HOME CARE PULSE TERMS OF SERVICE
Last Updated June 2, 2023
These are the Home Care Pulse Terms of Service, including any exhibits attached hereto, (“Terms”) under which Home Care Pulse, LLC and/or its affiliates (collectively “HCP”) provides its products and services to you (“Company”). These Terms, together with a Subscription Order Form signed by HCP and Company specifically referencing these Terms, are a binding agreement governing Company’s access to and use of HCP’s products and services. Each of HCP and Company are a “Party” and collectively the “Parties.” “Subscription Order Form” means one or more subscription order forms entered into by HCP and Company for the provision by HCP of its products or services to Company. “Agreement” means these Terms, together with the applicable Subscription Order Form into which these Terms are incorporated.
2. LICENSE; SERVICES
Subject to the terms and conditions of the Agreement, including payment of all Fees, (i) HCP hereby grants Company a personal, limited, non-exclusive, non-transferable, non sub-licensable, revocable right to access and use the Services during the Term solely for Company’s own internal business purposes, and (ii) HCP will perform the Services. “Services” means the functionality of the Software HCP will make available to Company as a SaaS service and the other services that HCP will perform for Company, in each case as described in the applicable Subscription Order Form. “Software” means any software owned or licensed by HCP and used by HCP to provide the Services, together with any updates, bug fixes, help content, and other related materials that HCP provides to Company. “Term” means the term of the Agreement as set out in the applicable Subscription Order Form, unless earlier terminated in accordance with these Terms. Company shall not use the Services for any purposes beyond the scope of the access granted in the Agreement. Company shall not at any time, directly or indirectly, and shall not permit any party to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Company has no right to access, reproduce or use the Software.
3. FEES AND PAYMENT
a) Fees. In consideration for HCP making available and performing the Services, Company will pay to HCP the Fees in the amounts and in accordance with the terms set forth in the Subscription Order Form. “Fees” means the fees to be paid by Company to HCP as set forth in the applicable Subscription Order Form. Additionally, the subscription fee may be subject to automatic price increases ranging from 3% to 10%. After the Initial Service Term, Fees shall be subject to adjustment by HCP on sixty (60) day written notice to the Customer effective any time one (1) year after the commencement of the service period, provided that any increase in third party charges, such as tariffs or government fees, shall be immediately passed through to Customer. Any usage exceeding the allocated limits will be subject to additional charges for overages. Customer shall pay directly or reimburse HCP for all sales, use or related taxes, exclusive of income taxes.
4. OWNERSHIP AND USE OF DATA
If Company or any of its employees or contractors sends or transmits any communications or materials to HCP by mail, email, telephone, or otherwise, suggesting or recommending changes to Services or any other technology, goods, services, data or software of HCP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), HCP is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Company hereby assigns to HCP on Company’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and HCP is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although HCP is not required to use any Feedback. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Company or any third party any right or license to, under or covering any HCP Intellectual Property. “HCP Intellectual Property” means (a) all copyrightable works owned or licensed by HCP (including without limitation books, articles, brochures, surveys, culture tools, software, the form and structure of reports, and other materials, tools and methodologies), whether or not the copyrights in such works have been registered in the U.S. or any other jurisdiction; (b) all confidential information and material belonging to HCP; (c) all trademarks, names, names, service marks, icons, and logos of HCP; (d) all HCP Materials; (e) any and all data developed or derived by HCP in connection with the Services; (f) the Services; and (g) the Software. HCP reserves all rights not expressly granted to Company in the Agreement. “HCP Materials” means all techniques, algorithms and methods or rights thereto owned by, or licensed to, HCP during the term of the Agreement and employed by HCP in connection with the Services provided to Company.
6. TERM & TERMINATION
(a) Term. Each Service shall have an initial one (1) year term (the “Initial Service Term”) from the commencement of the service period and shall thereafter renew automatically for successive one (1) year terms, unless a different term is specified in the Order Form. Any unused base transactions expire as of any renewal or termination date. HCP may terminate this Agreement with written notice of no less than sixty (60) days and Customer may terminate this Agreement as of any renewal date upon no less than sixty (60) days prior written notice.
(b) Termination. If either Party breaches a material term or condition of the Agreement, the other Party may terminate (at its discretion) the Agreement, upon thirty (30) days’ prior written notice to the breaching Party if such breach is not cured within such period. The Agreement may be terminated by a Party for cause immediately (i) if the other Party ceases to do business without a successor, or otherwise terminates its business operations, or (ii) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such Party. If HCP breaches the Agreement, termination shall be Company’s sole and exclusive remedy for such breach. All provisions of the Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers, indemnity, confidential information, and limitations of liability. Upon expiration or termination of the Agreement, Company’s and Company’s users’ right to access and use the Services (and any HCP Intellectual Property) will immediately terminate, Company and its users will immediately cease all use of the Services (and any HCP Intellectual Property), and Company will return and make no further use of any confidential information, materials, or other items (and all copies thereof) belonging to HCP no later than ten (10) days after the effective date of the expiration or termination of the Agreement. Notwithstanding the foregoing, after the expiration or termination of the Agreement, Company may continue to use any reports or other documentation provided pursuant to the Services for its own internal business purposes.
