These Health Care Transformation Terms and Conditions (the “Terms”) govern the Services specified in any Order Form: (a) that reference and incorporate these Terms and (b) that are by and between Health Care Transformation LLC, a California limited liability company (“HCT”), and the client named in any Order Form (the “Client”); (each a “Party” and collectively the “Parties”).
In addition to other definitions contained in the Agreement, the following definitions will apply:
“Agreement” means these Terms, any and all Order Form’s, and all attachments, exhibits, and amendments thereto.
“Analytics Data” means all data contained in Analytics Reports and all data collected by HCT based on a visitor’s use of the Services, including survey responses and interaction with Videos.
“Analytics Reports” means HCT’s reports provided by HCT to Client or made available by HCT to Client through the HCT Platform providing an overview and detailed analysis of the Analytics Data.
“Claim” will mean all claims, judgments, settlements, liabilities, damages, expenses, penalties and fees (including reasonable attorney’s fees).
“Client Content” means any content identified as the Client Content in any Order Form that is provided by Client for use in one or more of the Videos, including any such content that is owned by, and licensed from, third party vendors.
“Client Marks” mean the trademarks and service marks of Client that are made available to HCT pursuant to this Agreement.
“Client Owned Platforms” means the websites, applications and other user-facing media properties that are owned and controlled by Client that enable the HCT Embed Code.
“Confidential Information” means all written or oral information, disclosed by one Party (the “Disclosing Party”) to the other (the “Receiving Party”) (or otherwise observed by the Receiving Party in connection with this Agreement) related to the business, products, services or operations of the Disclosing Party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including: (1) ideas, processes, data, other works of authorship; (2) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers and agents and (3) the existence of any business discussions, negotiations, or agreements between the Disclosing Party and the Receiving Party or any third party.
“HCT Embed Code” means HCT’s proprietary HTML or other code that enables: (a) HCT Platform configurations and (b) the HCT collection of the Analytics Data.
“HCT Materials” means, collectively, the Analytics Data, Analytics Reports, HCT Platform, HCT Embed Code and Videos.
“HCT Platform” means HCT’s proprietary platform that hosts and configures the Videos and provides Analytics Data.
“Order Form” means the Order Form to which these terms and conditions are attached and any other Order Form that is executed by a representative of each Party and to which these Terms are incorporated. The Cover Page of the Master Services Agreement is an Order Form.
“Services” means the services provided by HCT pursuant to any Order Form.
“Videos” means the videos produced by HCT and identified in any Order Form as the Videos, which videos are displayed, or intended to be displayed, on the Client Owned Platforms pursuant to the license granted in Section 2.2.
- SERVICES, RIGHTS AND OBLIGATIONS
- 2.1 Provision of Services. Subject to the terms and conditions of this Agreement, HCT will provide the Services in a professional manner in accordance with industry standards. The Services to be provided by HCT will be described and set forth in one or more Order Forms agreed upon by the parties from time to time. Client may request a change in the Services under an Order Form by submitting a change request to HCT in writing. HCT will evaluate each change requested by Client and will provide Client with a proposed amendment to the Order Form (“Change Order”) that includes (a) a description of the proposed change(s), (b) impact on price (if any) based on any change in the time required to perform the Services or the cost of performance, and (c) impact on project schedule, any applicable milestones, any additional or other terms of the Agreement. No change will be effective until the Parties execute a Change Order identifying the change(s) in the Services and Fees (if any).
- 2.2 Licenses to Client. Subject to the terms and conditions of this Agreement, HCT grants to Client a worldwide, non-exclusive, non-transferable (except as provided in Section 8.5 below), right and license during the Terms to:
- embed the HCT Embed Code on the Client Owned Platforms solely to exercise the license granted in (b) below;
- display the Videos solely: (i) as hosted by HCT on the Platform; (ii) from the Client Owned Platforms and (ii) using the clickable links and other technology embedded in the Videos that enable the HCT Platform to collect and analyze user interaction with the Videos, and
- to use the Analytics Data Reports for its internal business purposes.
- 2.3 Licenses to HCT. Client grants to HCT a worldwide, non-exclusive, non-transferable (except as provided in Section 8.5 below), right and license during the Term to: (a) use, reproduce and display the Client Marks and (b) use, reproduce, modify and distribute the Client Content to perform the Services and exercise its rights hereunder. Other than the limited license granted herein, Client retains all right, title and interest in the Client Marks and Client Content. All benefit from HCT’s use of the Client Marks will inure solely for the benefit of Client.
