Terms of Service
These Terms of Service (“Terms of Service”) govern the use of the Subscription Services and form part of the Agreement between Troy Group, Inc. (“Company”) and the Customer into which they have been incorporated into by the parties.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. The definitions and rules of interpretation in this Section apply to this Agreement.
1.1. “Agreement” means the DischargeRx Software as a Service Agreement executed by the Company and Customer, which incorporates these Terms of Service, and identifies the Subscription Services, Initial Term, initial Fees, Implementation Services, and Implementation Fees.
1.2. “Authorized Users” means those employees and agents of Customer (for the avoidance of doubt, Customer includes its affiliates and subsidiaries), who are authorized by Customer to use the Subscription Services and Documentation for Customer’s internal business purposes.
1.3. “Confidential Information” means all information relating to the business or affairs of a disclosing party that is not generally known to the public, including but not limited to, technical or non-technical data, software (whether in object or source code form), formulae, tools, patterns, plans, compilations, programs, devices, methods, techniques, drawings, processes, financial data, customer data, pricing information, lists of actual or potential customers or suppliers, marketing plans and business strategies, and also means and includes the terms and conditions of this Agreement (but not its existence). Confidential Information of Company (as a disclosing party) also includes and means the Software’s source and object code. Confidential Information of Customer (as a disclosing party) also includes Customer Data. Further, Confidential Information includes information that a reasonable person would determine to be proprietary or confidential when taking into consideration its nature and the circumstances under which it is disclosed. Confidential Information will not include (i) information that becomes generally available to the public other than as a result of unauthorized disclosure by the recipient or persons to whom the recipient has made such information available, and (ii) information available to the recipient on a non-confidential basis prior to receipt from the disclosing party, or received from a third party lawfully entitled to disclose the information and who does not have any confidence or secrecy obligations to the disclosing party.
1.4. “Customer” is defined in the Agreement.
1.5. “Customer Data” means any Customer information entered into the Subscription Services including, but not limited to information regarding patients and medications prescribed to such patients (which may include “Protected Health Information” or “PHI”), provided by the Customer or inputted by the Customer or Company on the Customer’s behalf for the purpose of using the Subscription Services.
1.6. “Data Center” means the Company facility or third-party facilities at which the Software is located.
1.7. “Documentation” means user documentation and materials made available to Customer by Company online at www.troyrx.com/support-policy or such other web address notified by Company to Customer from time to time that sets out a description of the Subscription Services and user instructions for the Subscription Services, for use with the Subscription Services, as may be periodically updated by the Company from time to time.
1.8. “Fees” means the Subscription Service fees, Implementation fees and POC use fees described in the Agreement.
1.9. “Implementation Services” means the implementation services provided by Company as identified in the Project Plan but does not include the Subscription Services.
1.10. “Initial Term” is defined in the Agreement.
1.11. “Renewal Term” is defined in the Agreement.
1.12 “Software” means the online/offline software applications provided by Company as part of the Subscription Services whose functionality is described in the Documentation.
1.13. “Project Plan” means a document provided by the Company that describes the Implementation Services to be provided by Company to Customer.
1.14. “Subscription Fees” means the subscription fees payable by Customer to Company for the Subscriptions Services, as set out in the Agreement.
1.15. “Subscription Services” or “Services” means the hosted secure printing solutions, along with all infrastructure and software related thereto, identified in the Agreement, and any modifications periodically made by Company, but does not include the Implementation Services.
1.16. “Support Service Policy” means Company’s policy for providing support and Service Level Agreement in relation to the Subscription Services made available to Customer by Company online at www.troyrx.com/support-policy or such other website address to which the Customer may be directed from time to time, as may be periodically updated by the Company from time to time.
1.17. “Term” is defined in the Agreement.
2. Order of Priority.
In the event of conflict between the terms of the Agreement and the terms of these Terms of Service, the terms of the Agreement shall control.