COMPANY HEREBY RELEASES AND SHALL DEFEND, HOLD HARMLESS AND INDEMNIFY HCP AND ITS EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, SUITS, PROCEEDINGS, LOSSES, LIABILITIES, DAMAGES, JUDGMENTS, FINES, FEES, PENALTIES, COSTS AND EXPENSES OF ANY NATURE WHATSOEVER (INCLUDING REASONABLE ATTORNEY FEES AND COSTS), IN EACH CASE WHETHER FIRST-PARTY OR THIRD-PARTY OR DIRECT OR THIRD-PARTY, THAT ARISE OUT OF, RELATE TO, ALLEGE OR ARE BASED UPON: (A) ANY NEGLIGENT OR WRONGFUL ACT OR OMISSION OF, OR VIOLATION OF LAW BY, COMPANY OR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OR REPRESENTATIVES; (B) COMPANY’S ACTUAL OR ALLEGED BREACH OF ANY OBLIGATION, REPRESENTATION OR WARRANTY IN THE AGREEMENT; OR (C) THE USE OR DISCLOSURE OF ANY COMPANY DATA, RAW DATA OR AGGREGATE DATA BY OR ON BEHALF OF HCP. Company will promptly notify HCP of any claim subject to indemnification, tender to the HCP control over the defense and settlement of the claim, and render reasonable assistance to the HCP, at Company’s sole cost and expense, with respect to such defense and settlement. Company shall not enter into any agreement with respect to an indemnified claim that requires any indemnified party to admit wrongdoing or comply with any obligation.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, IN NO EVENT WILL HCP BE LIABLE FOR: (A) ANY DAMAGES ARISING OUT OF OR RELATED TO THE FAILURE OF COMPANY OR ITS AFFILIATES OR PERSONNEL TO PERFORM THEIR RESPONSIBILITIES; AND/OR (B) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HCP WILL NOT BE HELD RESPONSIBLE IF IT EITHER DELAYS PERFORMANCE OR FAILS TO PERFORM UNDER THE AGREEMENT AS A RESULT OF ANY CAUSE BEYOND ITS REASONABLE CONTROL. IF COMPANY SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM HCP FOR ANY REASON IN CONNECTION WITH THE AGREEMENT (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT CLAIM), HCP WILL BE LIABLE ONLY FOR THE AMOUNT OF COMPANY’S ACTUAL DIRECT DAMAGES UP TO THE AMOUNT THAT COMPANY PAID HCP FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE RELATING TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, IN NO EVENT WILL THE CUMULATIVE LIABILITY OF HCP (INCLUDING ALL OF ITS AFFILIATES) FOR ALL CLAIMS ARISING UNDER OR RELATING TO SERVICES, THE AGREEMENT, THE BAA OR THE TRANSACTIONS CONTEMPLATED UNDER THE AGREEMENT OR THE BAA EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID BY COMPANY TO HCP UNDER THE AGREEMENT DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE RELATING TO THE FIRST CLAIM MADE BY COMPANY UNDER THE AGREEMENT. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF COMPANY’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. TO THE FULL EXTENT PERMISSIBLE BY LAW, HCP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
The failure of either Party to enforce any rights under the Agreement will not be deemed a waiver of any rights. The Agreement may not be assigned by Company, whether voluntarily or by operation of law, in whole or part, without the prior written consent of HCP. Any assignment without such consent is void and of no effect. The Agreement may be assigned by HCP in connection with a change of control of HCP or the sale of all or substantially all its assets. In the event of a permitted assignment, the Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. The Agreement does not create any agency, partnership, or joint venture relationship between the Parties. Neither Party, by virtue of the Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. The Agreement will be exclusively governed by and construed under the laws of the State of Delaware, without reference to or application of rules governing choice of laws. All disputes arising out of or related to the Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Wilmington, Delaware and each Party hereby consents to such jurisdiction. However, HCP may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over Company to seek injunctive relief. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THE AGREEMENT. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, the remaining provisions of the Agreement will remain in full force and effect. Once executed, the Agreement, and any individual Subscription Order Form may be modified only through the execution of a written instrument signed by the Parties specifically referencing the Agreement. HCP may include Company’s name and logo on a client list, unless Company notifies HCP otherwise. If any action at law or in equity is necessary to enforce or interpret the Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled. Only the Parties to the Agreement may enforce it. Except as expressly set forth herein, all rights and remedies provided in these Terms are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.