This Agreement is intended to be executed by a Primary User. A Primary User is any entity which contracts with Therap Global Asia, LLC so that information about individuals that it provides services to and/or supports can be entered and accessed on Therap Global Asia, LLC’s application, as more specifically described below.
Carefully read the following agreement before accessing or entering any information on the Therap Global Asia, LLC’s application.
AGREEMENT FOR PRIMARY USER
THE INDIVIDUAL EXECUTING THIS AGREEMENT ON BEHALF OF THE PRIMARY USER ACKNOWLEDGES THAT HE OR SHE HAS READ THIS AGREEMENT, THAT HE OR SHE IS AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE PRIMARY USER, THAT HE OR SHE UNDERSTANDS THE TERMS OF THIS AGREEMENT AND THAT, IF HE OR SHE EXECUTES THIS AGREEMENT, THE PRIMARY USER WILL BE BOUND BY THIS AGREEMENT.
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THIS AGREEMENT is between THERAP GLOBAL ASIA, LLC, a limited liability company organized under the laws of the State of Delaware and having its principal office located at 562 Watertown Avenue, Suite 3, Waterbury, Connecticut 06708-2240 (“Therap Global”), and the Primary User identified above. The date on which the second party hereto executes this Agreement, as between Therap Global and the Primary User, will be the “Effective Date” of the Agreement.
WHEREAS, the Primary User currently provides services or support to certain individuals (“Care Recipients”);
WHEREAS, Therap Global maintains, manages and operates a software as a service suite of applications under the domain name therapglobal.net (the “Service”), and the Primary User desires, along with the other entities and/or individuals authorized by the Primary User (as set forth below), to access the Service and/or to post thereon confidential information (“CI”) of Care Recipients; and
WHEREAS, Therap Global is part of a family of companies that operate within the United States and are generally subject to the requirements of the Health Insurance Portability and Accountability Act of 1996, and the rules and regulations promulgated thereunder, as the same have been, and from time to time hereafter may be, amended (“HIPAA”); and
WHEREAS, Therap Global operates a website at www.therapglobal.net (the “Website”); and
WHEREAS, in addition to the Service, Therap Global and/or its affiliates (for purposes of this Agreement, the term “affiliate,” with a lower case “a,” means a business organization which, directly or indirectly, controls, is controlled by or is under common control with Therap Global) provides certain libraries, bulletin boards, webcasts, training and support services (whether in person, on the phone, through the internet or otherwise), conferences, seminars and other aids designed for the common benefit of its customers (any application, library, bulletin board, support service, webcast, training or other aid which is only accessible to “Authorized Users” (as hereinafter defined) of the Service, will be considered, for purposes of this Agreement, to be part of the Service, and any such items which are accessible by the public will be considered “Ancillary Services”);
NOW, THEREFORE, in consideration of the premises and of the covenants contained herein, the parties hereto agree as follows:
- 2. Representations, Warranties and Covenants by Primary User.
(a) The Primary User hereby represents, warrants and covenants to Therap Global, knowing that Therap Global is relying thereon, that each of the following is true, correct and complete (except as otherwise set forth on Exhibit A attached hereto and made a part hereof) on the Effective Date of this Agreement.
(i) The Primary User does not conduct operations within the United States.
(ii) The Primary User is not a “Covered Entity,” as defined by HIPAA, or otherwise subject to the terms of HIPAA.
(iii) The Primary User has obtained any and all consents necessary or appropriate to allow it to enter into this Agreement with Therap Global, and will, in the future, obtain any additional consents, as and when needed, to maintain its and Therap Global’s compliance will all Applicable Laws.
(iv) There are no privacy, confidentiality or similar laws applicable to the Primary User (or other laws applicable in any jurisdiction which exercises authority over the activities of the Primary User) which will apply to Therap Global as a result of the execution of this Agreement or the Service which Therap Global will provide to the Primary User hereunder.
(v) The Primary User is lawfully in possession of all of the CI which it will place or store on the Service and/or which it will cause to be placed or stored on the Service.
(vi) The Primary User is in compliance with all Applicable Laws.
(vii) The Primary User is aware that Therap Global will store and/or process CI on behalf of the Primary User in the United States and/or in one or more other countries and any such storage or processing of CI in such locations will not violate any Applicable Laws.
(viii) The Primary User will not ask or cause Therap Global to do anything which it cannot lawfully do itself.
(ix) There are no tax or similar laws which will impose a payment obligation on Therap Global under the laws of any jurisdiction outside of the United States as a result of Therap Global entering into this Agreement with the Primary User or as a result of Therap Global receiving any payments from the Primary User hereunder.