3. Billing and Payment.
3.1. Billing. All Fees are invoiced in USD. Customer will be invoiced upon execution of the Agreement and Fees for the Initial Term and Implementation are due within thirty (30) days of the date of such invoice. Customer’s Implementation may be suspended if Fees for the Initial Term are not received with thirty (30) days due date, and Customer’s account may be suspended and inaccessible if such Fees are not received within thirty (30) days of due date. Fees for Renewal Terms shall be invoiced sixty (60) days in advance of the start date of each Renewal Term and shall be due by the start date of such Renewal Term.
3.2. Payment. Payment of undisputed amounts is due within thirty (30) days or sixty (60) days of invoice receipt by Customer in accordance with Section 3.1, without set off or deduction.
3.3. Suspension of Subscription Services. If the undisputed portion of Company’s invoice is not paid when due, Company may suspend the Subscription Services immediately until all undisputed amounts owed have been paid. If Company suspends the Subscription Services, Company will promptly restore the Subscription Services upon Customer’s payment of such undisputed portion of Company’s invoice. A reactivation fee of $500 would be invoiced to the customer.
3.4. Disputed Invoices. Customer may dispute an invoice or any portion thereof provided such actions are in good faith.
3.5. Taxes and Fees. Prices for Fees are exclusive of applicable sales or use taxes, which, if applicable, shall be paid by Customer but shall not include any tax on Company’s income. Company will remit any sales or use taxes collected on Customer’s behalf to the appropriate government agency.
3.6. Price Increases. The pricing in the Agreement is firm for the Initial Term of the Agreement. Company may elect to change pricing for Subscription Services for any Renewal Term; provided it provides Customer written notice of such pricing change at least ninety (90) days prior to beginning of the applicable Renewal Term. The maximum increase for any Renewal Term shall not exceed the greater of five percent (5%) or the percentage increase in the Consumer Price Increase, All Cities Average, All Items as published by the US Dept. of Labor for the most recent twelve (12) months (or its equivalent).
4. Access to Subscription Services.
4.1. In consideration of Customer’s payment of the applicable Fees, and the execution of this Agreement by both parties, Company grants Customer a non-exclusive, non-revocable during the Term (other than as expressly provided herein), non-royalty bearing and fully paid up (other than the Subscription Fee), worldwide, non-sublicensable (other than to Customer’s subsidiaries and affiliates), non-transferable, and limited right to access, use, and receive the Subscription Services, Software, and the Documentation during the Term solely for the Customer’s internal business operations.
4.2. Customer must have a high speed Internet connection, and hardware and software that is compatible with the Subscription Services, as set out in the Documentation. Company has no responsibility to supply Customer with the connection, hardware or software required by the Documentation.
5. Conditions of Use. Customer shall use commercially reasonable endeavors to prevent any unauthorized access to, or use of, the Subscription Services, Software and/or the Documentation and, in the event Customer becomes aware of any such unauthorized access or use, promptly notify Company. Customer will not:
5.1. Transfer this Agreement or any rights granted to Customer hereunder to use the Subscription Services to any other person or entity other than its affiliates and subsidiaries;
5.2. Sell, re-license (other than to its affiliates and subsidiaries), rent, lease, or commercially exploit (other than for Customer’s internal business purposes) the Subscription Services;
5.3. Use the Subscription Services in the operation of a service bureau or in any manner that involves the processing of third party data (other than for Customer’s internal business purposes, which is acceptable), except as permitted by Company;
5.4. Make the Subscription Services available to anyone who is not an Authorized User or authorized under the license grant in Section 4;
5.5. Attempt to copy, modify, or duplicate all or any portion of the Subscription Services, Software and/or Documentation (as applicable) in any form or media or by any means to sell services to third parties except as permitted by this Agreement;
5.6. Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Subscription Services, Software and/or Documentation to sell services to third parties;
5.7. Copy any proprietary graphic in, or reverse engineer the Software;
5.8. Access the Subscription Services and Documentation if Customer is an employee of an Company competitor that offers the same or similar services;
5.9. Use the Subscription Services in a way that violates any criminal or civil law;
5.10. Load test the Subscription Services in order to test scalability; or,
5.11. Access, store, distribute or transmit any viruses, or any material during the course of its use of the Subscription Services that:
5.11.1. Is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
5.11.2. Facilitates illegal activity;
5.11.3. Depicts sexually explicit images;
5.11.4. Promotes unlawful violence; or
5.11.5. Is discriminatory based on race, gender, color, religious belief, sexual orientation, or disability.
6. Customer Data and Intellectual Property. Customer must provide all data for use in the Subscription Services, and Company is not obligated to modify or add to the Customer Data in any way. Customer is solely responsible for the content and accuracy of the Customer Data.
6.1. Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data other than any modifications or changes made by Company. This Agreement does not grant Company any rights to, or in, Customer’s patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), trade secrets, Confidential Information and/or any other rights or licenses with respect to the Customer Data or any Customer intellectual property rights.
6.2. Company agrees to use the Customer Data only as necessary in order to carry out its obligations under this Agreement, and for no other purpose, with the exception that Company may make use of the Customer Data as follows:
6.2.1. To observe and report back to Customer on Customer’s usage of the Subscription Services, and make recommendations for improved usage of the Subscription Services;
6.2.2. To improve the quality, design and functionality of the Subscription Services and Software for Customer; or
6.2.3. To improve Company’s internal processes.
6.3. Company agrees to keep Customer Data confidential in accordance with Section 13 of this Agreement. Company will safeguard Customer Data with the technical, physical, and organizational measures described at www.troyrx.com/policies/data-security, as may be periodically updated by the Company from time to time (the “Data Security Policy”). By providing the Subscription Services to Customer, Company may be acting as a Business Associate as defined in the Health Insurance Portability and Accountability Act of 1996. In furtherance thereof, the parties agree to adhere to the terms and conditions of the Business Associate Agreement at www.troyrx.com/ba-agreement, as may be periodically updated by the Company from time to time (the “Business Associate Agreement”).
7. Implementation Services Warranties.
7.1. Company warrants that (i) the Implementation Services will conform to the applicable Project Plan; (ii) the Implementation Services will comply with all laws, rules, and regulations; (iii) the Implementation Services will be provided in accordance with industry practices; and (iv) the Implementation Services will be performed with reasonable skill, care and diligence.
7.2. If the Implementation Services breach any warranty in this Section 7 (Implementation Services Warranties), Company’s sole obligation, and Customer’s sole remedy, is to have Company, at Company’s election, re-perform the Implementation Services to the extent necessary to correct the defective performance or refund the portion of fees associated with such Implementation Services.
7.3. Customer must provide Company with reasonable information, access, and good faith cooperation reasonably necessary to enable Company to deliver the Implementation Services and must perform its duties identified in the Project Plan as Customer’s responsibility. If Customer fails to do this and such failure is the sole reason for Company not meeting its obligations, Company will be relieved of its obligations to the extent that the obligations are dependent upon Customer’s performance.
8. Subscription Services Warranties.
8.1. Company warrants that: (i) the Subscription Services will conform to and operate in accordance with the Documentation, in all material respects; (ii) Company shall take commercially reasonable efforts to avoid the introduction of any malicious software (e.g., back door, time bomb, Trojan horse, worm, drop dead device, virus) into the Subscription Services; and (ii) that Company will furnish customer support services in accordance with the applicable Support Service Policy.
