TSOLife Software License Agreement
Last Updated 7/19/2018
1. The Company’s Responsibilities
1.1 Services Commitment. The Company will: (i) make its cloud-based electronic legacy preservation services (the “Services”), as ordered by Customer pursuant to a Quote/Order Form which shall be deemed part of and subject to this MSA, available to Customer and Customer’s Users; (ii) make available “for fee” consulting and professional services as set out in separate PS Quotes/Order Forms and governed by the Company’s Professional Services Addendum attached to this MSA as Schedule 1; and (iii) provide the Services in accordance with applicable laws and government regulations. “Users” means individuals who are authorized by Customer to use and access the Services and who have been supplied user identifications and passwords. Users may include, but are not limited to, Customer’s employees, consultants, contractors, and agents, including qualified medical professionals, as determined and monitored by Customer.
1.2 Subscription. Customer acknowledges the minimum term of a subscription is one month, during which Customer cannot cancel its subscription, following which the subscription will automatically renew for successive periods of one (1) month.
1.3 Mobile Applications. Customer may pursuant to a Quote/Order Form order the Company’s mobile applications, which may be downloaded, installed and used on Users’ mobile devices. Customer acknowledges mobile applications require Users’ agreement to an end user license agreement in order to download, install and use such applications.
2. Customer’s Use of the Services
2.1 Customer’s Responsibilities. Customer is solely responsible for: (i) Customer’s and Customers’ Users’ compliance with this MSA and all applicable schedules and addenda; (ii) managing Customer’s Users' identity and password combinations for use of and access to the Services; (iii) using commercially reasonable efforts to prevent password theft or loss, or unauthorized access to or use of the Services; (iv) notifying the Company promptly of any password theft, security breach or other unauthorized access to or use of the Services; (v) using the Services only in accordance with any documentation provided by the Company and all applicable local, state or provincial, federal, and/or international laws, rules and government regulations relating to Customer’s and Customers’ Users’ use of the Services and Customer’s provision of health care and medical services to Customer’s residents; (vi) procuring and maintaining the network connections which allow Customer’s Users to access and use the Services; and (vii) ensuring Customer’s Users follow login procedures which support such protocols.
2.2 Prohibited Actions. Customer shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, lease, timeshare or transfer the Services except as set forth in Sections 5.1; (iii) use the Services to upload, post, distribute, link to, publish, reproduce, engage in, disseminate, or transmit any of the following: (a) malicious code, (b) illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate, or objectionable information or communications, (c) content or data which would falsely represent Customer’s or any User’s or any resident’s identity, (d) content or data which constitutes a breach of any individual’s privacy, (e) advertisements or any other unsolicited communications, or (f) any information, software, or content which is not legally Customer’s and may be protected by copyright or other proprietary rights, or derivative works, without permission from the copyright owner or intellectual property rights owner; (iv) interfere with or disrupt the integrity or performance of the Services or third party data; (v) attempt to gain access to any other entity’s Services, or systems, networks, or related data which Customer does not have a legal right to access; (vi) copy, duplicate, reproduce, frame, or mirror any part of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes; (vii) de-construct or reverse engineer the Services; (viii) access the Services if Customer has a business interest in, is creating or developing, or is planning the creation or development of, a legacy preservation technology service, product, or system in any way competitive with the Services; (ix) copy any features, functions, or graphics of the Services; or (x) access the Services for the purpose of monitoring availability, performance, functionality, or for any other benchmarking or competitive purpose.
2.3 Beta Services. From time to time the Company may invite Customer to access and use services not generally available (“Beta Services”). Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services shall be designated clearly as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. The Company may discontinue Beta Services at any time in its sole discretion and may never make them generally available. The Company shall have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. Third Party Products
3.1 Embedded Technology. The Company may license technology from a third party and embed it within its Services. Customer consents to the use of Embedded Technology within the Services. In order to subscribe to use certain Embedded Technology, Customer may be required to agree to additional terms and conditions specific to that Embedded Technology. If the functions of Embedded Technology require a third party to access protected health information (“PHI”), the Company requires the Embedded Technology provider to enter into a business associate agreement (“BAA”).