(x) There are no tax or similar laws which will impose an obligation on Therap Global to collect any tax or other amounts from the Primary User with respect to any sums paid to Therap Global by the Primary User.
(xi) This Agreement is completely enforceable against the Primary User in accordance with its terms under all Applicable Laws.
(xii) There are no registration, notification, licensing or similar requirements applicable to Therap Global as a result of the execution or performance of this Agreement.
(b) The Primary User hereby covenants, warrants and agrees to promptly notify Therap Global, in writing, if any one or more of the foregoing representations, warranties and/or covenants ceases to be true or if and when it becomes aware that, with the passage of time, any one or more of the foregoing representations, warranties and/or covenants will cease to be true.
(c) The Primary User agrees to indemnify and hold Therap Global and its Affiliates harmless from and against any and all claims, suits, demands, judgments, liability, damage, loss, cost and expense (including, without limitation, attorneys’ fees and costs of suit) in the event that any one or more of the foregoing representations, warranties and/or covenants set forth in this Section 2 is false or if Primary User breaches any of its obligations set forth in this Section 2.
- Limitations on Access to Service.
(a) Only the following may access the Service and enter CI or review CI of any Designated Care Recipient: Primary User’s Authorized Users; and government employees and agents who are authorized by law or by the Primary User.
(b) The Primary User has sole and complete control over who it authorizes to access, enter and/or retrieve information that it or any of its Authorized Users enters or inputs on the Service (and the extent of the access of each Authorized User). The Primary User shall: provide the information necessary to access the Service to each Authorized User; identify the Primary User’s Designated Care Recipients on the Service; determine the level of access for each Authorized User with respect to each Designated Care Recipient; and modify or terminate, as appropriate, the access to the Service of any Authorized User in the event of a change in the employment or other status of an Authorized User. It will be the Primary User’s responsibility to safeguard the information necessary to access the Service and to see to it that each Authorized User receives only the access information intended for him or her.
(c) Each use of the Service constitutes a representation and warranty by the Primary User that each Authorized User (whether or not he or she is an employee or agent of the Primary User) is entitled, under the provisions of this Agreement and the requirements of Applicable Laws, to have the respective levels of access to such information of each Designated Care Recipient that such Authorized User has been granted by the Primary User. In the event, for any reason, an Authorized User inadvertently obtains access to CI or other information of an individual which he or she should not have been able to access, the Authorized User shall immediately terminate such access and shall immediately notify Therap Global of such access.
- Medical and Care Information Not Provided by Therap Global; Primary User’s Responsibility for Accuracy of Information Placed on the Service.
(a) The Primary User hereby acknowledges and agrees that all data entered on the Service is the responsibility of the Primary User and its Authorized Users. The Primary User hereby further acknowledges and agrees that:
(i) The Service does not make healthcare or other decisions and is not a substitute for competent, properly trained and knowledgeable staff who bring professional judgment and analysis to the information presented by the Service and/or by the Ancillary Services.
(ii) The Primary User is responsible for verifying the accuracy of any information on the Service and/or on the Ancillary Services and determining the data necessary for the Primary User and its Authorized Users to make proper care decisions, as well as for complying with all laws, regulations and licensing requirements, relating to its Designated Care Recipients.
(iii) The Primary User is responsible for establishing and maintaining reasonable quality control procedures to ensure the accuracy of data input on the Service.
(iv) The Primary User and the Primary User’s staff will consider all relevant information, including information presented to the Primary User and its Authorized Users by the Service and/or the Ancillary Services, and may give whatever weight the Primary User and its Authorized Users deem appropriate to the information produced by the Service and/or available from the Ancillary Services in the performance of the Primary User’s and its Authorized Users’ functions.
(v) Any and all financial and management information produced by the Service and/or the Ancillary Services must be tested for reasonableness and accuracy before any actions are taken or reliance placed on it.
(vi) The Primary User has reviewed and will communicate to its Authorized Users who use and access the Service and/or the Ancillary Services any information relating to the Service and/or the Ancillary Services which may be provided to the Primary User by Therap Global (or any of its Affiliates) from time to time.
(vii) The Primary User is solely responsible for the proper, complete and accurate submission of claims, including, without limitation, the determination of proper billing, diagnosis and procedure codes, if any, and the maintenance of each Designated Care Recipient’s medical records containing appropriate documentation of the services billed.
(viii) When selecting a narrative condition or coded diagnosis or procedure, the Primary User must make an independent and informed judgment based upon the Designated Care Recipient’s condition and symptoms and/or a professional’s submitted diagnosis, to select a code or description appropriate for that Designated Care Recipient. Therap Global does not make any representation or warranty regarding the appropriateness of any of the narrative or codes, if any, displayed for any or all Designated Care Recipients.
