Terms and Conditions
1. General. These Terms and Conditions (these “Terms”) govern the relationship under the Services Agreement (the “Services Agreement,” and together with these Terms, the “Agreement”) between Clario, LLC (“Company”) and any party to the Agreement (“Client”). Without limiting the generality of the foregoing, by accessing or using the services maintained at [https://goclario.com] (and any subdomains thereof) in connection with the Services, Client thereby agrees to these Terms, as revised from time to time in Company’s sole discretion. Company and Client are sometimes each called a “Party” and together the “Parties.”
2. Definitions. Any capitalized term used but not defined in these Terms shall have the meaning given in the Services Agreement. The following capitalized terms shall have the following meanings:
(a) “Confidential Information” means, with respect to either Party, any information in any form that relates to such Party’s actual or anticipated business, including but not limited to research, technical data, trade secrets, know-how, products, services, projects, markets, customers, employees, contractors,
vendors, developments, ideas, inventions, business plans, methods, processes, strategies, formulas, technology, designs, drawings, engineering, software, hardware, marketing, contracts, financial data, sales data, budgets, costs and forecasts, except information that (i) was in the possession of the such Party without restriction before receipt hereunder, as shown by such Party’s records from prior to disclosure; (ii) is or becomes publicly available without breach of this Agreement; (iii) is rightfully received by such Party from a third party without violation of any obligation of confidentiality or nonuse or (iv) is independently developed by such Party without reference to such information. Confidential Information includes any information of third parties with respect to which such Party has obligations of nonuse or nondisclosure.
(b) “Innovations” means all discoveries, innovations, improvements, ideas or inventions conceived of or developed in connection with Company performing the Services, or as a result of the Services, that are related to Company’s business.
(c) “Territory” means (x) all counties in the state of Utah, (y) all other states of the United States of America and (z) all other countries of the world where Company derives at least three percent (3%) of its gross revenues during the Restricted Period.
3. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES OR CLAIMS, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES AND ANY SOFTWARE UTILIZED IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY, ITS SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT WARRANT THAT A) THE SERVICE WILL FUNCTION UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; C) THE SERVICE IS FREE OF VIRUSES
OR OTHER HARMFUL COMPONENTS; OR D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.
4. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, MALPRACTICE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, RESULTING FROM OR ARISING OUT OF THE AGREEMENT OR THE PERFORMANCE THEREOF, WITHOUT RESPECT TO NOTICE OF THE
POSSIBILITY THEREOF. COMPANY’S AGGREGATE LIABILITY TO CLIENT FOR ANY LOSSES, CLAIMS, BREACHES OR DAMAGES UNDER THE AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CLIENT UNDER THE AGREEMENT DURING THE ONE (1) MONTH PRIOR TO SUCH LOSS. CLIENT AGREES TO HOLD COMPANY AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS AND AGENTS (“REPRESENTATIVES”) HARMLESS FOR ANY CLAIMS, DAMAGES, SUITS, PROCEEDINGS, LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND COSTS) (COLLECTIVELY, “LOSSES”) RESULTING FROM, ARISING OUT OF, OR RELATING TO THE SERVICES, INCLUDING THE BAD FAITH, GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF COMPANY’S VENDORS AND SERVICE CLIENTS UNLESS CAUSED BY THE GROSS NEGLIGENCE, BAD FAITH OR WILFULL MISCONDUCT OF COMPANY OR ITS REPRESENTATIVES.
5. Indemnification. Each Party shall indemnify and defend the other Party, its Representatives and
employees, and hold them harmless, from and against any and all Losses arising out of or related to such Party’s gross negligence, bad faith or willful misconduct unless caused by the gross negligence, bad faith or willful misconduct of the other Party.