4. Fees and Payments
4.1 Fees. Customer shall pay all fees specified in Order Forms and associated invoices. Except as otherwise specified in an Order Form: (i) fees are based on the Services as set out in the Order Form for the Resident Capacities specified and not based upon actual usage of any particular application or by any particular facility; and (ii) payment obligations are non-cancelable and fees paid are non-refundable. Fees specified in an Order Form shall be effective for one year after the Effective Date, following which the Company may increase fees no more frequently than once annually upon sixty (60) days’ notice to Customer. Each Order Form shall expire and terminate on the date that is one year after the date of the Order Form if the Services ordered therein have not been activated and Customer will be issued a new Quote/Order Form for the Services at the then-applicable price.
4.2 Resident Capacity. Unless otherwise specified, Prices presented in an Order Form are calculated with reference to Customer’s published licensed bed count (“Resident Capacity”). Customer shall promptly notify the Company by email addressed to 'email@example.com' of any increases in Customer’s Resident Capacity and shall pay all adjusted fees as calculated by the Company. Customer shall annually or upon request provide the Company with a copy of state- or provincially- issued documents setting forth Customer’s Resident Capacity. If Customer’s actual Resident Capacity exceeds the Resident Capacity it has reported to the Company, Customer shall pay all charges in arrears and adjusted subscription fees during the remainder of the Term resulting from such unreported increase. Decreases in Resident Capacity shall be similarly reported to the Company and shall entitle Customer to a decrease in fees payable following the date such decrease is reported. The Company shall maintain, at no charge, records of Customer’s residents who have been discharged or added to a waiting list.
4.3 Transferred Facilities. Where Customer proposes to sell or otherwise transfer one or more facilities or all or substantially all of the assets of such facilities (each, a “Transfer”), Customer agrees to provide the Company with a minimum of thirty (30) days’ written notice of any such proposed Transfer (whether or not such Transfer purports to include an assignment of this MSA). Customer agrees to inform the proposed buyer of this MSA and any overdue amounts hereunder, and to pay any such overdue amounts in full prior to completing the Transfer. Customer acknowledges and agrees that the failure to notify the Company of a Transfer and pay all overdue amounts shall be deemed to be fraud and a breach of this MSA and Customer shall be liable for all damages, including overdue amounts (which shall automatically be converted into a lien), the Company’s attorney fees, and any and all costs to enforce this Section 4.3 together with any other damages that may be collectible under the law. If the buyer in a Transfer intends to continue to access and use the Services, Customer shall provide the Company with written authorization for the transfer of Data, including its Resident Record Data, to the buyer. Customer agrees that the Company’s provision of transition services may be billable including in connection with the transfer of ownership of one or more of Customer’s facilities. If Customer is the buyer in a Transfer: (i) Customer agrees to assume and pay any overdue amounts in respect of the transferred facilities; and (ii) if Customer requests a transfer Data in respect of the transferred facilities, Customer agrees to waive any right to, or claim of, successor liability as a defense to or release from liability of any amounts then due and owing to the Company by the seller at the time of the Transfer, and further that the receipt of such Data from the Company will be deemed a mere continuation, de facto merger and/or continuation of enterprise.
4.4 Invoicing and Payment. The Company shall invoice Customer in accordance with the relevant Quote/Order Form. Unless otherwise stated in the Quote/Order Form, invoiced charges are due thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information and notifying the Company of any changes to such information.
4.5 Overdue Charges. The Company may charge interest on overdue amounts at the rate set out in the relevant invoice. Customer acknowledges and agrees that the Company may register a security interest in any amount that is overdue by 60 days or more and covenants to do, execute and deliver all such things, documents, agreements and assurances requested by the Company to such security is valid, enforceable and perfected. If Customer has failed to pay any amounts when due, the Company may suspend the Company’s provision of the Services to Customer, and may, upon reasonable notice, terminate this MSA for cause and cease its provision of the Services. The notice of termination will set out the processes, procedures and formats by which Customer’s Data will be made available to Customer.
