SECTION 1. SCOPE
1.1 General Scope. Subject to the terms and conditions of this Agreement, LifeLoop agrees to provide to the Client access to the Solution identified above.
1.2 License to Use the Solution. Subject to the terms of this Agreement and upon the payment of any applicable Fees, LifeLoop hereby grants Client, and Client hereby accepts, a limited, non-exclusive, non-transferrable, non-sublicenseable, and fully revocable right and license to: (i) access and use the features and functions of the Solution during the Term (as defined herein), solely by Client’s authorized employees, residents, and family members and close friends of the residents to the extent such family members and friends have been granted the applicable permissions to access the Solution by Client’s residents (the “Authorized Users”) and in accordance with this Agreement; (ii) to transmit content, data, information, or messages in connection with the day to day activities of Client’s residents (the “Client Data”) to and within the Solution; and (iii) a non-exclusive, non-transferrable, and non-sublicenseable right and license to use, and to make reasonable numbers of copies of the text and/or graphical documentation that describe the features and functions of the Solution (the “Documentation”). Client is not permitted to use the Solution in excess of the usage restrictions set forth in this Agreement, in any manner not expressly authorized by this Agreement, or by applicable law. All rights not specifically granted to Client are hereby reserved by LifeLoop. Notwithstanding the foregoing, LifeLoop may discontinue or alter any aspect of the Solution, remove any Client Data from the Solution, and restrict the availability of the Solution in LifeLoop’s sole discretion without prior notice or any liability. The Authorized Users will be required to accept LifeLoop’s End User Term of Service prior to first using the Solution.
1.3 License to Client Data. Client grants to LifeLoop a limited, non-exclusive, transferrable, perpetual, irrevocable, royalty-free, worldwide license for the term of this Agreement to copy, use, store, publicly display, publicly perform, and transmit the Client Data as set forth herein.
1.4 Availability of the Solution. LifeLoop warrants that, following commencement of Client’s use of the Solution, the Solution will be available to Client at least 99% of the time in each calendar month during the term of this Agreement, excluding the following (collectively, “Excused Down Time”) down time due to: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which LifeLoop may undertake from time to time; (c) malfunctions and other failures relating to the web sites or services of third parties affecting the Solution or the Client Data; or (d) causes beyond the control of LifeLoop, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks and network congestion or other failures. LifeLoop does not guarantee the timeliness or availability of the Solution.
1.6 Additional Obligations. Client shall reasonably cooperate with LifeLoop in order for LifeLoop to perform its obligations under this Agreement and/or applicable law. Client and LifeLoop shall be responsible for such additional obligations, if any, as set forth in this Agreement, including any attached Purchase Schedules.
SECTION 2. PURCHASE SCHEDULES
Purchase Schedules altering this purchase agreement may only be submitted by Client during the Term of this Agreement and will become effective upon acceptance in writing by LifeLoop. All Purchase Schedules shall be subject to the terms and conditions set forth in this Agreement. In the event any provisions contained on a Purchase Schedule expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of the Purchase Schedule shall govern to the extent of such conflict.
SECTION 3. FEES AND PAYMENT
3.1 Fees. Client shall pay to LifeLoop all fees in the amount, at the times and in the manner set forth in the first page of the Client Subscription Agreement.
3.2 Payment. If Client does not comply with the payment terms set forth in this Agreement, LifeLoop may pursue any or all of the remedies set forth in the applicable Purchase Schedule. Client agrees to pay interest at the rate equal to the lesser of 1.5% per month, or the maximum rate allowed by applicable law, on any outstanding balance, together with costs of collection, including attorneys’ fees and costs. Fees do not include any applicable taxes or duties, including without limitation, all use, sales, value added, excise, transfer, privilege, property and any other applicable taxes and duties. Client shall be responsible for all taxes and duties assessed with respect to the Solution provided under this Agreement excluding income taxes on profits which may be levied against LifeLoop.
3.3 Suspension of Access to the Solution. Failure of Client to fully pay any Fees when due or breach of Sections 6.3 and 6.4 shall be deemed a material breach and justify the immediate suspension of Client’s access to the Solution or, in LifeLoop’s discretion, the termination of this Agreement pursuant to Section 4.2 below. Any such suspension does not relieve Client from paying all amounts due LifeLoop under this Agreement for the remainder of the then applicable term of each outstanding Purchase Schedule.