6. Confidentiality. Each Party shall: (a) retain the Confidential Information of the other Party in strict confidence; (b) not modify, disseminate, or disclose such Confidential Information to any third party except as provided herein or with the express written consent of the other Party; and (c) not use such Confidential Information for any purpose other than in connection with performance of the Agreement. Each Party may disclose the Confidential Information of the other Party only to those of its directors, officers, managers, employees, agents, independent contractors, or affiliates who have a need to know in connection with performance of the Agreement and who are bound by obligations of confidentiality and non-use no less restrictive than those in these Terms. Each Party may disclose such Confidential Information to the extent required by law, regulation or court order; provided that such Party shall notify the other Party prior to such disclosure. Such disclosure by itself shall not cause such information to cease being Confidential Information. Each Party shall notify the other Party in writing immediately upon discovery of any use or disclosure of the other Party’s Confidential Information in violation of the Agreement. As between the Parties, all Confidential Information of either Party is and will remain the sole property of such Party. Notwithstanding anything to the contrary in the Agreement, Company shall have a right to access, use, distribute, sell and maintain non-identifiable data and information related to the Services collected by Company or Client in the course of Company providing the Services.
7. Ownership. The software, technology and other intellectual property of Company is and shall remain the sole and exclusive property of Company and Client shall have no rights thereto except as provided by the Agreement. All Innovations are and shall be the sole and exclusive property of Company. Client agrees to assign and hereby does assign any and all right, title and interest in and to all Innovations. Client agrees to perform all acts deemed reasonably necessary or desirable by Company to carry out the purposes of this Section 7.
8. Solicitation. During the Term and for a period of three (3) years thereafter (the “Restricted Period”), Client shall not, (a) without Company’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of Company to terminate employment with, or cease providing services to, Company or (b) whether for its own account or for the account of any other person or entity, intentionally interfere with any person who is or during the Term was a partner, supplier, Client or client of Company.
(a) Covenant. During the Restricted Period, Client will not, without the prior written consent of Company, (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor of, (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, invest in or work for any business in competition with or otherwise similar to Company’s business in the Territory.
(b) Acknowledgement. Client’s fulfillment of the obligations contained in Section 9(a) above is necessary to preserve the Confidential Information, value and goodwill of Company. Client acknowledges the time, geographic and scope limitations of the obligations under Section 9(a) above are reasonable, especially in light of Company’s desire to protect trade secrets, and that Client will not be precluded from conducting its business if obligated to comply with Section 9(a) above.
(c) Severability. The covenants contained in Section 9(a) above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for
geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in Section 9(a) above. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from the Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of Section 9(a) above are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.
10. Dispute Resolution.
(a) Arbitration. Except as expressly provided otherwise in the Agreement, any and all disputes or claims involving anyone arising out of, relating to, or resulting from the Agreement, including Company’s performance of the Services or termination of the Agreement, shall be subject to binding arbitration administered in accordance with the American Arbitration Association’s National Rules for the Resolution of Commercial Disputes then in effect (the “Rules”) and Utah law, without regard to conflict of laws principles. Such arbitration shall be held in Salt Lake City, Utah before a neutral arbitrator selected in accordance with the Rules. The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including discovery motions, motions for summary judgment and motions to dismiss and demurrers, prior to any arbitration hearing. The arbitrator shall issue a written decision on the merits and will have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. BY AGREEING TO SUCH ARBITRATION OF SUCH DISPUTES AND CLAIMS, CLIENT HEREBY WAIVES ITS RIGHT TO A JURY TRIAL RELATING THERETO, INCLUDING ALL CLAIMS UNDER FEDERAL, STATE, MUNICIPAL OR OTHER JURISDICTIONAL STATUTE, RULE OR REGULATION.
(b) Remedy. Except as provided otherwise by the Rules and the Agreement, arbitration will be the sole, exclusive and final remedy for any dispute between the Parties and neither Party shall be permitted to
pursue court action regarding claims that are subject to arbitration. The Agreement does not prohibit either Party from pursuing an administrative claim, but does preclude each Party from pursuing court action regarding any such claim. Notwithstanding anything to the contrary in the Agreement, Company may pursue court action for recovery of any fees or other amounts owed to Company pursuant to the Agreement.
(c) Injunctive Relief. Violation of the Agreement will cause irreparable injury and money damages will not provide an adequate remedy therefor. Client hereby consents to the issuance of injunctive relief as permitted by the Rules, without posting any bond or other security, compelling Client to comply with the
Agreement. Company shall be entitled to recover reasonable costs and attorneys’ fees in any successful injunctive action under this Section.