8.2. Company has no warranty obligations the event and to the extent that the Software has been modified by Customer.
8.3. If the Subscription Services do not conform with the foregoing warranties, Company will, at its expense, use reasonable commercial efforts to correct any such non-conformance immediately, or provide the Customer with an alternative means of accomplishing the desired performance. Notwithstanding the foregoing:
8.3.1. Company does not warrant that the Subscription Services, Software, Documentation and/or the information obtained by the Customer through the Subscription Services will meet the Customer’s requirements; and
8.3.2. Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities (other than Company communication facilities or networks), including the internet, and Customer acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities (other than Company communication facilities or networks).
8.4. Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBSCRIPTION SERVICES, IMPLEMENTATION SERVICES, SOFTWARE, DOCUMENTATION OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES, IMPLEMENTATION SERVICES, SOFTWARE, DOCUMENTATION PROVIDED OR THE OPERATION THEREOF ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. COMPANY MAKES NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, ANY OR OTHER WARRANTY IMPLIED BY LAW, OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.5. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, DELAY, ECONOMIC, PUNITIVE OR PROPERTY DAMAGES WHATSOEVER (INCLUDING ANY DAMAGES FOR LOSS OF USE OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY, WHETHER WARRANTY, TORT, CONTRACT OR OTHERWISE. IN ANY EVENT, COMPANY'S MAXIMUM LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM THE AGREEMENT SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY PURSUANT TO THE AGREEMENT DURING THE TWELVE MONTHS PRECEDING ANY SUCH CAUSE OF ACTION; PROVIDED, COMPANY’S MAXIMUM LIABILITY FOR BREACHES OF SECTION 13 (CONFIDENTIALITY) OR BREACHES OF THE BUSINESS ASSOCIATE AGREEMENT SHALL BE LIMITED TO THREE (3) TIMES THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY HEREUNDER DURING THE TWELVE MONTHS PRECEDING ANY SUCH CAUSE OF ACTION. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY TO COMPANY’S INDEMNIFICATION OBLIGATIONS IN SECTION 13 OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14.
9. Parties’ Obligations. Customer shall pay: (i) all agreed-upon (in writing) charges applicable to the Subscription Services or Implementation Services that are actually delivered by Company; (ii) additional fees or charges arising from supplemental services requested by Customer and that Customer agrees to in writing and/or Customer’s usage of facilities, bandwidth and network capacity above and beyond Customer’s entitlement as set forth in the Agreement; and (iii) other written, mutually agreed charges as may be required for provision of the Subscription Services.
9.1. Customer shall provide Company with all reasonable cooperation in relation to this Agreement and all reasonable access to such information as may be required by Company to perform the Subscription Services, including but not limited to the following:
9.1.1. Customer will: (i) be solely responsible for all Customer Data and any party’s reliance thereunder unless modified by Company and (ii) allow Company, for the sole purpose of its performance under the terms of this Agreement, to copy, display, distribute, download, and otherwise use Customer Data to transmit it over the internet.
9.2. Customer agrees to:
9.2.1. Comply with all applicable laws and regulations with respect to its activities under this Agreement;
9.2.2. Carry out all other material Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Company may adjust any agreed timetable or delivery schedule to the extent reasonably necessary.
9.2.3. Be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Company’s Data Centers (other than any connections or telecommunications in Company’s control), and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
10.1. The “Initial Term” means the initial period of time during which the parties agree that Company will provide Customer with the Subscription Services as set out in the Agreement. Unless modified in the Agreement, the Agreement will renew automatically at the end of the Initial Term for additional one (1) year periods (each a “Renewal Term” and, collectively with the Initial Term, the “Term”); provided, however, either party may elect not to renew the Agreement at the end of the Initial Term or applicable Renewal Term by providing a minimum of sixty (60) days’ prior written notice to the other party prior to the end of the Term.
10.2. Prior to the expiration of the Term, either party may terminate this Agreement if the other party commits a material breach of this Agreement and the breach is not cured within thirty (30) days of receipt of written notice from the non-breaching party. In the event that Customer terminates the Agreement in accordance with this section 10.2, Company shall refund a pro-rate portion of Subscription Fees paid for the remainder of the Term and shall refund all Fees for Implementation Services not yet started.