(b) The Service is a recipient and a compilation of information provided by various sources, and the information has not been developed, supplied, reviewed, authenticated, analyzed or evaluated by Therap Global. All questions about any information obtained from the Service should be directed to the individual or entity that has posted the information. Nothing contained on the Service is intended to constitute a medical diagnosis or treatment. Nothing on the Service is intended as a validation of the accuracy or completeness of the information posted, entered or stored therein.
- No Remedy Except Termination. All information is transmitted over electronic media including, but not limited to, the internet and various types of voice and other telecommunications facilities. Such media are beyond the control and jurisdiction of the Service. Accordingly, Therap Global has no responsibility for, or arising out of, delay, failure, interruption, loss or corruption of any data or other information transmitted in connection with use of the Service or other sites accessed through the Service. The Primary User’s sole and exclusive remedy for dissatisfaction with the Service is to stop using the Service.
Therap Global intends to abide by all Applicable Laws. Notwithstanding anything to the contrary contained herein, in the event of a change in any Applicable Laws (and, for the avoidance of doubt, any Applicable Law which Therap Global was not aware of will be deemed a “change” in Applicable Laws when Therap Global becomes aware of it), Therap Global will be given sixty (60) days following discovery thereof to exercise one of the following three options: (i) decide to comply therewith without seeking any increase in the fees due hereunder; (ii) increase the fees payable hereunder in consideration of its increased costs of compliance; or (iii) decide not to comply therewith if it determines that compliance would be unduly burdensome. If Therap Global exercises option (ii) or option (iii), the Primary User may, within thirty (30) days’ of receiving notice thereof, terminate this Agreement by notice to Therap Global (and receive a refund of any unearned fees paid allocable to the number of full calendar months for which fees have been paid remaining after the effective date of termination; such termination will be effective on the date specified by the Primary User, in its notice of termination, which date shall be on or after the date such notice is given). Any notice required under this Section will be deemed given on the date notice is sent in accordance with the provisions of Section 22 hereof. Any termination by the Primary User in accordance with this Section 6 will be without liability on the part of Therap Global for breach, as a result of such non-compliance with any Applicable Laws. If the Primary User decides not to terminate this Agreement, notwithstanding Therap Global’s exercise of option (ii), the Agreement will continue in effect in accordance with all of the provisions hereof, except that the fees due hereunder from the Primary User will increase in the amount and at the time specified in the notice given by Therap Global exercising option (ii). If the Primary User decides not to terminate this Agreement, notwithstanding Therap Global’s exercise of option (iii), the Agreement will continue in effect in accordance with all of the provisions hereof, except that Therap Global will not be considered in breach hereof for non-compliance with such change in the Applicable Laws.
- Reservation of Rights. Therap Global reserves the right, but is not obligated under any circumstances, to do any or all of the following:
(a) Data Rights. To the extent permitted by Applicable Laws;
- Make a record of information posted on the Service and organize and publish CI and other information provided by users for statistical and other lawful purposes; provided, however, all such information shall be de-identified and no such information will disclose the names of Designated Care Recipients or the facilities where they reside or which otherwise provide services to the Designated Care Recipients.
- Access, collect, maintain, analyze, prepare derivatives from and otherwise use information on the Service and/or the Website that is not CI, including, but not limited to, machine, technical, systems, usage and related information (“Source Data”) to facilitate the provision of products and/or services to Primary User and for research, benchmarking purposes, development and continuous improvement of Therap Global’s products and services. Therap Global will own all discoveries, ideas, improvements, products, services, software, data, intellectual property and other rights arising from and/or related to its use, analysis, research and/or development of the Source Data.
- Access and use information posted on the Service for the purpose of identifying and/or resolving problems and/or responding to problems with the Service and/or improving the Service and/or expanding the Service and/or making the Service more responsive to the needs of Therap Global’s customers; and
- Therap Global may disclose any Designated Care Recipient’s CI or other information of any kind to the extent required by law.
(b) Investigate any allegation that information posted on the Service is inaccurate, defamatory, or has been posted in violation of Applicable Laws.
(c) Remove or modify any information referred to in Subsection 7(b) which can be accessed by the public or by any other customer of Therap Global (or any of its affiliates).