4.6 Fee Disputes. If Customer reasonably and in good faith disputes any fees, Customer must provide the Company with written notice of such dispute within ninety (90) days of the applicable invoice date, after which period Customer’s right of dispute expires. Customer must cooperate diligently with the Company to resolve the dispute and pay all undisputed fees when due. The Company will not exercise its rights under Section 4.5 in connection with fees disputed pursuant to this Section 4.6.
4.7 Taxes. All quoted prices exclude federal and state or provincial sales, excise, use, goods and services, and value added or similar taxes (“Taxes”). Customer acknowledges it shall be responsible for the payment of any such Taxes to the Company (other than those based on the Company’s net income) unless it provides a valid tax exemption certificate or direct pay permit acceptable to taxing authorities. In the event the Company is assessed Taxes, interest and penalty by any taxing authority, Customer agrees to reimburse the Company for any such Taxes, including any interest or penalty assessed thereon.
5. Data and Proprietary Rights
5.1 Customer’s Right to Use and Access the Services. The Company grants Customer a limited, non-exclusive, non-transferable (except pursuant to this Section 5.1) right to access and use, and permit Customer’s Users to access and use the Services during the Term. Subject to the limited rights granted to Customer under this MSA, the Company reserves all rights, title and interest in and to the Services, including all related intellectual property rights to the underlying software and any third party products and Integrated Services.
5.2 Ownership of Customer’s Data and License by Customer to Host Customer’s Data. Except as provided in this MSA, Customer acknowledge and agrees that the Company: (i) owns the Customer’s Data and any intellectual property rights therein (excluding any PHI) and (ii) the Customer shall acquire no right, title, or interest in the Company’s display of such Data. Any PHI will remain the property of the patient and will be kept in a HIPAA and HITECH compliant manner and will only be provided in a HIPAA compliant manner.
5.3 Suggestions. Customer grants the Company a royalty-free, worldwide, irrevocable, and perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback relating to the Services provided by Customer and Customer’s Users.
6.1 Definition of Confidential Information. "Confidential Information" means all confidential information disclosed by a party to the other party, whether orally or in writing, which is designated as confidential or which reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Customer’s Data, the terms and conditions of all Quotes/Order Forms, business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information (other than Resident Record Data) does not include any information which: (i) is or becomes generally known to the public without breach of any obligation owed to either party; (ii) was known to the receiving party prior to its disclosure without breach of any obligation owed to either party; (iii) is received from a third party without breach of any obligation owed to either party; or (iv) was independently developed by the receiving party. Customer may discuss with another party, in general terms, the types of services the Company provides and Customer’s opinion of the Company’s provision of these services.
6.2 Protection of Confidential Information. The receiving party shall use the same degree of care to protect Confidential Information which it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall: (i) not use any Confidential Information for any purpose outside the scope of this MSA; and (ii) limit access to Confidential Information to those of its and its affiliates' employees, contractors and agents who need such access for purposes consistent with this MSA and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those set forth in this MSA. Unless legally compelled to do so, neither party shall disclose the other party’s Confidential Information to any third party (other than its affiliates, contractors, agents and their respective legal counsel) without the other party's prior written consent.
6.3 Confidentiality of the Company’s Services. Despite any other provision of this MSA, the Customer acknowledges that the software, processes and systems, including but not limited to the database schema, layout of screens, underlying business process and integrations that enable the Services embody valuable trade secrets proprietary to the Company. Therefore, the Customer shall take reasonable measures to protect the software and the systems from unauthorized access. The Customer will not provide access to the Services accept as provided pursuant to this MSA nor shall it disassemble or decompile the software that enable the Services for any purpose.
6.4 Injunctive Relief. The parties agree that any breach of any provision of this MSA regarding confidentiality or protection of the Company’s proprietary rights would constitute irreparable harm and that the Company will be entitled to specific performance and/or injunctive relief in addition to other remedies at law or in equity.
