This Cloud Services Agreement is entered into by and between Carina Health, inc., a Delaware company with its principal place of business at 447 Sutter St Ste 405 #398 San Francisco, California 94108, USA, (“Carina Health”) and the organization on whose behalf you are agreeing to this Agreement, as set forth in the Order Form (“Customer”). When used herein the term “Agreement” includes the body of this Agreement (hereinafter “Standard Terms”) and any and all Order Forms entered into by the Parties and all exhibits attached hereto. This Agreement shall be effective on the effective date of the initial Order Form (the “Effective Date”). Carina Health and Customer may be referred to in this Agreement individually as a “Party” and together as the “Parties.”
This Agreement sets forth the terms under which Carina Health will provide one or more of its cloud-based services to Customer (collectively the “Service”) and any related Support, Documentation, training and/or Implementation Services. Pricing and itemized details of Customer’s specific Service purchase are set forth in the applicable Order Form(s).
2.1 Access to the Service. During the Subscription Term, will make the Service available to Customer solely for Customer’s internal use and subject to limits agreed in the Order Form. Except as otherwise stated in the applicable Order Form, Customer may permit its Affiliates to use and access the Service and Documentation in accordance with this Agreement, but Customer will be responsible for their compliance with this Agreement and the applicable Order Form(s).
2.2 Limitations. Customer will not: (a) resell, sublicense, lease, time share or otherwise make the Service available to any party not authorized to use the Service under this Agreement or an applicable Order Form; (b) copy, modify or create derivative works based on the Service; (c) reverse engineer or decompile the Service (unless such right is granted by applicable law and then only to the minimum extent required by law); (d) allow the sharing of access credentials if the applicable Order Form restricts Service access to a limited number of authorized users; (e) use of the Service for unlawful purposes, including to send or store infringing, obscene, threatening, or otherwise unlawful material; (f) use the Service to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; or (g) disrupt the integrity or performance of the Service.
2.3 Affiliates. The parties agree that their respective Affiliates may conduct business under this Agreement by entering into Order Forms subject to this Agreement. Accordingly, where Affiliates of the parties conduct business hereunder, references to the respective parties herein shall include the applicable Affiliate(s).
2.4 Suspension. If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days after the Payment Period; (b) breaches Section 2.2 (Limitations); or (c) uses the Services in violation of the Agreement or in a way that materially and negatively impacts the Services or others; then Carina Health may temporarily suspend Customer’s access to the Services with or without notice, However, Carina Health will use commercially reasonable efforts to inform Customer prior to suspending Customer’s account when practical. Carina Health will reinstate Customer’s access to he Service only if Customer resolves the underlying issue.
Customer shall be solely responsible for its own compliance with this Agreement and compliance by its authorized users and/or others to whom it grants access to the Service. Customer agrees to promptly notify of any unauthorized access to the Service arising from a compromise or misuse of Customer’s or its authorized user’s access credentials. Customer is exclusively responsible for determining what data Customer submits to the Service, for obtaining all necessary consents and permissions for submission of Customer Data and related data- processing instructions to, and for the accuracy, quality and legality of Customer Data.
4.1 Ownership of the Service. Carina Health and/or its licensors shall retain all right, title and interest in the Service and the technology and software used to provide it, including any modifications or enhancements to the Service arising from Customer feedback. Carina Health also shall retain all right, title and interest in the Documentation. No rights are granted to Customer by except as expressly stated in this Agreement.
4.2 Ownership and Processing of Customer Data. Customer and/or its licensors shall retain all right, title and interest in all Customer Data stored in the Service, including any revisions, updates or other changes made to that Customer Data. Customer grants a non-exclusive, perpetual, royalty-free license to use, host, disclose, copy, process, transmit, modify or create derivative works of, and display Customer Data as reasonably necessary to provide the Service in accordance with this Agreement.
4.3 Use of Aggregate Information. may collect and aggregate data derived from the operation of the Service (“Aggregated Data”), and may use such Aggregated Data for purposes of operating 's business, monitoring performance of the Service, and/or improving the Service. 's use of Aggregated Data as described in this Section shall not result in any unauthorized disclosure of Customer Data, Customer Confidential Information, or personally identifiable information of Authorized Users.
5.1 Payment. Fees for the Service will be identified in an Order Form. All fees are payable in advance in USD. Fees are due and payable thirty (30) days from the date of the invoice. Fees are non-cancelable and non-refundable. Customer may not decrease the scope of its Service Entitlements during the relevant Subscription Term. Carina Health reserves the right to suspend the Service in the event Customer is more than thirty (30) days past due on any undisputed invoice and fails to cure the payment deficiency within ten (10) days of receiving written notice of the deficiency from .