(d) Suspend the Primary User’s and/or any Authorized User’s access to the Service upon: (i) any breach of the terms and conditions of this Agreement; or (ii) in the event Therap Global believes that such Primary User’s or Authorized User’s actions may cause financial loss or legal liability for such Primary User, any other Authorized User, other users or Therap Global, or may interfere with the proper operation of the Service (each of the matters mentioned in this subsection 7(d) is hereinafter a “Prohibited Behavior”). If the Primary User or any such Authorized User fails to cure any such breach within the applicable time period allowed under the relevant provisions of this Agreement, following notice from Therap Global, or if the Primary User or any such Authorized User fails to cease such Prohibited Behavior and indemnify Therap Global and cure, to the extent required hereunder, the consequences of such Prohibited Behavior, within 30 days of receiving notice of such Prohibited Behavior from Therap Global, then Therap Global may terminate this Agreement and the Primary User’s and its Authorized Users’ access to the Service.
(e) Change, suspend, or discontinue any aspect of the Service at any time, or any feature, without notice or liability. Notwithstanding the foregoing, if the Primary User decides, in the reasonable exercise of its discretion, that any change made by Therap Global under this subsection (e) adversely impacts the Primary User in a material way, the Primary User may terminate this Agreement by written notice to Therap Global given within thirty (30) days of the Primary User becoming aware of such change (and receive a refund of any unearned fees paid allocable to the number of full calendar months for which fees have been paid remaining after the effective date of termination; such termination will be effective on the date specified by the Primary User, in its notice of termination, which date is on or after the date such notice is given).
In no event will Therap Global sell, assign, lease, or dispose of any Primary User Information (as defined in Section 9(a)), except as permitted or required hereunder.
- Release. Because Therap Global is a passive recipient of information, not an information provider, in the event that the Primary User has a dispute with one or more Additional Users, Authorized Users or any other third party or parties, the Primary User shall release Therap Global (and its Affiliates) from all liability, claims, third party claims, demands and damages (whether actual, consequential or other) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
- Primary User Information.
(a) “Primary User Information” is defined as any information the Primary User or any of its Authorized Users, employees or agents posts, enters or inputs on the Service or otherwise provides to Therap Global. The Primary User is solely responsible for Primary User Information, and Therap Global acts as a passive recipient of information for the Primary User’s online entry, distribution, storage and/or publication of the Primary User Information.
(b) Primary User hereby covenants that neither the Primary User Information nor the Primary User’s activities on the Service and/or any Ancillary Service shall:
- be false, inaccurate or misleading;
- be in violation of any Applicable Laws;
- be defamatory;
- contain any program routine, device, code or instructions or other undisclosed feature, including, without limitation, a time bomb, virus, cancel bot, Easter egg, software lock, remote off-switch, bug, error, defect or trap door, that is designed to access, modify, delete, damage, disable, deactivate, interfere with, surreptitiously intercept, expropriate or otherwise harm any software, any hardware, computers, networks, data or other electronically stored information, or computer programs or systems;
- otherwise adversely affect access to or use of the Service or any Ancillary Service; or
- create liability for Therap Global or cause Therap Global to lose (in whole or in part) the services of its Internet Service Providers or other suppliers.
- Interference; Misappropriation of Proprietary Information. The Service contains robot exclusion headers. Much of the information on the Service is updated on a real time basis. The Primary User agrees that it will not permit any Authorized User to utilize any robot, spider, scraper or other automated means to access the Service for any purpose other than to enter, review, post, store and/or modify information on the Service, as to Designated Care Recipients, in each case within the respective authority of each Authorized User. Furthermore, the Primary User agrees that it will not permit any Authorized User to transfer his login information or password to any other person or to utilize any other person’s password or login information. In addition, the Primary User will not (and will not permit any Authorized User to):
- take any action that imposes, or may impose, in Therap Global’s sole discretion, an unreasonable or disproportionately large load on Therap Global’s infrastructure;
- interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
- bypass Therap Global’s robot exclusion headers or other measures it may use to prevent or restrict unauthorized access to the Service;
- allow access to the Service by any person or entity for the purpose of creating, designing or programing an alternative or replacement for all or any part of the Service;
- use the Service to provide record keeping or processing services to third parties on a commercial timesharing, rental or other sharing arrangement, or on a “service bureau” basis, or otherwise use or allow others to use the Service for the benefit of any third party;
- sell, lease, license or sublicense the Service, or any part thereof; or
- modify, adapt, publish, translate, reverse engineer, reverse compile, disassemble, decompile, or create derivative or collective works of the source or object code for the Service or any component thereof.