- 2.4 Restrictions. Client may not: (a) use the HCT Materials other than as expressly provided under the Agreement; (b) use any Videos in a manner that could be considered libelous, obscene, or illegal; (c) modify or create derivative works of the HCT Materials; (d) resell, redistribute, provide access to, share or transfer any HCT Materials except as specifically provided herein or (e) copy any features, functions or graphics of the HCT Materials.
- 2.5 Client Review of Videos, Scripts and Other Interim Materials. In conformance with the schedule set forth in any Order Form, Client will review all scripts, on-screen graphics, calls-to-action, survey questions, on-screen Talent selection and wardrobe, Videos, and other materials submitted for approval (the “Review Materials”) and will ensure that the information contained in any Review Materials, including any information regarding healthcare or operational protocols, are accurate, consistent with the applicable standards of care and will not be injurious to a user’s health (collectively, “Accurate”). If the Review Materials are not Accurate, Client will in accordance with the agreed upon schedule in the Order Form, notify HCT in writing and work with HCT to revise the Review Materials, which HCT will resubmit for approval, according to the terms stated in the Order Form. Once Review Materials are approved, additional changes required at the request of Client may be subject to the payment of additional fees.
- 2.6 Talent. Unless otherwise agreed to by the Parties, all individuals who appear in a Video (the “Talent”) will be required to execute HCT’s standard release form (the “HCT Release”). In the event that any Talent supplied by Client does not agree to execute the HCT Release, the Parties will work to find alternate Talent, and the Client may incur additional costs.
- 2.8 Feedback. HCT in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Client to HCT in connection with its access to and use of the Services and HCT Platform, including any response provided in connection with any Review Materials, (all such responses, comments and suggestions provided by Client hereunder constitute, collectively, the “Feedback”). Client hereby grants HCT a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to use, reproduce, publicly display, publicly perform, distribute, modify, create derivative works of, make, have made, sell, offer for sale, import and otherwise exploit the Feedback in products and services.
- 2.9 Costs and Expenses. Client will be responsible for all costs and expenses associated with making the Client Content and Client Marks available to HCT or otherwise in its performance of its obligations or its receipt of benefits hereunder.
- FEES AND PAYMENTS
- 3.1 Invoicing. Unless otherwise set forth in any Order, all fees related to the Services will be invoiced by HCT in advance in accordance with the Order Form (the “Fees”). HCT may increase the Fees at any time. Any increases to the Fees will apply at the beginning of the Client’s following Renewal Term.
- 3.2 Payment. Client will pay the Fees to HCT in accordance with the payment schedule set forth in the applicable Order Form. Unless otherwise specified in any Order Form, all invoices issued by HCT will be due and payable thirty (30) days after receipt by Client. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any portion of the Fees that are not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
- 3.3 Expenses. Client will reimburse HCT for any pre-approved travel and out-of-pocket expenses incurred by HCT in connection with the provision of Services, provided that Client has approved such expenses in writing, via email, or in the applicable Order Form.
- 3.4 Audit. HCT may audit Client’s records relating to its use of the Services to verify Client’s compliance with the terms of this Agreement. HCT will give Client at least five (5) days’ advance notice of any such audit and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Client’s normal operations. If any such audit should disclose any underpayment of Fees, Client shall promptly pay HCT such underpaid amount, together with interest thereon, at the rate specified in Section 3.2. If the amount of such underpayment exceeds five percent (5%) of Fees actually paid during the audited period, Client shall also pay HCT for HCT’s reasonable expenses associated with such audit.
- 4.1 During this Agreement, each Party will have access to certain Confidential Information of the other Party. Each Party agrees: (a) not to disclose the Confidential Information of the other Party to anyone except its employees, contractors and advisors on a strict need to know basis and subject to a written duty of confidence, (b) to use the Confidential Information strictly for the performance or receipt of this Agreement, and (c) to use all commercially reasonable endeavors to protect the confidentiality of the other Party’s Confidential Information. The Receiving Party will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
- 4.2 The provisions of Clause 1 will not apply to Confidential Information that (a) is or becomes publicly available through no fault of the recipient, (b) is already in the recipient’s possession at the time of its disclosure without any duty of confidence, or (c) is independently developed by the recipient without use of or reference to the disclosing Party’s Confidential Information. Notwithstanding the foregoing, each Party may disclose Confidential Information to the extent required: (1) by securities laws, (2) to comply with the order of a court or other governmental body, or as necessary to comply with applicable law, or (3) to establish or preserve a Party’s rights under this Agreement.
