governing Law and Jurisdiction.
This Agreement will be governed by and construed in accordance with the laws of the State of Oklahoma without reference to its conflicts of laws principles. Each party consents to the exclusive venue and jurisdiction of the appropriate state or Federal courts in Cleveland County and the Western District of Oklahoma for any dispute arising out of or related to this Agreement. The parties acknowledge and agree that this Agreement is made and performed in Oklahoma City, Oklahoma. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
12.6 Export Restrictions.
Client acknowledges and agrees that it shall not import, export, or re-export directly or indirectly, any commodity, including Client's products incorporating or using any Caregiver Technologies products in violation of the laws and regulations of any applicable jurisdiction.
Except as otherwise expressly stated in this Agreement, all notices to Caregiver Technologies shall be in writing and delivered, via courier or certified or registered mail, to Caregiver Technologies, Inc., Attention: Legal Department, 13101 S. Pennsylvania Avenue, Oklahoma City, Oklahoma 73170, or any other address provided by Caregiver Technologies. All notices to you shall be delivered to your mailing address or e-mail address as provided by you in your account information, as updated by you pursuant to this Agreement. Unless you choose to opt-out of receiving marketing notices, you authorize Caregiver Technologies to notify you as our customer, via commercial e-mails, telephone calls and other means of communication, of information that we deem is of potential interest to you, including without limitation communications describing upgrades, new products and services or other information pertaining to the Services or other Caregiver Technologies offerings relating to Internet security or to enhancing your identity on the Internet. Notwithstanding the above, Client shall not have the right to opt-out of service or support notices relating to the Services, including without limitation, notices of service modifications, security, performance issues or technical difficulties.
12.8 Government Use.
If you are a branch or agency of the United States Government, the following provision applies. The software and any related documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995).
12.9 Headings. The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
12.10 Independent Contractors. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
12.11 Non-Disparagement; Publicity. During the term of the Agreement, neither party will disparage the other party or the other party’s trademarks, web sites, products or services, or display any such items in a derogatory or negative manner on any web site or in any public forum or press release. Unless otherwise stated herein, neither party shall issue a press release or otherwise advertise, make a public statement or disclose to any third party information pertaining to the relationship arising under this Agreement, the existence or terms of the Agreement, or referring to the other party in relation to the Agreement without the other party’s prior written approval.
12.12 Costs. Except as expressly stated in the Agreement, each party shall be solely responsible for the costs and expenses of performing its obligations hereunder.
Technical Support Services: http://www.CaregiverTech.com/doc/support
Market Support firstname.lastname@example.org
Attached Schedules: None