10.3. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination including, but not limited to, those in Sections 6 (Customer Data and Intellectual Property), 10 (Term; Termination), 11 (Proprietary Rights), 12 (Confidentiality), 13 (Indemnification and Insurance), and 15 (Miscellaneous).
11. Proprietary Rights.
11.1. Customer acknowledges and agrees that Company owns all intellectual property rights in the Subscription Services, Software and the Documentation. This Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the Subscription Services, Software, or the Documentation.
11.2. Company confirms that it has all the rights in relation to the Subscription Services, Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
12.1. Each party shall hold the other party's Confidential Information in confidence and, unless required by law, not make the other party's Confidential Information available to any third party, or use the other party's Confidential Information for any purpose other than to fulfill their obligations under this Agreement. All Confidential Information will be received and held in confidence by the receiving party, subject to the provisions of this Agreement. Each party acknowledges that it will not obtain any rights of any sort in or to the other party’s Confidential Information. Although either party may disclose the general nature of this Agreement, neither party may disclose the specific financial and business terms of this Agreement without the prior written consent of the other party, other than to financial or legal advisors under a duty of confidentiality.
12.2. Each party will restrict disclosure of the other party’s Confidential Information to those of its employees to whom it is necessary to disclose such Confidential Information in connection with the purposes expressly permitted in this Agreement. Each party agrees to use the same discretion and care to protect the other party’s Confidential Information that the party uses to protect its own Confidential Information but will in all cases use at least reasonable degree of care to ensure that the other party's Confidential Information to which it has access is not used, disclosed or distributed in violation of the terms of this Agreement. Each party is responsible for any breach of this Section 12 (Confidential Information) by any party to whom it discloses the other party’s Confidential Information.
12.3.Nothing herein will prevent a receiving party from disclosing all or part of the disclosing party’s Confidential Information as necessary pursuant to the operation of law, a court order, or a governmental order; provided that prior to any such disclosure, the receiving party will: (i) promptly notify, if legally permissible, the disclosing party in writing of such requirement to disclose and (ii) cooperate with the disclosing party in obtaining a protective order or otherwise protecting the information from disclosure at the disclosing party’s sole cost and expense.
12.4. Either disclosing party may at any time notify the receiving party that the receiving party must return to the disclosing party the disclosing party’s Confidential Information. Each party hereby agrees to, within ten (10) days of the notification: (i) return all documents and tangible items it or its employees or agents have received pursuant to this Agreement pertaining, referring, or relating to the other party’s Confidential Information and (ii) return or certify in a writing attested to by a duly authorized officer of such party that it has destroyed all copies, summaries, modifications, or adaptations that such party or its employees or agents have made from the materials listed in Section 12.4(i) provided by the disclosing party.
12.5. Customer acknowledges that details of the Subscription Services, and the results of any performance tests of the Subscription Services, constitute Company’s Confidential Information. Although copyrighted, the Software, Documentation and other Confidential and Proprietary Information of Company may be unpublished and contain confidential and proprietary information of Company. Customer agrees to treat as confidential and keep secret the Software and Documentation (but may disclose it to its Authorized Users) and to use a reasonable degree of care to protect the confidentiality of the Software and Documentation.
12.6. Company acknowledges that the Customer Data is the Confidential Information of the Customer.
12.7. This Section 12 (Confidential Information) shall survive termination of this agreement.
13. Indemnification by Company. Company (as the “Indemnifying Party” in this Section) agrees to indemnify, defend and hold Customer and its affiliates, officers, agents and employees (as the “Indemnified Party” in this Section) harmless from and against any and all losses, costs, damages, injuries, awards, judgments or liabilities, including but not limited to legal fees, costs and expenses (“Losses”), incurred by the Indemnified Party as a result of any third party claim, suit, proceeding or cause of action asserted against the Indemnified Party (“Claim”) to the extent arising out of any copyright, patent and/or trademark infringement, unlawful disclosure or use or misappropriation of a trade secret or other intellectual property right by virtue of the Indemnified Party’s use of the Subscription Services. This Section shall not apply to the extent the Claim arises, from (x) the combination, operation or use of the Platform with other software, hardware or platforms not provided or authorized by the Indemnifying Party, or (y) any Customer Data.
