This Chaos Genius Terms of Services Agreement (“Terms”) is effective as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”) and is by and between GoodHealth Technologies, Inc. (“Chaos Genius”), a Delaware corporation with a place of business at 3260 Hillview Avenue, CA 94304 (“Company”), and the customer set forth on the Order Form (“Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the Terms of Services Agreement (“Terms”) and the terms of any Order Form, the terms of the Order Form control.
SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services and applicable support services. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. The Services are purchased as subscriptions for the term as stated in the Order Form referencing this Terms.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly, or indirectly:
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”)
- modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services)
- use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or
- modify, remove, or obstruct any proprietary notices or labels.
Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
Federal Government End Use Provisions
Federal Government End Use Provisions. If the Services are being or have been acquired with U.S. Federal Government funds, or Customer is an agency, department, or other entity of the United States Government, as defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations.
Failure to Comply.
Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer Shall Obtain and Maintain Equipment.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Protection of Customer Data.
Protection of Customer Data. Company will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of any non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes Customer Data.
Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
Protection of Confidential Information.
The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure
The confidentiality obligations set forth in this Section 3 shall survive for a period of five (5) years from the date of the initial disclosure of the applicable Confidential Information.
Customer owns all rights, title and interest in and to the Customer Data. Customer grants to Company an exclusive, non-transferable, worldwide, and royalty-free license to use and exploit Customer Data to provide the Services. The customer understands and agrees that in an event of change of control wherein the Company is merged and/or reconstituted into another entity, then, the license as stated above shall be extended to such entities.
Deletion or Return of Customer Data.
Upon termination or expiration of this Agreement, Company shall, upon Customer’s discretion, delete or make available to Customer for retrieval all relevant Customer Data in Company’s possession, with the exception of (i) any Customer Data that Company is required to retain by an applicable law; and (ii) any Customer Data that is aggregated or anonymized data that is not personal information or personal data, as defined by any applicable data privacy laws or regulations.
Company shall own and retain all right, title and interest in and to (a) the Services and Software, (b) all improvements, enhancements or modifications thereto, (c) any software, applications, inventions or other technology developed in connection with implementing or supporting the Services, and (d) all intellectual property rights related to any of the foregoing.
Company grants Customer a non-exclusive, non-transferable, non-sublicensable right to and license to access and use the Services as set forth in the Order Form all subject to the terms and conditions of this Terms and Conditions and the Order Form.
PAYMENT OF FEES
Customer will pay Company the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer.
Invoicing and Payment.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company within thirty (30) days the invoice date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
The Customer understands and agrees that no refunds shall be provided by the Company during the Term of this Agreement or upon termination of this Agreement. Unless agreed to otherwise, all payments under the Order Form and this Agreement shall be made upfront, as per the terms of Clause 5.2.
TERM AND TERMINATION
Subject to earlier termination as provided below, this agreement is for the initial service term as specified in the order form and shall be automatically renewed for additional periods of the same duration as the initial service term (any such additional period, a “subsequent term”, and collectively with the initial term and any prior subsequent terms, the “term”), unless either party requests termination at east thirty (30) days prior to the end of the then-current term. The customer understands and agrees that unless otherwise agreed to between the parties, prior to the auto-renewal of the term of this agreement, the total amount for which the invoices shall be generated shall be the same total amount purchased by the customer during the initial service term and/or any subsequent term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and the responsible party doesn’t resolve the issue within (thirty) 30 days. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, payment obligation, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;
(B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;
(C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR
(D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Each party shall indemnify and hold harmless the other party, and its successors and assigns, from and against any and all Claims asserted against, imposed upon or incurred by the party resulting from or arising out of negligence or breach of this Agreement. For purposes hereof “Claims” means all third-party demands, claims and actions, as well as. all associated liabilities, losses, costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and expenses.
GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
The parties waive their rights to seek remedies in court in any jurisdiction, and will resolve any and all claims, disputes, or controversies relating in any way to this Agreement ("Disputes") as set forth in this Section. Nothing in this Section will be construed to waive any rights or timely performance of any obligations under this Agreement.
(a) The party raising the Dispute will promptly provide the other party with a written notice reasonably detailing the Dispute (a "Dispute Notice"). The parties will attempt to resolve the Dispute during the 30-day period after a party's receipt of a Dispute Notice.
(b) If the parties cannot timely resolve the Dispute through negotiation, before resorting to arbitration, the parties will try in good faith to settle the Dispute by mediation before a mutually agreed upon mediator. The mediation will be conducted in English and administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures. If the parties are unable to agree upon a mutually acceptable mediator, the AAA will appoint a qualified mediator. The mediation proceeding will take place on the earliest practicable date following the submission of a request for mediation by either party, which request will be submitted within sixty (60) days after party’s receipt of a Dispute Notice.
(c) If the Dispute is not resolved through mediation, the parties will submit the Dispute to final and binding arbitration administered by the AAA under its Commercial Arbitration Rules. The arbitration will be conducted by a mutually agreed panel of 3 neutral arbitrators (or a panel of 3 selected by the AAA if the parties cannot agree). The arbitrators' award may be entered and enforced in any court with competent jurisdiction. The costs of the arbitration proceeding, including reasonable attorneys' fees and costs, will be determined by the arbitrators, who may apportion costs equally, or in accordance with any finding of fault or lack of good faith of either party.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by either Party except with prior written consent of the other Party. For avoidance of doubts, change of control or internal reorganization of a party shall not deem to be an assignment for the purpose of this clause and no prior approval from the other party shall be required for the same.
This Agreement along with the Order Form is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
All notices under this Agreement will be in writing and will be deemed to have been duly given
- (i) when received, if personally delivered;
- (ii) when receipt is electronically confirmed, if transmitted by facsimile or e-mail
- (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and
- (iv) upon receipt, if sent by certified or registered mail, return receipt requested
Customer agrees that Company may identify Customer as a customer of Company in advertising, media relations, trade shows, the website, and other similar promotional activities, using Customer’s name and trademarks in accordance with Customer’s trademark guidelines.