7. Warranties, Acknowledgments and Disclaimers
7.1 Customer’s Warranties. Customer warrants that: (i) it has validly entered into this MSA and has the legal power to do so; and (ii) its subscription for the Services is neither contingent upon the delivery of any future functionality or features nor dependent on any oral or written comments made by the Company regarding any future functionality or features.
7.2 Customer’s Acknowledgments. Customer understands, acknowledges and agrees that: (i) the Company has made no representations or warranties that use of the Services will ensure Customer’s compliance with all applicable laws, rules, and regulations and that the Company does not warrant compliance with such laws, rules, and regulations through Customer’s use of the Services; (ii) Customer assumes all risks associated with Customer’s use of the Services in relation to applicable laws, rules, and regulations; (iii) the Services may not be appropriate or available for use in all countries; (iv) Customer is prohibited from accessing materials from countries or states where the contents of such materials are illegal; (v) Customer accepts all updates to the Services, including tools, utilities, improvements, or general updates to improve and enhance the features and performance of the Services; (vi) the Services are cloud-based services intended to deliver non- critical, non-emergency services; (vii) the Services are dependent on a number of factors beyond the Company’s control, including but not limited to, the operation of hardware and network services provided by third parties; (viii) the Services are not a substitute for any medical facility’s current systems of administering and safeguarding medical treatment and/or medicine; (ix) there may be occasional communication failures or delays in the delivery or receipt of properly sent communications which are beyond the Company’s control; and (x) Customer does not expect the Services to perform at the same level of performance and/or reliability reasonably expected from medical devices used in the delivery of critical medical care.
7.3 Warranties. The Company warrants that: (i) it has validly entered into this MSA and has the legal power to do so; (ii) the Services do not infringe or misappropriate the intellectual property rights of any third party; (iii) it is the owner of the Services and has procured the appropriate licenses so that Customer has the right to use any embedded third-party software; (iv) to the Company’s knowledge, there is no claim or proceeding, pending or threatened, alleging that any of the Company’s software or equipment infringes or misappropriates the intellectual property rights of any third party; (v) there is no outstanding litigation, arbitration, or other dispute to which the Company is a party which, if decided unfavorably to the Company, would reasonably be expected to have a material adverse effect on the Company’s ability to fulfill its obligations under this MSA; (vi) the Services are duly protected with “up-to-date” and commercially reasonable anti-virus and anti-intrusion security software to prevent bugs, viruses, interruptions, errors, theft, destruction, and corruption which would affect the Services; and (vii) the functionality of the Services shall not be decreased materially during the Term. The Company will use commercially reasonable efforts to achieve, in all material respects, the functionality described in any documentation the Company may provide and, if the Company is unable to achieve such functionality, Customer’s sole and exclusive remedy shall be to terminate such Services and the MSA.
7.4 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. EXCEPT AS DESCRIBED IN THIS MSA, THE SERVICES ARE PROVIDED "AS IS" AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, THE COMPANY’S AFFILIATES AND THE COMPANY’S THIRD-PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE AND ANY WARRANTIES RELATED TO TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. THE COMPANY DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT, OR DATA TRANSMITTED THROUGH THE SERVICES. THE COMPANY AND ITS SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICES SHALL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS, INCLUDING STATUTES OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO: (I) HIPAA, INCLUSIVE OF THE PRIVACY, SECURITY, BREACH NOTIFICATION, AND ENFORCEMENT RULES AT 45 C.F.R. PARTS 160 AND 164; (II) THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (TITLE XIII OF THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009) AND ANY AMENDMENTS OR IMPLEMENTING REGULATIONS; (III) THE GRAMM-LEACH-BLILEY ACT OF 1999; (IV) THE SARBANES-OXLEY ACT OF 2002; AND (V) OTHER APPLICABLE FEDERAL, PROVINCIAL (INCLUDING THE PERSONAL HEALTH INFORMATION PROTECTION ACT, 2004 IN ONTARIO) OR STATE STATUTES OR REGULATIONS. CUSTOMER HAS SOLE RESPONSIBILITY FOR ENSURING THAT CUSTOMER’S USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
8.1 Indemnification by the Company. The Company will indemnify, defend and hold harmless Customer against any claims, liabilities, demands, suits, actions, proceedings, fines, expenses, penalties, judgments, or costs (collectively, "Claims") made or brought against Customer by a third party alleging that Customer’s use of the Services as permitted under this MSA infringes or misappropriates the intellectual property rights of a third party (a "Claim Against Customer"). The Company will indemnify, defend, and hold harmless Customer against any and all resulting direct damages, attorneys’ fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under, a court-approved settlement of a Claim Against Customer, provided that Customer must: (a) promptly give the Company written notice of the Claim Against Customer; (b) give the Company sole control of the defense and settlement of the Claim Against Customer (provided that the Company may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (c) provide the Company all reasonable assistance, at the Company’s expense. In the event of a Claim Against Customer, or if the Company reasonably believes the Services may infringe or misappropriate the rights of any third party, the Company may in its discretion and at no cost to Customer: (i) modify the Services so that they no longer infringe or misappropriate, without breaching the Company’s warranties; (ii) obtain a license for Customer’s continued use of the Services in accordance with this MSA; or (iii) terminate this MSA in accordance with its termination provisions.