5.2 Taxes. All fees are exclusive of taxes, levies, or duties, (“Taxes”), and unless Customer can provide a valid state sales/use/excise tax exemption certificate (or other reasonable evidence of exemption) to , Customer will be responsible for payment of all such Taxes excluding taxes based solely on income. may invoice Taxes in accordance with applicable law together on one invoice or a separate invoice. reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other location information for Customer’s use of the Service. Customer will be responsible for any Taxes, penalties or interest arising from inaccurate or incomplete information provided by Customer. If Customer is required by any governmental authority to deduct any portion of the amount invoiced by , Customer shall increase payment by an amount necessary for the total payment to to be equal to the amount originally invoiced.
6.1 Confidentiality. “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”), which are identified as confidential at the time of disclosure or, under the circumstances of disclosure, a reasonable person would understand to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: this Agreement, ’s pricing, product roadmap or strategic marketing plans, and any non-public materials relating to the Service including the Documentation. Recipient may disclose Discloser’s Confidential Information only to Recipient’s Affiliates, employees, officers, directors, advisors or contractors who need to know such Confidential Information and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.
6.2 Exclusions. “Confidential Information” does not include information that: (a) is independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (b) is lawfully received free of restriction from another source having the right to furnish such information; (c) is or becomes lawfully in the public domain other than through a breach of this Agreement; (d) was known by the Recipient prior to disclosure; (e) Discloser agrees in writing is free of such restrictions; or (f) is generally disclosed by the Discloser to third parties without a duty of confidentiality.
6.3 Duties Regarding Confidential Information. At all times during and after the term of this Agreement, Recipient shall (a) keep Discloser’s Confidential Information confidential and not disclose Discloser’s Confidential Information to a third party without the Discloser’s written consent or as expressly permitted in this Agreement and (b) not use the Confidential Information for purposes other than the performance of this Agreement. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice to enable Discloser to seek appropriate protection of the Confidential Information.
6.4 Unauthorized Disclosures. The parties agree that Recipient’s unauthorized disclosures of Confidential Information may result in irreparable injury for which a remedy in money damages may be inadequate. The parties therefore agree the Discloser may be entitled to seek an injunction to prevent a breach or threatened breach of this Section without posting a bond. Any such injunction shall be additional to other remedies available to Discloser at law or in equity.
6.5 Feedback. To the extent Customer provides suggestions or other feedback specifically relating to the Service, Support, or Implementation Services, Customer grants to a royalty free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, and otherwise exploit such feedback, including incorporating it into the Service, Support and/or Implementation Services.
7.1 General Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement. further represents and warrants that (a) it will use reasonable skill and care in providing Support and Implementation Services and (b) it has taken commercially reasonable measures to ensure the Service is free from, and will not transmit, any malicious or hidden mechanisms or code designed to damage or corrupt Customer’s data or network systems.
7.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE, IMPLEMENTATION SERVICES, DOCUMENTATION, AND SUPPORT ARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CARINA HEALTH MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, IMPLEMENTATION SERVICES, DOCUMENTATION OR SUPPORT. HASHICORP SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, CARINA HEALTH DOES NOT WARRANT THE SERVICE WILL BE ERROR-FREE OR THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED. WITHOUT LIMITING THE FOREGOING, CARINA HEALTH DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT INFORMATION PROVIDED BY PATIENTS (INCLUDING MEDICAL INSURANCE INFORMATION) WILL BE ACCURATE, AND CUSTOMER ASSUMES ALL RISK RELATING TO INACCURATE INFORMATION.
IN NO EVENT WILL CARINA HEALTH BE LIABLE HEREUNDER FOR (A) LOSS OF PROFITS, REVENUE, OR LOSS OR INACCURACY OF DATA, OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (B) ANY OTHER AMOUNTS IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO CARINA HEALTH HEREUNDER IN THE TWELVE MONTHS PRIOR TO THE CLAIM, IN EACH CASE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer acknowledges that Carina Health is only providing a platform that connects patients with health care providers and does not provide medical or professional advice or diagnosis to patients, nor does Carina Health evaluate patients or their medical needs, nor is Carina Health referring patients to Customer. Customer assumes all liability and risk relating to the evaluation and treatment of patients and will defend and indemnify Carina Health against any claims, damages, liability, settlement, attorneys’ fees, and expenses, as incurred, on account of the foregoing or any breach of the Agreement by Customer.
10.1 Effective Date and Term. This Agreement commences on the Effective Date and will continue for so long as there is an Order Form in effect between the parties.