SECTION 4. TERM & TERMINATION
4.1 Term. The Term of this Agreement shall be based upon client subscription agreement.
4.2 Termination With Cause. Either party may terminate this Agreement immediately upon written notice to the other party in the event that the other party: (a) materially breaches any provision of this Agreement and fails to cure such breach within fifteen (15) days after written notice of such breach; (b) is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due; or (c) dissolves or otherwise ceases operation of its business. Additionally, LifeLoop may immediately terminate this Agreement or the applicable Purchase Schedule upon written notice to Client and refund a pro rata portion of the applicable Fees paid by Client in the event (i) LifeLoop’ rights or licenses to deliver any applicable content with which the Client Data that are to be served via the Solution are terminated or restricted for any reason; or (ii) LifeLoop ceases to operate the Solution for any reason.
4.3 Consequences Upon Termination of this Agreement. Upon the termination or expiration of this Agreement for any reason, (a) LifeLoop’ obligations to the Client shall immediately and automatically terminate; (b) LifeLoop shall return to Client all the Client Data provided to LifeLoop, and Client shall return any property, equipment and materials provided to the Client by LifeLoop (whether modified or unmodified); and (c) the Client shall immediately pay to LifeLoop any Fees outstanding pursuant to this Agreement.
SECTION 5. LIMITED WARRANTY, DISCLAIMER & LIMITATION OF LIABILITY
5.1 Warranties. Each party represents and warrants to the other party that it has full power and authority to enter into and perform its obligations under this Agreement. The Client represents and warrants to LifeLoop that (a) the Client Data shall not violate any applicable law or infringe upon or violate the rights of any person, and shall not contain any Prohibited Content (defined below); and (b) Client owns the Client Data and all intellectual property rights therein, or has all necessary rights to grant the license to LifeLoop herein and authorize the worldwide copying, display and transmission on the Solution.
5.2 Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, THE SOLUTION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND LIFELOOP HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING THERETO, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TIMELINESS. LIFELOOP DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES LIFELOOP MAKE ANY WARRANTY OF ANY KIND AS TO THE PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED OR GENERATED BY THE SOLUTION.
5.3 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL LIFELOOP BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE CLIENT DATA, THE SOLUTION OR THE INTERNET GENERALLY, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF LIFELOOP WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT LIFELOOP FAILS TO PROVIDE THE SOLUTION IN ACCORDANCE WITH THE APPLICABLE PURCHASE SCHEDULE, THE SOLE LIABILITY OF LIFELOOP TO CLIENT SHALL BE LIMITED, AT LIFELOOP’S SOLE OPTION AND DISCRETION, TO (I) A PRO RATA REFUND OF THE FEES PAID UNDER THE APPLICABLE PURCHASE SCHEDULE; OR (II) EXTENSION OF THE TERM OF THE RELEVANT PURCHASE SCHEDULE. IN THE EVENT THAT LIFELOOP IS FOUND LIABLE FOR DIRECT DAMAGES, IN NO EVENT SHALL LIFELOOP’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED AN AMOUNT EQUAL TO ONE-HALF OF THE TOTAL FEES PAID BY CLIENT TO LIFELOOP UNDER THE APPLICABLE PURCHASE SCHEDULE.
5.4 Indemnification. Client shall indemnify, defend and hold LifeLoop, and its officers, members, directors, employees, agents and affiliates (each, an “LifeLoop Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees, resulting from or arising out of any claim, suit, action, arbitration or proceeding brought or threatened by a third party against any LifeLoop Indemnified Party relating to: (a) a breach or alleged breach by Client of any of its representations, warranties, covenants or obligations hereunder; (b) any allegation that any Client Data infringes or misappropriates any intellectual property rights of any third party; or (c) any negligence or willful misconduct of Client or the Authorized Users. LifeLoop agrees that Client shall have sole and exclusive control over the defense of any such third party claim; provided, however, LifeLoop shall have the right to obtain its own counsel at its own cost and expense. Client shall not acquiesce in any judgment or enter into any settlement that adversely affects the rights or interests of any LifeLoop Indemnified Party without prior written consent of such LifeLoop Indemnified Party (not to be unreasonably withheld). The LifeLoop Indemnified Party shall notify Client of any such claim of which it becomes aware and shall (i) at Client’s expense, provide reasonable cooperation to Client in connection with the defense of any such claim; and (ii) at the LifeLoop Indemnified Party’s expense, be entitled to participate in the defense of any such claim.
