This Agreement sets out the basis on which Injala, Inc. (“Company”) makes an
Internet-accessible software-as-a-service platform that enables customers to perform
insurance verification (“Services”) available to you (“Customer” or “you”), and the
terms and conditions on which you may use the Services.
Company reserves the right to change, modify, add, or delete provisions in this
Agreement at any time, in accordance with the procedures described below in Section
9.
-
1. SERVICES
1.1. Subject to the terms and conditions of this Agreement, Company will use
commercially reasonable efforts to provide Customer the Services during the
Term (as defined below), and hereby grants Customer a non-exclusive,
non-sublicensable (except to Users), non-transferable right to access and
use the Services during the Term solely for Customer’s internal business
purposes. As part of the registration process, Customer will identify an
administrative user name and password for Customer’s individual account or
company account, as applicable. Customer may use the administrative user
name and password to create Users (each with a user password) up to the
maximum number of Users permitted in an applicable order form (“Order
Form”). [Asuretify to confirm ordering process – we want the EULA to
follow your process but have suggested a standard “Order Form” + EULA
process for now – we can also eliminate the order form concept
entirely] For the avoidance of doubt, the individual who uses the
administrative user name and password to create additional Users is also a
“User” hereunder. User accounts are issued on an individual basis and may
not be shared among Customer personnel or transferred among Customer
personnel or otherwise, without Company’s prior written consent.
1.2. In using the Services, Customer may provide data, results, reports and
other inputs (the “Inputs”) and generate data, results, reports and other
outputs (the “Results”), which may be exported or downloaded by Customer.
Unless otherwise set forth in the Order Form or agreed to in writing by
Company, Customer may only export Results for use internally.
-
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Unless otherwise set forth in the Order Form, Customer will not, and
will not permit any third party to: (a) 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 the Results (except to the extent such restrictions are contrary to
applicable law); (b) modify, translate, or create derivative works based on
the Services; (c) use the Services for timesharing or service bureau
purposes or otherwise for the benefit of a third party; (d) provide access
to the Services to any person who is not a User; (e) exceed any applicable
user cap; (f) remove any proprietary notices or labels, including with
respect to the licensors of any third party data made available via the
Services; (g) publish or otherwise disclose the Results (other than in
connection with a commercial transaction for which the Services are used to
obtain the Results); (h) use the Services or the Results to build a similar
or competitive product or service; or (i) otherwise use the Services or the
Results in a manner inconsistent with this Agreement.
2.2. Customer represents, covenants, and warrants that Customer will use the
Services only in compliance with Company’s standard published policies and
documentation then in effect and all applicable laws and regulations.
Customer is solely responsible for all Inputs, including data, information,
text, content and other materials, that are uploaded, posted, delivered,
provided or otherwise transmitted or stored by or on behalf of Customer in
connection with, or relating to, the Service. 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 in violation of the
foregoing. Customer will be responsible for maintaining the security of the
Customer account, passwords (including but not limited to administrative and
user passwords) and files, and for all uses of accounts linked to Customer’s
or its Users’ login credentials.
-
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. As used herein, “Confidential Information” means, subject to the
exceptions set forth in the following sentence, any information or data,
regardless of whether it is in tangible form, disclosed by either party (the
“Disclosing Party”) that the Disclosing Party has either marked as
confidential or proprietary, or has identified in writing as confidential or
proprietary within thirty (30) days of disclosure to the other party (the
“Receiving Party”); provided, however, that a Disclosing Party’s business
plans, strategies, technology, research and development, current and
prospective customers, billing records, and products or services will be
deemed Confidential Information of the Disclosing Party even if not so
marked or identified. Company’s Confidential Information includes, without
limitation, the Services and the terms of this Agreement. Information will
not be deemed Confidential Information if such information: (a) is known to
the Receiving Party prior to receipt from the Disclosing Party directly or
indirectly from a source other than one having an obligation of
confidentiality to the Disclosing Party; (b) becomes known (independently of
disclosure by the Disclosing Party) to the Receiving Party directly or
indirectly from a source other than one having an obligation of
confidentiality to the Disclosing Party; or (c) becomes publicly known or
otherwise ceases to be secret or confidential, except through a breach of
this Agreement by the Receiving Party. Each party agrees that it will use
the Confidential Information of the other party solely to perform its
obligations or exercise its rights under this Agreement. Neither party will
disclose, or permit to be disclosed, the other party’s Confidential
Information directly or indirectly, to any third party without the other
party’s prior written consent, except as otherwise permitted hereunder. Each
party will use reasonable measures to protect the confidentiality and value
of the other party’s Confidential Information. Notwithstanding any provision
of this Agreement, either party may disclose the other party’s Confidential
Information, in whole or in part (i) to its employees, officers, directors,
consultants and professional advisers (e.g., attorneys, auditors, financial
advisors, accountants and other professional representatives) who have a
need to know and are legally bound to keep such Confidential Information
confidential by confidentiality obligations or, in the case of professional
advisors, are bound by ethical duties to keep such Confidential Information
confidential consistent with the terms of this Agreement; and (ii) as
required by law (in which case each party will provide the other with prior
written notification thereof, will provide such party with the opportunity
to contest such disclosure, and will use its reasonable efforts to minimize
such disclosure to the extent permitted by applicable law). Each party
agrees to exercise due care in protecting the other party’s Confidential
Information from unauthorized use and disclosure. In the event of actual or
threatened breach of the provisions of this Section, the non-breaching party
will be entitled to seek immediate injunctive and other equitable relief,
without waiving any other rights or remedies available to it. Each party
will promptly notify the other in writing if it becomes aware of any
violations of the confidentiality obligations set forth in this Agreement.