- NO WARRANTY. THERAP GLOBAL AND ITS AFFILIATES PROVIDE THE SERVICE “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE OR ANY INFORMATION POSTED OR STORED THEREON. THERAP GLOBAL AND ITS AFFILIATES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- LIMITATION ON LIABILITY. The Primary User acknowledges and understands that: (i) Therap Global does not input any information about Designated Care Recipients on the Service; and (ii) disruption of utility service, the need for periodic maintenance and installation of upgrades, internet based assaults upon the Service (e.g., worms, viruses, etc.) and external causes beyond the control of Therap Global may result in the Service not being available 24 hours a day, 7 days a week. In light of the foregoing, the Primary User acknowledges and agrees that neither Therap Global nor any of its Affiliates will have, and the Primary User hereby releases Therap Global and its Affiliates from, any liability for negligence or other tort or for breach of contract as a result of any failure or inability to access the Service, retrieve information from the Service, or any other claim or liability relating to or arising out of use or attempted use of the Service, or based on any claim relating to use of, or attempted use of, or any content contained in, the Ancillary Services. More specifically, the parties hereto hereby agree that, in no event, shall Therap Global be liable for any indirect, incidental, special, punitive, or consequential damages, (and in no event will Therap Global be liable for any lost or imputed profits, revenues, customers, opportunities or goodwill, or unavailability of the Service, or unavailability of any or all Ancillary Services, business interruption, lost data, or cost of procurement of substitute services) whether any of the foregoing arise from or relate to use or attempted use of the Service or use or attempted use of all or any part of the Ancillary Services, even if Therap Global has been advised of the possibility of any such damages.
Notwithstanding anything to the contrary contained herein, if Therap Global and/or any of its Affiliates is ever determined to have any liability to the Primary User, the Primary User hereby agrees and acknowledges that in no event will the total liability of Therap Global and/or its Affiliates for any and all claims, losses, and/or damages arising under this Agreement, arising in connection with the Service and/or arising from any other cause, exceed, in the aggregate, the greater of: (i) the total amount paid by the Primary User to Therap Global during the preceding twelve (12) month period; or (ii) the sum of $1,000.
The Primary User specifically understands that the foregoing waiver and release provisions are of the essence of this Agreement and that Therap Global would not enter into this Agreement, and that the Primary User and its Authorized Users would not be given access to the Service, without consenting to such waiver and release provisions.
- Indemnity. The Primary User agrees to indemnify and hold Therap Global and its Affiliates harmless from and against any and all claims, suits, demands, judgments, liability, damage, loss, cost and expense (including, without limitation, attorneys’ fees and costs of suit) arising out of or relating to the Primary User’s or any Additional User’s (or any Authorized User’s) use or attempted use of the Service or any Ancillary Service or a breach by the Primary User of this Agreement or the documents it incorporates by reference, or the Primary User’s or any Additional User’s (or Authorized User’s) violation of any law or the rights of any Designated Care Recipient or of any other third party. The Primary User will also be obligated to indemnify Therap Global to the extent the Primary User’s acts or omissions are responsible for any liability, damage, loss, cost or expense.
- No Agency. The Primary User and Therap Global are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
- Resolution of Disputes. In the event of a dispute between the parties, the dispute shall be resolved in accordance with the Dispute Resolution Procedures annexed to this Agreement as Exhibit “B” and incorporated herein.
(a) Any fees payable by the Primary User to Therap Global, for the services rendered or made available to the Primary User pursuant to this Agreement, shall be set forth in a separate written invoice or pricing agreement between the parties (hereinafter the “Pricing Memorandum”). Unless otherwise provided in the Pricing Memorandum, any annual fee due to Therap Global shall be paid in one lump sum, within 30 days of the execution of this Agreement. In succeeding years, any annual fee due shall be paid on the anniversary of the Effective Date of this Agreement. Notwithstanding anything to the contrary contained herein, Therap Global shall have the right to increase some or all of its fees on thirty (30) days’ notice after the expiration of the term set forth in the most recent Pricing Memorandum; provided, however, that the Primary User shall have the right to reject any change(s) in fees and immediately terminate this Agreement at any time prior to the effective date of any such fee change(s). If there is no term set forth in a Pricing Memorandum, the Pricing Memorandum will be deemed to have a term of twelve (12) months. Notwithstanding anything to the contrary contained herein, Therap Global can require payment of additional fees any time the Primary User requests additional services.
(b) In the event of the Primary User’s failure to make payment of any annual sum due to Therap Global on or before its due date, or in the event of the Primary User’s failure to make payment of any monthly or quarterly sum due to Therap Global within three (3) days of its due date, in addition to all other remedies provided at law, Therap Global shall have the right to terminate this Agreement or to suspend the Primary User’s and its Authorized Users’ access to the Service, in whole or in part, in its sole discretion, and without liability to the Primary User or any Authorized User or any third party. In the event of termination of this Agreement, neither the Primary User nor any of its Authorized Users will have any further right to access the Service for any reason, except as may be provided in any mutually agreed upon separate agreement.