8.2 Indemnification by Customer. Customer will indemnify, defend and hold harmless the Company, its affiliates, the Third Parties referred to in Section 3 and the suppliers contracted by the Company to deliver all or part of the Services (“Indemnitees”) against any Claims made or brought against an Indemnitee by a third party alleging personal injury, tort, medical malpractice, or other acts, errors, or omissions in the delivery of medical care or medical information or which otherwise arise out of, or are in any way connected with, Customer’s Data, Customer’s and Customer’s Users’ access to or use of the Services, Customer’s or Customer’s Users’ negligent or wrongful act(s), and/or Customer’s or Customer’s Users’ violation of relevant and/or applicable law (a "Claim Against the Company"). Customer will indemnify, defend, and hold harmless the Indemnitees from and against any and all resulting losses, damages, expenses (including reasonable attorneys’ and expert fees), whether or not such Claims Against the Company were foreseeable provided that the Company must: (a) promptly give Customer written notice of the Claim Against the Company; (b) give Customer sole control of the defense and settlement of the Claim Against the Company (provided that Customer may not settle any Claim Against the Company unless the settlement unconditionally releases the Company of all liability); and (c) provide Customer all reasonable assistance, at Customer’s expense.
8.3 Indemnity Exclusions. The indemnification obligations set forth in Section 8.1 do not apply to Claims to the extent that they arise from: (a) Customer’s use of the Services in violation of this MSA or applicable law; (b) Customer’s negligent acts or omissions; (c) Customer’s use of the Services after the Company notifies Customer to discontinue use because of an infringement claim; or (d) modifications to the Services or use of the Services in combination with any software, application or service not made or provided by the Company. The indemnification obligations set forth in Section 8.2 do not apply to Claims to the extent Customer is prohibited by statute or regulation from providing them.
8.4 Exclusive Remedy. This Section sets forth the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.
9. Limitation of Liability
9.1 No Responsibility. The Company shall not assume responsibility for: (i) any compromise, loss, delay, alteration, or interception of Customer’s Data during the transmission of any Data across computer networks or telecommunication facilities (including but not limited to the internet) which are not owned or operated by the Company; or (ii) the reliability or performance of any connections, computer networks, or telecommunications facilities (including but not limited to the internet) which are not owned or operated by the Company.
9.2 EXCLUSION OF DAMAGES. EXCEPT FOR INDEMNITIES AND OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION EXPRESSLY PROVIDED BY THIS MSA, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING THE DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY.
9.3 EXCEPTIONS. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN SECTION 9.2 DO NOT APPLY TO: (A) INDEMNIFICATION OBLIGATIONS; (B) LIABILITY RESULTING FROM THE GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT OF A PARTY; OR (C) DAMAGES OCCASIONED BY IMPROPER OR WRONGFUL TERMINATION OF THIS MSA OR ABANDONMENT OF ALL OR SUBSTANTIALLY ALL OF THE WORK REQUIRED TO PERFORM THE SERVICES.