3.2. As between the parties, Company will own and retain all right, title and
interest in and to (a) the Services, the Results, and all improvements,
enhancements or modifications thereto, whether or not developed based on
Customer’s suggestions or other feedback, (b) any software, applications,
inventions or other technology developed in connection with Services, and
(c) all intellectual property rights related to any of the foregoing.
3.3. Customer owns all right, title and interest in and to any Inputs it
provides. Customer hereby grants to Company a non-exclusive, worldwide,
royalty-free, fully paid up, sublicensable (directly and indirectly through
multiple tiers, including to other users of the Service who seek to use such
Inputs to verify or authenticate insurance coverage), nontransferable
(except as set forth in Section 10): (a) right and license, during the Term,
to copy, distribute, display, modify, create derivative works of and
otherwise use the Inputs to perform Company’s obligations under this
Agreement; and (b) perpetual, irrevocable right and license during and after
the Term to internally collect, use and analyze data and other information
relating to the Services and related systems and technologies (including,
without limitation, information concerning Inputs and data derived
therefrom), and Company will be free to (i) internally use such information
and data to improve and enhance the Services and for other development,
diagnostic and corrective purposes in connection with the Services and other
Company offerings, and (ii) disclose such data solely in aggregate or other
de-identified form in connection with its business. [Note: Please review
because as, drafted, this would not vest full ownership of insurance
documents with you, but it does give you extremely broad, perpetual
rights to use such data]
3.4. Customer may from time to time provide suggestions, comments for
enhancements or functionality or other feedback (“Feedback”) to Company with
respect to the Services. Company will have full discretion to determine
whether or not to proceed with the development of the requested
enhancements, new features or functionality. Customer hereby grants Company
a royalty-free, fully paid up, worldwide, transferable, sublicensable,
irrevocable, perpetual license to (a) copy, distribute, transmit, display,
perform, and create derivative works of the Feedback; and (b) use the
Feedback and/or any subject matter thereof, including without limitation,
the right to develop, manufacture, have manufactured, market, promote, sell,
have sold, offer for sale, have offered for sale, import, have imported,
rent, provide and/or lease products or services which practice or embody, or
are configured for use in practicing, the Feedback and/or any subject matter
of the Feedback. 4. PAYMENT OF FEES [TBD]
4.1. Customer will pay Company the fees described in the Order Form in
accordance with the terms herein and therein (the “Fees”). If Company
chooses to bill through an invoice, full payment for invoices issued in any
given month must be received by Company thirty (30) days after Customer’s
receipt thereof. Unpaid Fees are subject to a finance charge of 1.5% per
month, or the maximum permitted by law, whichever is lower. Customer will be
responsible for all taxes associated with Services other than taxes based on
Company’s net income. If any past due payment has not been received by
Company within ten (10) days from the time such payment is due, Company may
suspend access to the Services until such payment is made. At its
discretion, Company may increase the pricing stated on the Order Form for
any Renewal Term (as defined below) upon giving Customer at least sixty (60)
days’ notice prior to the end of the then-current term.
-
5. TERM AND TERMINATION
5.1. Subject to earlier termination as provided below, the term of this
Agreement will commence on the Effective Date and continue for the Initial
Term specified in the Order Form, and will automatically renewed for
additional periods of the same duration as the Initial Term (collectively,
the “Term”), unless either party provides the other with written notice of
non-renewal at least thirty (30) days’ prior to the end of the then-current
term. [TBD – Let’s discuss how term of agreement will work]
5.2. In addition to any other remedies it may have, either party may
terminate this Agreement upon written notice to the other party: (a) if the
other party breaches this Agreement and fails to cure such breach within
thirty (30) days of written notice thereof; (b) upon the institution by or
against the other party of insolvency, receivership or bankruptcy
proceedings; provided, that, if such proceeding is involuntary, it is not
dismissed within forty-five (45) days of its institution, (c) upon the other
party's making an assignment for the benefit of creditors, or (d) upon the
other party's dissolution or cessation of business without a named
successor. Customer may terminate this Agreement in the event that Company
updates the terms and conditions of this Agreement in accordance with
Section 9, and such updates are unacceptable to Customer.