(c) From time to time, Therap Global may offer upgraded or optional services and may elect, for a period of time, to offer such services without charge. Therap Global may, at any time, on thirty (30) days’ notice, elect to charge for such upgraded and/or optional services. In such an event, the Primary User will be obligated to pay for any such service which it is receiving at or after the expiration of such thirty (30) day period unless, prior to the expiration of said thirty (30) day period, the Primary User shall have notified Therap Global that it elects not to purchase such upgraded and/or optional service. In the event the Primary User elects not to purchase such upgraded and/or optional services, Therap Global, without further notice to the Primary User, shall have the right to terminate the Primary User’s access to such upgraded and/or optional services. Therap Global will be deemed to have given any notice to the Primary User described in this Section 17 as soon as such notice is posted on the Americas URL.
(d) Late Payments. The Primary User agrees to pay interest at the lower of eighteen (18%) percent per year, or the maximum rate permitted by law, on each amount not paid within five (5) days from its due date. Furthermore, the Primary User agrees to pay, as a late payment charge, the lesser of one and one-half percent (1.5%) per month, or any portion of a month, or the maximum late payment charge permitted by law on each amount not paid within thirty (30) days from its due date. Notwithstanding the foregoing, Therap Global will not assess both interest and the late payment charge for the same period of delinquency. The Primary User also agrees to pay all expenses of collection, including reasonable attorney fees and court costs, incurred by Therap Global in collecting amounts not paid within thirty (30) days from their due date.
- VAT, Sales Taxes and Exemption Certificates. The Primary User will be responsible for all applicable sales and use taxes, and all value added taxes, in connection with any and all payments due under this Agreement. If the Primary User qualifies for an exemption certificate, upon request, the Primary User shall provide to Therap Global a copy of the Tax Exemption Certificate or similar certificate, as the case may be, issued to the Primary User by any governmental authority.
- Term and Termination.
- Except as otherwise provided in the Pricing Memorandum, this Agreement shall be for an initial term of one year and shall automatically be renewed for successive one-year terms after the expiration of the initial term, unless at least thirty (30) days prior to the expiration of the then current term, either party shall have advised the other that this Agreement shall expire at the end of the then current term. Notwithstanding the forgoing, in any subsequent, but not the initial, one-year term of this Agreement, either party may terminate this Agreement without cause upon thirty (30) days’ prior notice to the other. If Therap Global terminates this Agreement without cause, it shall refund the unearned portion of the fees paid for such term based on the number of full months remaining in the term from and after the effective date of termination. If the Primary User terminates without cause, there shall be no refund of fees.
- Either party may immediately terminate this Agreement by giving written notice to the other party: (i) if the other party materially breaches any obligations under this Agreement and fails to cure such breach within thirty (30) days (or such longer period as may be provided in this Agreement) after the non-breaching party demands such cure; (ii) if the other party becomes insolvent or assigns all or substantially all of its assets or business for the benefit of its creditors; (iii) if the other party otherwise ceases to conduct business in the normal course; or (iv) if any Applicable Law or order causes, or would potentially cause, use of the Service or provision of the Service to cause a party to fail to comply with such Applicable Law or order.
- Sections 1 (Authorization to Use the Service), 2 (Representations, Warranties and Covenants by Primary User), 5 (No Remedy Except Termination), 7 (Reservation of Rights), 8 (Release), 10 (Interference; Misappropriation of Proprietary Information), 11 (Privacy), 12 (No Warranty), 13 (Limitation on Liability), 14 (Indemnity), 15 (No Agency), 16 (Resolution of Disputes), 17 (Fees), 18 (VAT, Sales Taxes and Exemption Certificates), 23 (General), 24 (Disclosure of Agreement) and 25 (Applicable Requirements Under License Agreements) shall survive any termination or expiration of this Agreement.
(d) In the event of termination of this Agreement for any reason, Therap Global may immediately and permanently suspend the Primary User’s and its Authorized Users’ access to the Service, without liability to the Primary User, any Additional User, any Authorized User or any third party, and neither the Primary User nor any of the Authorized Users specified by the Primary User shall have any further right to access the Service for any reason, except as otherwise provided in any separate agreement.
(e) If this Agreement is terminated for any reason, Therap Global shall not have any obligation to retain any information about any Designated Care Recipient, on its Service or elsewhere, in any form, or to transfer any such information to the Primary User or to any Authorized User. In the absence of an agreement allowing continued access to the Service, Therap Global shall be entitled to delete all such information from the Service and shall have no obligation to maintain any such information in any form, from and after six (6) months following the date of such termination.