SECTION 6. OWNERSHIP, PROHIBITED CONTENT & USAGE RESTRICTIONS
6.1 Client Data Ownership. As between the parties, Client shall retain all right, title and interest in and to the Client Data provided to LifeLoop by Client. LifeLoop hereby acknowledges and agrees that except as set forth herein, LifeLoop has no right, title or interest in or to the Client Data provided to LifeLoop by Client.
6.2 LifeLoop Ownership. As between the parties, LifeLoop shall retain all right, title, and interest in and to any of LifeLoop’s materials and content, the Solution and any content displayed thereon, all of LifeLoop’s trade names, trademarks and service marks, and all legally protectable elements, derivative works, modifications and enhancements to the foregoing. Client hereby acknowledges and agrees that except as expressly set forth herein, Client has no right, title, or interest in or to any of the foregoing.
6.3 Prohibited Content. LifeLoop reserves the right, at any time and in LifeLoop’ sole discretion, to refuse to provide the Solution with respect to any Client Data that: (a) fail to conform to the policies set forth by LifeLoop; (b) may constitute, cause or result in any violation of applicable law; and/or (c) contain or alleged to contain any content that is or promotes or links to products, services, content, or any other materials that are: (i) sexually explicit; (ii) related to tobacco, illicit drugs, gambling (other than legal lotteries), firearms, or ammunition; (iii) defamatory, libelous or slanderous; (iv) obscene, threatening, harassing, hateful or racially, ethnically, religiously or otherwise offensive; (v) denigrating to particular group based on gender, race, creed, religion, sexual preference or handicap; or (vi) unlawful or that encourages conduct that would be a criminal offense (collectively, “Prohibited Content”). LifeLoop shall have the right to remove any Prohibited Content or any other content which LifeLoop reasonably determines conflicts with, interferes with or is detrimental to the Solution In the event LifeLoop so notifies Client, Client shall thereafter remove the objectionable material as soon as technically feasible.
6.4 Usage Restrictions. Client shall not reverse engineer, reverse compile, or disassemble, copy, sell, license, share or otherwise transfer the license(s) and permissions(s) granted to use the Solution under this Agreement to any other person(s) or transmit or upload any Prohibited Content to or through the Solution, directly or indirectly. In addition, Client shall not copy, sell, license, share, or otherwise transfer any email addresses or any other contact information made available to Client, in any manner, for the purposes of distributing or otherwise facilitating mass mailings of unsolicited information to any person(s).
6.5 Reserved Rights. All rights not specifically granted to Client hereunder are reserved by LifeLoop. Nothing herein shall limit or restrict LifeLoop or its licensors from otherwise using the Solution, including, without limitation, modifying, promoting, providing, publicly displaying, distributing, licensing, sublicensing, selling Client Data that is not personally identifiable to any particular resident or Authorized User, or sponsorships via the Solution to other parties and in any medium now known or hereafter developed in its sole discretion.
6.6 Confidential Information. During the course of performance of this Agreement, either party may disclose to the other certain Confidential Information (as defined below). The receiving party shall maintain the secrecy of, and shall not use or disclose, all such Confidential Information disclosed to it pursuant to this Agreement except for such purposes as set forth in this Agreement. All files, lists, records, documents, drawings, documentation, end-user materials, specifications, equipment and computer programs that incorporate or refer to any Confidential Information shall be returned, deleted or destroyed by the receiving party promptly upon termination or expiration of this Agreement. As used herein, “Confidential Information” shall mean (a) the terms and conditions of this Agreement or any other agreement executed between the parties; (b) all nonpublic information concerning the business, technology, products, services, internal structure and strategies of the disclosing party, specifically including, without limitation, software, documentation, end-user materials, LifeLoop intellectual property, proposals, designs, concepts, methodologies, inventions, source or object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how”, procedures, financial information or licensing policies; and (c) any other information clearly labeled by the disclosing party in writing as “confidential” prior to its disclosure. The following information will not be considered Confidential Information: (i) information which was in the public domain prior to its disclosure; (ii) information which becomes part of the public domain by any means other than through violation of this Agreement; (iii) information independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (iv) information solely to the extent produced in compliance with any law, court or administrative order; provided, however, that the receiving party gives the disclosing party reasonable notice as allowed by law that such Confidential Information is being sought by a third party, so as to afford the disclosing party the opportunity to limit or prevent such disclosure.