5.3. Upon expiration or termination of this Agreement, all rights granted by
Company hereunder and all obligations of Company to provide the Services
will immediately terminate and Customer will cease use of the Services. Upon
expiration or termination of this Agreement, each party will return or
destroy all copies or other embodiments of the other party’s Confidential
Information (subject to Company’s rights under Section 3.3). The provisions
of Sections 3, 4, 5.3, 6.3, 7, 8 and 9 will survive any termination or
expiration of this Agreement.
-
6. WARRANTY AND DISCLAIMER
6.1. Each party represents and warrants to the other party that (a) such
party has the required power and authority to enter into this Agreement and
to perform its obligations hereunder; (b) the execution of this Agreement
and performance of its obligations thereunder do not and will not violate
any other agreement to which it is a party; and (c) this Agreement
constitutes a legal, valid and binding obligation when signed by both
parties.
6.2. Customer represents and warrants that (a) it has the legal authority and
all rights necessary to provide the Inputs to Company hereunder; (b) its
provision of the Inputs to Company hereunder does not and will not violate
or conflict with or result in a breach of any terms, conditions, duties or
obligations Customer has to any third party or any other rights of any third
party or any applicable law, rule or regulation; and (c) all Inputs are
accurate in all material respects and may be used by other users of the
Services for purposes of verifying or authenticating insurance coverage.
6.3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY HEREBY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND
TITLE. THE SERVICES ARE PROVIDED ON AN AS-IS BASIS, AND COMPANY DOES NOT
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER,
COMPANY MAKES NO WARRANTY AS TO THE RESULTS, INCLUDING THE ACCURACY THEREOF.
THE SERVICES AND THE RESULTS MAY CONTAIN THIRD PARTY COMPONENTS AND DATA,
AND COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS AND
WARRANTIES WITH RESPECT THERETO.
-
7. LIMITATION OF LIABILITY
7.1. EXCEPT FOR LIABILITY ARISING OUT OF (A) EITHER PARTY’S INDEMNIFICATION
OBLIGATIONS SET FORTH IN SECTION 8, (B) EITHER PARTY’S BREACH OF SECTION 3.1
OR (C) CUSTOMER’S BREACH OF SECTIONS 1 OR 2, NEITHER PARTY (NOR ANY OF ITS
SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES)
WILL BE LIABLE FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THIS AGREEMENT
OR ANY DELAY OR INABILITY TO USE THE SERVICES OR (II) ANY DAMAGES IN EXCESS
OF THE AGGREGATE FEES PAID (PLUS AMOUNTS PAYABLE) TO COMPANY HEREUNDER IN
THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE, IN
EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE,
AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
-
8. INDEMNIFICATION
8.1. Company shall defend Customer and the officers, directors, agents, and
employees of Customer (“Customer Indemnified Parties”) against any third
party claim, allegation or legal action (a “Claim”) arising from an
allegation that Customer’s authorized use of the Services infringes any
patent or copyright or misappropriates a trade secret of any third party.
Further, Company shall indemnify the Customer Indemnified Party against any
damages actually awarded or paid in connection therewith, including any
reasonable attorneys’ fees. Notwithstanding the foregoing, Company’s
indemnification obligation will not apply to claims to the extent arising
from (a) modification of the Services by any party other than Company
without Company’s express consent; (b) the combination, operation, or use of
the Services with other product(s), data or services where the Services
would not otherwise be infringing; or (c) unauthorized or improper use of
the Services. If the use of the Services by Customer has become, or in
Company’s opinion is likely to become, the subject of any claim of
infringement, Company may at its option and expense (i) procure for Customer
the right to continue using the Services as set forth hereunder, (ii)
replace or modify the Services to make the Services non-infringing so long
as the Services has at least equivalent functionality, (iii) substitute an
equivalent for the Services or (iv) if options (i)-(iii) are not reasonably
practicable, terminate this Agreement (subject to a refund of pre-paid fees
(if any) for the remaining part of the then-current term). This Section 8.1
states Company’s entire obligation and Customer’s sole remedies in
connection with any claim regarding the intellectual property rights of any
third party.
8.2. Customer shall defend Company and the officers, directors, agents, and
employees of Company (“Company Indemnified Parties”) against any Claims
arising from (a) any use or disclosure by Customer of the Services or the
Results in violation of this Agreement or (b) the exercise of any rights
granted to Company by Customer in or to Inputs in accordance with this
Agreement. Further, Customer shall indemnify the Company Indemnified Party
against any damages actually awarded or paid in connection therewith,
including any reasonable attorneys’ fees.