- Updating Information Regarding Authorized Users. It will be the responsibility of the Primary User to see to it that the appropriate entries are promptly input into the Service to reflect each of the following events, which will have the effect of changing one or more Authorized Users’ access to the CI of various Designated Care Recipients:
(i) If any Authorized User ceases to be an Authorized User as to any Designated Care Recipient(s) for any reason, such as a termination of employment or agency, change in job responsibility, transfer, etc., whether such change relates to an employee or agent of the Primary User, or an employee or agent of any Additional User which was previously an Authorized User.
(ii) If there is a change in the information which may be accessed by any Authorized User relating to one or more Designated Care Recipients.
(iii) If any Designated Care Recipient ceases to be receiving services or support from the Primary User or any Additional User.
In addition to all the other provisions requiring the Primary User to indemnify Therap Global hereunder, the Primary User agrees that it will indemnify Therap Global from and against any adverse consequences resulting from the failure of the Primary User to immediately input any of the changes listed above on the Service, or any negligence or failure to exercise reasonable care on the part of the Primary User or any Authorized User in inputting any information on the Service, or the failure of the Primary User to take any and all reasonable steps, or its failure to fulfill its obligations imposed by law, to see to it that all Authorized Users fulfill their requirements imposed by law and act in accordance with the terms of this Agreement, all other agreements between the Primary User and any Additional User, and the Service User Agreement.
- Increasing the Number of Designated Care Recipients. In the event the Primary User wants to add additional Care Recipients to the Service, thereby making them Designated Care Recipients, it may do so upon inputting the appropriate information on the Service and paying the fee, if any, set forth on the Pricing Memorandum for the increase in the number of Designated Care Recipients, which fee will cover the balance of the current term of this Agreement. Any additional amount due for any increase in the number of Designated Care Recipients will be due in one lump sum within ten days of the date when the total number of Designated Care Recipients exceeds the initial number set forth in the Pricing Memorandum or the number for which payments have been made already, as the case may be. Upon adding such additional Designated Care Recipients, the Primary User shall also cause to be input who the Authorized Users will be for each new Designated Care Recipient (and the information each will have access to as to each Designated Care Recipient) and the level of authorized access for each Authorized User. Notwithstanding anything to the contrary contained herein, in no event will the Primary User or any Authorized User: (i) open a file on the Service for any individual who is not then a Designated Care Recipient; or (ii) place CI concerning multiple individuals on the Service in such a way that it might appear that all such data relates to a single individual. (Notwithstanding anything to the contrary contained herein, if there is a violation of subsection (ii) of this Section 21, the Primary User will indemnify Therap Global against any adverse consequences resulting therefrom).
- Notices. Except as otherwise explicitly stated herein, all notices shall be given by certified mail (return receipt requested), by e-mail or by internationally recognized carrier, directed to the addresses set forth below or to such other address of which a party shall hereafter advise the other pursuant to the terms of this Section 22 (provided, however, that notice given by e-mail will not be considered given unless it is confirmed by another written notice sent within 24 hours by certified mail (return receipt requested) or by internationally recognized carrier). Notice shall be deemed complete upon receipt or, if refused, on the date of such refusal (and if the sending party is notified that the e-mail address is invalid, notice will not be deemed given until it is sent in another form).
Notices directed to Therap Global: 562 Watertown Avenue
Waterbury, Connecticut 06708-2240
Notices directed to the Primary User: Address of Primary User set forth above
- General. This Agreement, and all related documents and all matters arising out of or relating to this Agreement, shall be governed in all respects by and construed in accordance with the contract and tort law of the State of New York, without regard to the conflict of law provisions thereof, to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York; as such laws are applied to agreements entered into and to be performed entirely within New York between New York residents. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The Primary User agrees that this Agreement, and all incorporated agreements and exhibits, may be assigned by Therap Global by providing notice in accordance with Section 22 “Notices.” This Agreement may not be assigned by the Primary User without the prior written consent of Therap Global, which consent may be withheld for any reason. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section. Therap Global’s failure to act with respect to a breach by the Primary User or others does not constitute a waiver of Therap Global’s right to act with respect to any subsequent or similar breach. For the avoidance of doubt, except when the context clearly indicates a contrary intent, all references to the Primary User’s Authorized Users shall include: (i) employees and/or agents of any Additional User who are identified as Authorized Users pursuant to this Agreement; and (ii) any individual who is an Additional User by virtue of the fact that he or she is an Authorized User even though he or she is not an agent or an employee of the Primary User or any other Additional User. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof. Nothing in this Agreement shall create or be deemed to create any third-party beneficiary rights in any person or entity not a party to this Agreement.