- WARRANTIES, INDEMNITIES AND LIMITATIONS ON LIABILITY
- 5.1 General Representations. Each Party hereby represents and warrants: (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
- 5.2 Services. HCT warrants that the Services will be performed in a good and professional manner consistent with industry standards. In the event that HCT breaches any such warranty, Client’s sole and exclusive remedy will be for HCT to reperform the Services in a manner that conforms with the warranty.
- 5.3 Client Content. Client represents and warrants that it has obtained and will maintain throughout the Term, all rights, consents and permissions necessary:: (a) for Client to make available the Client Content and Client Marks to HCT and (b) for HCT to use the Client Content and Client Marks as contemplated herein and to collect and use the Analytics Data as contemplated herein.
- 5.4 Compliance with Laws. Client will use the Services in accordance with all applicable laws, rules and regulations.
- 5.5 Disclaimer of Representations and Warranties. OTHER THAN AS SET FORTH IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- 5.6 HCT Indemnity. HCT will indemnify, defend and hold Client, its directors, officers, and employees (each a “Client Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third-party Claim to the extent alleging that the Services infringe any U.S. copyright, trademark or trade secret.
- 5.7 Exclusions. Section 5.6 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Client in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by HCT if the claim would not have arisen but for the combination, operation or use, or (c) the Client Content, the Client Marks, and Review Materials (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Client Indemnity Responsibility”).
- 5.8 Client Indemnity. Client will indemnify, defend and hold harmless HCT, its directors, officers, and employees (each a “HCT Indemnified Party”) from and against any and all Losses arising out of any third-party Claim (a) alleging a Client breach of any Client representation or warranty, (b) any information contained in any Review Materials approved by Client, including any information regarding healthcare and operational protocols or the standard of care or (c) arising out of any Client Indemnity Responsibility.
- 5.9 Indemnification Process. Each Party will conduct the defense of all such Claims, at its own expense, subject to the indemnified Party’s right to participate with its own counsel at its expense and to approve any settlement that purports to bind the indemnified Party. Each Party’s indemnification obligations under this Section 5 with respect to Claims are conditioned on (a) each Party’s prompt written notification to the other Party of third-party Claims for which the Party is seeking indemnification by the other Party setting forth in reasonable detail the nature of such Claim, (b) the indemnified Party not taking any action that would materially prejudice the indemnifying Party’s defense of such Claim and (c) reasonable cooperation by the indemnified Party, at the indemnifying Party’s expense, with respect to the defense of such Claim.
- 5.10 Limitation of Liability. IN NO CASE WILL THE AGGREGATE LIABILITY OF EITHER CLIENT OR HCT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE CUMULATIVE AMOUNTS PAID OR PAYABLE BY CLIENT TO HCT, IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THAT THE APPLICABLE CLAIM AROSE. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- TERM; TERMINATION
- 6.1 Term. The term of this Agreement will commence on the date that the first Order Form goes into effect and will continue for as long as any Order Form is in effect, unless terminated in accordance with this Section 6 or as otherwise expressly provided in this Agreement (the “Term”). Unless otherwise indicated in the Order Form, (a) each Order Form will be in effect for the period set forth in the applicable Order Form and (b) each Order Form will automatically renew for additional two year periods unless either party provides to the other written notice of non-renewal no less than ninety (90) days prior to the end of the then current term.
- 6.2 Termination. Either party may terminate this Agreement or any Order Form, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.
- 6.3 Other Termination Rights. Either Party may terminate the Agreement immediately upon written notice to the other Party if the other Party (1) is liquidated, dissolved, or adjudged to be in a state of bankruptcy or receivership, (2) is unable to pay its debts as they become due, makes an assignment to or for the benefit of its creditors or takes advantage of any law for the benefit of debtors or (3) ceases to conduct business for any reason on an ongoing basis leaving no successor in interest.