9.4 LIABILITY CAP. Except for the Company’s indemnity expressly provided for by this MSA and the Company’s confidentiality obligations, in no event will the Company’s aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, exceed the total amount of payments paid by the Customer to the Company pursuant to this MSA during the six (6) months immediately preceding the claim.
10. Term and Termination
10.1 Term of the MSA. This MSA shall be effective for a period commencing on the date Customer signs it (the “Effective Date”) and continuing until all subscriptions and services purchased hereunder have expired or been terminated.
10.2 Term of Subscriptions. The term of Customer’s subscription for the Services may be set forth in Customer’s Quote/Order Form (the “Initial Term”); otherwise the term of subscription shall be yearly with automatic renewals. After any Initial Term, Customer’s subscription for the Services shall automatically renew on a yearly basis unless otherwise terminated in accordance with this Section 10.
10.3 Termination for Cause. Either party may terminate this MSA for cause: (i) upon thirty (30) days’ prior written notice to the other party of a material breach, if such breach remains uncured at the expiration of such notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
10.4 Termination for Convenience by Customer. For the first sixty (60) days of the Initial Term, the Customer may terminate this MSA by providing thirty (30) day'. After the Initial Term, Customer may terminate the MSA at any time by providing thirty (30) days’ prior written notice to the Company.
10.5 Termination for Convenience by the Company. Except for any specified Initial Term, the Company may terminate the MSA at any time by providing Customer with ninety (90) days’ prior written notice.
10.6 Effect of Termination. Upon termination of this MSA, all rights and obligations of the parties will automatically terminate except for those set forth in this Section 10.6 and Section 10.7, and the Company shall not have any liability for the cessation of the Services or Customer’s discontinued access to or use of the Services. Customer shall receive a refund of any prepaid fees for Services not yet rendered upon termination of this MSA. Upon the provision to Customer of this data, the Company shall have no obligation to maintain or provide Customer with any of Customer’s Data and may then, in accordance with applicable law, delete Customer’s PHI in the Company’s systems or otherwise in the Company’s possession or under its control. Termination of this MSA shall automatically trigger termination of Customer’s schedules and other addenda incorporated in the MSA by reference.
10.7 Provisions Surviving Termination. Section 1.4 (The Company’s Protection of Customer’s Resident Record Data, with respect to any such PHI which remains in the Company’s possession), Section 4 (Fees and Payment), Section 5 (Data and Proprietary Rights), Section 6 (Confidentiality), Section 7.4 (the Company’s Disclaimer of Representations and Warranties), Section 8 (Indemnities), Section 9 (Limitation of Liability), Section 10.6 (Effect of Termination), Section 12 (Notices), and Section 13 (General Provisions) shall survive the termination or expiration of this MSA.
11.1 Any notices required or permitted to be given under this MSA will be given in writing and will be delivered (i) in person, (ii) by certified mail postage prepaid, return receipt requested, or (iii) by commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices will be addressed to the address of the party as designated by Customer on the Acceptance Page of this MSA, on any Quote/Order Form, or as provided in the BAA or via the Services.
12. General Provisions
12.1 Governing Law and Jurisdiction. This MSA shall be governed by the State of Florida and the federal laws of the United States of America without regard to its conflicts of laws provisions. To resolve any legal dispute arising from this MSA, Customer agrees to the exclusive jurisdiction of the State of Florida.
12.2 Entire Agreement. This MSA, including all Order Forms, exhibits, schedules and addenda attached or incorporated by reference, constitutes the entire agreement between Customer and the Company and supersedes all prior and contemporaneous agreements, proposals, or representations, whether written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this MSA and any exhibit, schedule, addendum or Order Form, the order of precedence shall be: (1) the applicable Quote/Order Form and any addenda thereto, (2) the applicable exhibit, schedule or addendum to this MSA, and (3) this MSA.
12.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
12.4 Counterparts. This MSA may be executed in one or more counterparts, including by way of facsimile, pdf or other electronic means, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.