6.7 Data Ownership. Any and all information provided to LifeLoop by or collected by LifeLoop from individual web users via the Solution shall be owned by LifeLoop.
SECTION 7. GENERAL PROVISIONS
7.1 Relationship of the Parties. The relationship of LifeLoop and Client established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any joint venture or other relationship. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, to make or give any agreement, statement, representation, warranty, or other commitment on behalf of such party, to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of such party, or to transfer, release, or waive any right, title, or interest of such party.
7.2 HIPAA. In the event such becomes deemed necessary by either party, the parties agree to negotiate a Business Associate Agreement in good faith containing such provisions as required by HIPAA. Client acknowledges that compliance with HIPAA, HITECH, and any other privacy and security rule is not determined solely, or even primarily, by Products, Services, or software solutions, but is a process that involves Client’s systems, facilities, practices, and employees, which are entirely out of the control of LifeLoop.
7.3 Employee Users. Client is exclusively and entirely responsible for their employees’ use of the Solution and the use of any other users that Client authorizes.. Client has sole responsibility for deleting employees’ accounts upon that individuals’ resignation or termination from Client.
7.2 Entire Agreement; Amendment. This Agreement, including any Purchase Schedules, exhibits and other schedules or documents attached hereto or referenced herein, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment or modification of this Agreement or any Purchase Schedule, exhibit, or schedule shall be effective unless in writing and signed by both parties. The terms and conditions of any inconsistent present or future purchase order submitted by Client shall not alter the terms of this Agreement unless expressly consented to in writing by LifeLoop. No use of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement.
7.3 Multiple Counterparts. This Agreement may be executed in counterparts and the parties agree that this Agreement and any Purchase Schedule, exhibit or schedule may be delivered by facsimile or electronic signature.
7.4 Severability; Survival. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement. The provisions of Sections 3.2, 4.3, 5, 6 and 7 shall survive the termination or expiration of this Agreement and remain in full force and effect.
7.5 Governing Law; Venue. This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Nebraska, without reference to its conflicts or choice of law principles. The parties agree that the sole and exclusive jurisdiction and venue for any and all disputes arising under this Agreement shall be in any trial court located in or having jurisdiction over Lancaster County, Nebraska. Each of the parties hereby irrevocably submits and consents to the personal jurisdiction of the above-named courts.
7.6 Notices. Any notice required hereunder shall be delivered by hand, by courier service, or by U.S. mail to the address provided by the party to be notified. Either party may change the referenced addresses and contact information by written notice to the other in accordance with this section. Notices shall be effective: (a) as of the date personally delivered if by hand or (b) for notices sent by U.S. mail, five (5) business days after the postmark date, or (c) upon receipt if sent by courier service. Notices also may be delivered by electronic means (but must be confirmed in writing as above) and notices so delivered shall be effective upon actual receipt of the electronic transmission.
7.7 Waiver. Except as specifically provided in a written waiver signed by a duly authorized representative of the party seeking enforcement, the failure to enforce or the waiver of any term of this Agreement shall not constitute the waiver of such term at any time or in any circumstances and shall not give rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of this Agreement.
7.8 Assignments and Benefit. Client may not assign this Agreement without the prior written consent of LifeLoop. LifeLoop may assign this Agreement in connection with the sale, merger, reorganization or disposition of the business operations relating to the Solution. Client may not resell, assign, trade, exchange, barter, broker or otherwise transfer any of its rights under this Agreement or any Purchase Schedule without the prior written consent of LifeLoop, and any attempt to resell, assign, trade, exchange, barter, broker or transfer any of its rights in violation hereof shall result in the immediate termination of this Agreement. This Agreement shall be binding upon and shall inure to the benefit of Client and LifeLoop and their respective successors and permitted assigns, subject to the other provisions of this section. LifeLoop may subcontract its obligations relating to providing the Solution to third parties and service providers.
7.10 Third Parties. Nothing in this Agreement, express or implied, shall create or confer upon any person or entity not a named party to this Agreement any legal or equitable rights, remedies, liabilities or claims with respect to this Agreement, except as expressly provided herein.