8.3. If a Customer Indemnified Party or a Company Indemnified Party (each, an
“Indemnified Party”) becomes aware of any matter it believes it should be
indemnified under Section 8.1 or Section 8.2, as applicable, involving any
claim, action, suit, investigation, arbitration or other proceeding against
the Indemnified Party by any third party (each an “Action”), the Indemnified
Party will give the other party (the “Indemnifying Party”) prompt written
notice of such Action. The Indemnified Party will cooperate, at the expense
of the Indemnifying Party, with the Indemnifying Party and its counsel in
the defense and the Indemnified Party will have the right to participate
fully, at its own expense, in the defense of such Action with counsel of its
own choosing. Any compromise or settlement of an Action will require the
prior written consent of both parties hereunder, such consent not to be
unreasonably withheld or delayed.
-
9. CHANGES TO THIS AGREEMENT
9.1. Company reserves the right, in its sole discretion, to revise, update,
change, modify, add to, supplement, or delete certain terms of this
Agreement for security, legal, best practice or regulatory reasons. While
Company will use commercially reasonable efforts to notify you of updates,
changes or modifications to this Agreement, such updates, changes, or
modifications will be effective with or, as applicable, without prior notice
to Customer. Customer may review the most recent version of this Agreement
by clicking on [LINK]. Customer is responsible for checking this Agreement
periodically for changes. If Customer deems any future changes to this
Agreement unacceptable or such changes cause Customer to no longer be in
compliance with this Agreement, Customer may terminate this Agreement in
accordance with Section 6 and must immediately cease use of the Services.
Customer’s continued use of the Services following any revision of this
Agreement by Company constitutes Customer’s complete and irrevocable
acceptance of any such changes and the updated Agreement.
-
10. MISCELLANEOUS
10.1. Company reserves the right to identify Customer as a customer of the
Services on Company’s website and in other marketing or promotional
communications. Neither party may assign this Agreement or assign or
delegate its rights or obligations under this Agreement without the other
party’s prior written consent; provided however, that either party may
assign this Agreement without such consent to an acquirer of or successor to
all or substantially all of its business or assets to which this Agreement
relates, whether by merger, sale of assets, sale of stock, reorganization or
otherwise. Any assignment or attempted assignment by either party otherwise
than in accordance with this Section shall be null and void. 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. Both parties agree that this Agreement 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. In the event of
a conflict between the Order Form and these Terms and Conditions, these
Terms and Conditions will govern unless the Order Form expressly amends a
provision herein. No agency, partnership, joint venture, or employment is
created as a result of this Agreement and a party does not have any
authority of any kind to bind the other party in any respect whatsoever. All
notices under this Agreement will be in writing and sent to the recipient’s
address on the Order Form (unless subsequently updated in writing) and will
be deemed to have been duly given when received, if personally delivered;
when receipt is electronically confirmed, if transmitted by facsimile or
email; the day after it is sent, if sent for next day delivery by recognized
overnight delivery service; and upon receipt, if sent by certified or
registered mail, return receipt requested. Each party shall be excused from
performance for any period during which, and to the extent that, it is
prevented from performing any obligation or service, in whole or in part, as
a result of a cause beyond its reasonable control and without its fault or
negligence, including, but not limited to, acts of God, acts of war,
epidemics, fire, communication line failures, power failures, earthquakes,
floods, blizzard, or other natural disasters (but excluding failure caused
by a party's financial condition or any internal labor problems (including
strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a
“Force Majeure Event”). Delays in performing obligations due to a Force
Majeure Event shall automatically extend the deadline for performing such
obligations for a period equal to the duration of such Force Majeure Event.
This Agreement shall be governed by the laws of the State of Texas without
regard to its conflict of laws provisions. [Note: We chose Texas law
because you are based in Texas, but we are not licensed in Texas. Please
let us know if you would like us to seek review of this Agreement under
TX law for enforceability of all provisions] For all disputes
relating to this Agreement, each party submits to the exclusive jurisdiction
of the state and federal courts located in Dallas County, Texas and waives
any jurisdictional, venue, or inconvenient forum objections to such
courts. [NTD: Let’s discuss litigation versus compulsory
mediation/arbitration – as set forth in your current SaaS template]
Customer acknowledges that any unauthorized use of the Services may
cause irreparable harm and injury to Company for which there is no adequate
remedy at law. In addition to all other remedies available under this
Agreement, at law or in equity, Customer agrees that Company may be entitled
to injunctive relief in the event Customer uses the Services in any way not
expressly permitted by this Agreement. THE PARTIES EACH IRREVOCABLY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR
IN EQUITY, ARISING FROM OR RELATED TO THIS AGREEMENT OR THE INTERPRETATION
THEREOF. Rx