- 6.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to HCT prior to such termination or expiration will be immediately due and payable and (b) all licensed and access rights granted will immediately cease to exist. Sections 2.8 and 3 through 8 will survive any expiration or termination of this Agreement.
- 6.5 Suspension of Service(s). At any time during the Term, HCT may, suspend access to any Service, at its discretion, including for (a) a threat to the technical security or technical integrity of the Services or (b) any amount due under this Terms if not received by HCT within fifteen (15) days after it was due. HCT will use reasonable efforts to notify Client prior to any suspension. Where not practicable to provide notice prior to the suspension, HCT will provide Client notice of the suspension promptly thereafter.
- 7.1 HCT IP. As between HCT and Client, HCT retains all ownership of the HCT Materials, including the portion of the HCT Platform that enables the insertion of clickable links within, and provides the Analytics Data (the “HCT IP”); all improvements and enhancements to the HCT IP; provided, however, that HCT does not own any Client Marks, which Client Marks will remain the sole and exclusive property of Client.
- 7.2 Client IP. As between Client and HCT, Client retains all ownership of the Client Content and Client Marks.
- 8.1 Publicity: Except as set forth in the Order Form, no Party will issue or permit the issuances of, directly or indirectly, any press release or any publicity whatsoever regarding the Agreement or the other Parties, without prior coordination with and written approval by the other Parties, which may be granted or withheld in each Party’s sole discretion.
- 8.2 Entire Agreement: Each Party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms. The Agreement represents the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations, understandings, representations, statements and writings among the Parties relating thereto with regard to the subject matter hereof. No modification, alteration, waiver or change in any of the terms of this Agreement will be valid or binding upon the Parties hereto unless made in writing and duly executed by both of the Parties hereto. Notwithstanding the foregoing, HCT may modify the Terms upon no less than ninety (90) days’ notice, with the understanding that no change will be effective until the commencement of the next Renewal Term.
- 8.3 Conflicting Provisions: In the event of a conflict between any provision in these Terms and in any Order Form, the provision in the Order Form will prevail, but only for that Order Form.
- 8.4 Law/Jurisdiction: This Agreement will be governed by and interpreted in accordance with the laws of the State of California without regard to the principles of conflicts of law. The parties consent and agree to non-exclusive personal jurisdiction and venue in Los Angeles County, California courts for the resolution of disputes between the parties arising out of this Agreement or its performance. Should any part of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement will remain binding upon the Parties.
- 8.5 Assignment: Neither Party will assign or transfer by operation or law or otherwise this Agreement in whole or in part without the other Party’s express prior written consent; provided, however, that no such consent will be necessary in the event of such an assignment to an entity that controls, is controlled by, or is under common control with the assigning Party or in the event of a sale of all or substantially all of the stock and/or assets of a Party, whether by acquisition, merger or otherwise.
- 8.6 Independent Contractors: The Parties acknowledge that they are dealing with each other as independent contractors. Nothing in this Agreement may be construed as creating or constituting an employer-employee relationship, a partnership, a joint venture, or any agency between the Parties.
- 8.7 Notices: All notices hereunder to the Client will be addressed to the person and address indicated in the Notice section of the Order Form. Each party may update the notice section upon written notice to the other. Except as otherwise provided herein, all notices will be in writing and personally delivered; served by certified mail, return receipt requested; by overnight mail service such as Federal Express, all charges pre-paid; by e-mail; or by fax. Except as otherwise provided herein, notices will be deemed to be received upon the earlier of (a) actual receipt or (b) three (3) days after such notice is provided by the sender to the applicable delivery service for delivery. The failure or refusal of the recipient to accept or receive notice given hereunder does not affect the validity of the notice.
- 8.8 Waiver: Waiver by either Party of a default or breach or a succession of defaults or breaches, or any failure by either Party to enforce any rights hereunder, will not be deemed to constitute a waiver of any subsequent default or breach with respect to the same or any other provision hereof, and will not deprive such Party of any right to terminate this Agreement arising by reason of any subsequent default or breach.
- 8.9 Headings: The headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
- 8.10 Counterparts: This Agreement may be executed by facsimile or email and in counterparts, each of which (including signature pages) will be deemed an original, but all of which together will be deemed one and the same instrument.