If the operation, possession or use of the Subscription Services by Customer is found to infringe any third party intellectual property right, is subject to a lawsuit that claims the Subscription Services infringe any third party intellectual property right, or Company believes that this is likely, Company may at its option, either (i) obtain a license from such third party for the benefit of Customer; or (ii) modify the Subscription Services so that they no longer infringe. If neither of the foregoing options is commercially feasible, Company may terminate the Agreement, in which case Company shall refund to Customer all fees pre-paid to Company for unused Subscription Services.
14. Indemnification by Customer. Partner (as the “Indemnifying Party” in this Section) agrees to indemnify, defend and hold Company and its affiliates, officers, agents and employees (as the “Indemnified Party” in this Section) harmless from and against any and all Losses, incurred by the Indemnified Party as a result of any Claim to the extent arising out of any copyright, patent and/or trademark infringement, unlawful disclosure or use or misappropriation of a trade secret or other intellectual property right by virtue of the Indemnified Party's use of the Customer Data.
15.1. Force Majeure. Each party is excused from performance of this Agreement and is not liable for any delay in whole or in part caused by the occurrence of any contingency beyond the reasonable control of the party. These contingencies include, without limitation, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of government or any agency or subdivision thereof affecting the terms of this Agreement or otherwise, labor dispute (other than of its own labor force), accident, fire, explosion, flood, severe weather or other act of God.
15.2. Export and Import Regulations. The Subscription Services, Software and Documentation may be subject to export, re-export, or import laws, restrictions, and regulations. Each party agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain any licenses to export, re-export, or import the Subscription Services, Software and Documentation.
15.3. Exclusion from Government Programs. Company represents, warrants and covenants that during the term of the Agreement, neither Company, nor any of its employees, contractors and/or agents providing services hereunder has been: (i) convicted of a criminal offense that falls within the ambit of 42 USC § 1320a-7(a) (i.e., any conviction relating to the Medicare or Medicaid program, patient abuse, felony conviction relating to health care fraud or felony conviction relating to controlled substances), or (ii) excluded, debarred, suspended or otherwise ineligible to participate in the federal or state health care programs or in federal procurement or non-procurement programs.
15.4. Availability of Records. Until the expiration of four (4) years after the furnishing of Subscription Services under this Agreement, Company agrees that the Secretary of the Department of Health and Human Services (the “Secretary”) and the Comptroller General of the United States (“Comptroller General”), or the designee or duly authorized representative of either of them, will have access to all books and records of Company directly pertaining to the subject matter of this Agreement and the provision of Services under it, in accordance with the criteria presently or hereafter developed by the Department of Health and Human Services as provided in Section 952 of the Omnibus Reconciliation Act of 1980, 42 U.S.C. Section 1395x(v)(1)(A), et seq. (“ORB”). Upon request of the Secretary, the Comptroller General, or the designee or authorized representative of either of them, Company shall make available (at reasonable times and places during normal business hours) this Agreement and all books, documents and records of Company that are necessary to verify the nature and extent of the costs of the Software and Services provided by Company and furnished in connection with this Agreement. Company further agrees that if Company carries out any of the duties of this Agreement through a subcontract with a related organization, with a value or cost of ten thousand dollars ($10,000) or more over a twelve (12) month period, such subcontract shall contain a clause to the effect that until the expiration of four (4) years after the furnishing of such services pursuant to such subcontract, the related organization shall make available, upon request to the Secretary or to the Comptroller General, or any of their duly authorized representatives, the subcontract, and all books, documents and records of such organization that are necessary to verify the nature and extent of such costs. Notwithstanding the foregoing provisions, access to the books, records, and documents of Company and any related organization provided for herein will be discontinued and become null and void upon a finding by a court or quasi-judicial body of competent jurisdiction that this Agreement is outside the scope of the regulatory or statutory definition of those contracts and agreements included within the purview of Section 952 of ORB or the rules and regulations promulgated thereunder.