- Disclosure of Agreement. The Primary User shall not disclose the terms and conditions of this Agreement, or any price proposals, estimates and/or invoices sent to the Primary User by Therap Global, to third parties (except the Primary User’s auditors, legal counsel or third parties whose review is mandated by law) without the prior written authorization of Therap Global.
- Applicable Requirements Under License Agreements. In an effort to enhance the functionalities available from the Service, Therap Global (or an affiliate) may enter into license agreements with third parties (each is hereinafter a “Third-Party License”) which may impose restrictions or obligations on the Primary User and its Authorized Users (hereinafter the “Third Party License Terms and Conditions”). Before offering any functionality to the Primary User available under a Third-Party License, the Primary User will be advised of the applicable Third-Party License Terms and Conditions. The Primary User must agree, in writing, to abide by such Third-Party License Terms and Conditions in order to obtain the functionality available under such Third-Party License. If the Primary User or any Authorized User violates any of such Third-Party License Terms and Conditions, the Primary User will be: (i) obligated under this Agreement to indemnify and hold Therap Global harmless from the consequences of such violation; and (ii) at Therap Global’s option, such violation will be deemed to constitute a material breach of this Agreement.
THE INDIVIDUAL SIGNING THIS AGREEMENT ON BEHALF OF THE PRIMARY USER ACKNOWLEDGES THAT SUCH INDIVIDUAL HAS READ THIS AGREEMENT (INCLUDING THE FOLLOWING EXHIBITS WHICH ARE ATTACHMENTS TO AND A PART OF THIS AGREEMENT), THAT SUCH INDIVIDUAL IS AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE PRIMARY USER, THAT SUCH INDIVIDUAL UNDERSTANDS THE TERMS OF THIS AGREEMENT AND THAT, IF SUCH INDIVIDUAL SIGNS THIS AGREEMENT, THE PRIMARY USER WILL BE BOUND BY THIS AGREEMENT.
DISPUTE RESOLUTION PROCEDURES
(a) Except in the case of a party seeking injunctive relief, this Exhibit “B” governs any dispute, disagreement, claim, or controversy between the parties arising out of or relating to the End User Legal Agreement (the “Agreement”) to which this Exhibit “B” pertains (the “Disputed Matter”). All Disputed Matters shall be submitted to the following dispute resolution process:
(i) Internal Mediation. Each party which is an entity shall designate a dispute resolution officer (the “Dispute Resolution Officer”) who shall have principal responsibility and authority to resolve disputes between such party and the other party. Any individual who is party to a Disputed Matter shall appear on his or her own behalf. In the event a dispute arises between parties under the Agreement, the Dispute Resolution Officers, and/or such individuals, as the case may be, shall use their best efforts to resolve the Disputed Matter within five (5) business days after the matter has been submitted for resolution. If such persons do not agree upon a decision within five (5) business days after referral of the matter to them, the parties shall proceed to the next stage of the dispute resolution procedure.
(ii) Outside Mediation. Either party may, upon notice to the other and within five (5) days after the conclusion of internal mediation, elect outside mediation. In outside mediation, each party which is an entity shall designate a person (with authority to settle the dispute) who will sit on a panel, along with each party that is an individual and a mutually acceptable neutral adviser. Each party will present its case to the panel at a hearing which will occur no more than ten (10) days after a party serves notice electing outside mediation. Each party may be represented at the hearing by attorneys. If the matter cannot be resolved at such hearing by the parties, the neutral adviser may be asked to assist the parties in evaluating the strengths and weaknesses of each party’s position on the merits of the Disputed Matter. Thereafter, the parties shall meet and try again to resolve the matter. If the matter cannot be resolved at such meeting, the parties’ only recourse is litigation in State or Federal Court in New York County, New York. The mediation proceedings will have been without prejudice to the legal position of either party. No litigation may commence concerning the Disputed Matter until fifteen (15) days have elapsed from the last day of the final hearing. The parties shall each bear their respective costs incurred in connection with this procedure, except that they shall share equally the fees and expenses of the neutral adviser and the costs of the facility for the hearing. Therap Global and the other party to the dispute agree to use their best efforts to mutually agree on the use of a facility for which no charge will be made.
(b) Except in connection with seeking an injunction not involving the obtaining of money damages, neither party will institute any action nor proceeding against the other party in any court concerning any Disputed Matter until the mediation procedures have been completed.
- Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the End User Legal Agreement, including these Dispute Resolution Procedures (the “DRP”), shall be governed by the internal law of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the laws of the State of New York. Jurisdiction for any litigation shall be in the appropriate federal and state courts within New York County, New York, and each party waives any claim of improper venue or inconvenience of the forum and agrees to service of process by certified mail, return receipt requested.
- Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.