10.2 Termination for Cause. If either party materially breaches the terms of this Agreement and the breach is not cured (or curable) within thirty (30) days after written notice of the breach, then the other party may terminate this Agreement and/or the applicable order form upon written notice to the breaching party. Either party also may terminate this Agreement upon written notice: (a) if the other party (i) terminates or suspends its business, (ii) becomes subject to any insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
10.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) ’s obligation to provide the Service and accompanying Support will terminate, (b) all of Customer’s and its Authorized Users’ rights to use the Service will terminate, and (c) the provisions of Sections 4 (Intellectual Property Rights and Ownership), 5 (Payment; Taxes), 6, 7.3, 8, 9, 10.4 and 11 of this Agreement will survive such expiration or termination.
10.4 Removal of Company Data. Customer will be responsible for retrieving Customer Data from the Service before this Agreement expires or otherwise terminates. At Customer’s option, Customer may enter into an Order Form to extend its Subscription on a monthly basis (prorated based on Customer’s most recent annual Subscription fee) for a period of up to three (3) calendar months after the termination date of this Agreement so that Customer may access and export its data to another location (“Transition Period”). After the Transition Period, will deactivate Customer’s access to the Service and may delete all Customer Data from the Service.
11.1 Assignment. This Agreement is assignable by either party with the other party's prior written consent, which will not be unreasonably withheld or delayed; provided, however, that either party may, upon written notice and without the prior approval of the other party, (a) assign this Agreement to an Affiliate so long as the Affiliate has sufficient credit to satisfy its obligations under this Agreement and the scope of Service is not affected or (b) assign this Agreement pursuant to a merger or a sale of all or substantially all of such party's assets or stock.
11.2 Compliance with Applicable Laws. Each party will comply with all applicable laws, including without limitation, applicable export-control restrictions, data privacy laws, and anti-corruption laws.
11.3 Future Features and Functions. The development, release, and timing of any additional features or functionality of the Service remains at 's sole discretion. Accordingly, Customer agrees that it is purchasing products and services based solely upon features and functions that are currently available as of the time an Order Form is executed, and not in expectation of any future feature or function.
11.4 Notices. Notices may be sent by first-class mail or private courier to the address of the receiving party identified on the first page of this Agreement. Notice will be deemed given seventy-two (72) hours after mailing, or upon confirmed delivery by private courier, whichever is sooner. Customer will address notices to notice@carinahealth.com. Either party may from time to time change its address for notices under this Section upon written notice to the other party.
11.5 Non-waiver. Any failure of either party to enforce performance by the other party of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver of such party's right to assert or rely upon such provision, right or remedy in that or any other instance. Neither party waives any rights or limits its remedies for actions taken outside the scope of this Agreement.
11.6 Governing Law and Dispute Resolution. The Agreement shall be governed by the laws of the State of California, regardless of conflict of law principles that would result in the application of any law other than the law of the State of California. In the event of a Dispute, the parties will work together in good faith to resolve such Dispute. The Agreement and any dispute, controversy, or claim arising out of or in connection with or relating to the Agreement or any breach or alleged breach thereof (each, a “Dispute”) shall be governed by the laws of the State of California, regardless of conflict of law principles that would result in the application of any law other than the law of the State of California. The prevailing party in any dispute shall be entitled to its reasonable attorney’s fees, costs and expenses.. . EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT.
11.7 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
11.8 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect. Each party may identify the other as a customer or supplier, as applicable.
11.9 Force Majeure. Force majeure events shall excuse the affected party (the "Non-Performing Party") from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include, without limitation, Acts of God, natural disasters, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government (each, a “Force Majeure Event”). As soon as feasible, the Non-Performing Party shall notify the other party of (a) its best reasonable assessment of the nature and duration of the force majeure event, and (b) the steps it is taking to mitigate its effects. If the force majeure event prevents performance for more than sixty (60) consecutive days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice.
11.10 Entire Agreement; Execution. This Agreement, together with the applicable Order Form(s) and statements of work, constitutes the entire agreement between parties, and supersedes all prior or contemporaneous proposals, quotes, negotiations, discussions, or agreements, whether written or oral, between the parties regarding its subject matter. In the event of a conflict among the Standard Terms, and any Order Form, Exhibit B (“Business Associate Agreement) (the “BAA”), or other exhibit, attachment, or document hereto, the following descending order of precedence will apply: (a) the BAA, with respect to the treatment of any PHI (as defined by the BAA), (b) Standard Terms, (c) any Order Form, and (e) any other exhibit or attachment hereto. Revisions to this Agreement must be made by a separate amendment, signed by each party, and must be expressly drafted for that purpose and identify the specific sections that are being revised. Preprinted terms in Customer purchase orders or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by and/or purport to take precedence over this Agreement. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties may use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures shall be legally binding with the same effect as manual signature.