15.5. Equitable Relief. Each of the parties hereto acknowledges and agrees that irreparable loss and damage may be suffered by the other party if a party beaches or violates any of the covenants and agreements contained in Sections 5 (Conditions of Use), 6 (Customer Data and Intellectual Property), 11 (Proprietary Rights), or 12 (Confidentiality) hereof, and the parties agree and consent that, in addition to any other remedies available to them, each party hereto is entitled to seek an injunction and other equitable relief to prevent a breach or contemplated breach by the other party hereto of any of the covenants or agreements contained in Sections 5 (Conditions of Use), 6 (Customer Data and Intellectual Property), 11 (Proprietary Rights), or 12 (Confidentiality).
15.6. Entire Agreement. This Agreement (including these Terms of Service, Support Service Policy, Data Security Policy and Business Associate Agreement) constitutes the entire agreement between the parties hereto with respect to the subject matter of this Agreement, and it supersedes all prior or contemporaneous oral or written agreements, commitments or understandings with respect to the matters that are the subject of this Agreement.
15.7. Amendment. No amendment, modification or discharge of this Agreement, or waiver of rights conferred by this Agreement, is valid or binding unless set forth in a writing signed by both parties.
15.8. Assignment. This Agreement cannot be assigned by Customer without the prior written consent of Company.
15.9. Governing Law; Forum Selection. This Agreement and any claims arising out of or relating to this Agreement will be governed by, interpreted, and construed in accordance with the laws (without regard to the conflict of laws rules) of the State of California, U.S.A. The parties agree that this Agreement does not involve the sale of goods and that the Uniform Commercial Code as enacted in any jurisdiction, or any similar statutes concerning the sale of goods applies to this Agreement. The parties further agree that any legal action or proceeding relating to this Agreement will be instituted solely and exclusively in the state courts located in Orange County, California or the federal courts located in Orange County, California, and both parties agree to submit to the sole and exclusive jurisdiction and venue of such courts for any matters related to this Agreement, including, but not limited to, any matters related to the Subscription Services, Professional Services, Documentation, and/or the Software.
15.10. Notices. All notices, demands, requests, or other communications that may be or are required to be given, served, or sent by any party to any other party pursuant to this Agreement will be in writing and will be (i) mailed by first-class certified mail, postage pre-paid, return receipt requested, (ii) transmitted by hand delivery (including hand delivery through an internationally-recognized overnight delivery service), or (iii) transmitted by telegram or facsimile if simultaneously sent by the method specified in (i), in each case to the address set forth below the signature of the respective party on the signature page to this Agreement.
15.11. Severability. If any part of any provision of this Agreement, a Work Order, a Statement of Work, or any other document that makes up part of this Agreement is invalid or unenforceable under applicable law, the invalid provision will be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of the provision or the remaining provisions of this Agreement.
15.12. Waiver. Failure by either party to enforce at any time or for any period of time any provisions of this Agreement will not be construed as a waiver of those provisions and shall in no way affect a party’s right to later enforce those provisions or to enforce any other provision of this Agreement or to exercise any right or privilege under this Agreement.
15.13. Independent Contractors. The relationship between Company and Customer under this Agreement is that of non-exclusive independent contractors only. Nothing in this Agreement will be construed to establish a partnership, joint venture, employer-employee, or agency relationship between Company and Customer. Neither party has any power or authority to bind the other party in any transaction.