(a) The Parties acknowledge that Company, in connection with providing the Services, may acquire certain nonpublic information about applicants, clients, patients and accountholders of Client (each, a “Consumer”) related to the Services, including without limitation, account information, medical, dental and health information, credit information, financial information, employment information, information from Consumer credit applications and other forms (including Applications), information from Client, and information derived from consumer reports, that is subject to protection from publication under applicable law and regulation (collectively, “Consumer Personal Information”).
(b) Company will handle all information collected regarding Consumers in accordance with applicable
state and federal privacy laws and regulations and with Client’s internal privacy practices (to the extent consistent with such laws and regulations).
12. Protected Health Information. Client agrees to alert Company in writing if Client will be using the Services to store or process protected health information, as “protected health information” is defined in 45 CFR §160.103, or any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as amended, including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (collectively, “PHI”). To the extent that Client does use the Services to store or process PHI, then the terms of the Clario Business Associate Addendum, contained in Section 15, will apply to any PHI stored or processed by Client using the Services. Upon request, both parties will execute a signable version of the Clario Business Associate Addendum.
13. Representations and Warranties. Client hereby represents and warrants to Company that: (a) all information, statements, signatures, documents, consents, or other information obtained or prepared by Client and by Consumers and others in connection with the Services is complete, accurate, true, and not misleading, fraudulent, or resulting from misrepresentation; (b) Client holds all licenses required in order to conduct its business as contemplated by the Agreement; (c) Client is duly organized, validly existing and in good standing under the laws of the state under which it is incorporated or organized, and has full power and authority to carry on its business as it is now being conducted and is duly qualified to transact business as it is now being conducted in all states where such qualification is required; (d) the Client is authorized to enter into the Agreement and perform its obligations hereunder, (e) entering into and performing the Agreement does not and will not violate Client’s charter, certificate of organization, bylaws, or similar organizational documents, as the case may be, or any contract or agreement to which Client is a party; and (f) Client understands and agrees that Company will not compensate Client for any referrals of Consumers to Company.
14. Additional Covenants. Client covenants to Company that Client: (a) will comply with Company’s
policies and procedures in effect from time to time; (b) will comply with all applicable federal or state laws, rules and regulations (whether embodied in statutes, regulations, or formal or informal administrative agency promulgations), as the same may be amended from time to time; (c) will not make any representations or warranties, including but not limited to false or misleading representations, with respect to the specifications, features, or functionality of the Company’s products or services and will ensure that all information concerning the Services that Client displays, distributes, utilizes, or advertises with is complete, accurate, up-to-date, and compliant with applicable laws and regulations; (d) will use its reasonable best efforts to fulfill all service obligations agreed to by Client with Consumers; (e) perform warranty work promptly and as necessary in conjunction with Client’s warranty obligations to
Consumers; and (f) not use Company’s name or logo, in any written material or advertisement, without Company’s prior written approval.
15. Business Associate Addendum. This Business Associate Addendum (“Addendum”) is entered between Client (“Covered Entity”) and Company (“Business Associate”).
Pursuant to the parties’ separate services agreement (“Services Agreement”), Business Associate has agreed to perform certain services for or on behalf of Covered Entity that may involve the creation, maintenance, use, transmission or disclosure of protected health information within the meaning of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and its implementing regulations, 45 CFR Parts 160 and 164 (“HIPAA Rules”). This Addendum supplements the Services Agreement and is intended to and shall be interpreted to satisfy the requirements for business associate
agreements as set forth in the HIPAA Rules as they shall be amended. Definitions
1. General Definitions. The following terms used in this Addendum shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.
2. Specific Definitions.
(a) Business Associate shall generally have the same meaning as the term “business associate” at 45 CFR § 160.103, and in reference to the party to this Addendum, shall mean Business Associate.
(b) Covered Entity shall generally have the same meaning as the term “covered entity” at 45 CFR § 160.103, and in reference to the party to this Addendum, shall mean Covered Entity.
(c) Protected Health Information shall generally have the same meaning as the term “protected health information” at 45 CFR § 160.103, and shall include any individually identifiable information that is created, received, maintained, or transmitted by Business Associate on behalf of Covered Entity that relates to an individual’s past, present, or future physical or mental health, health care, or payment for health care, whether such information is in oral, hard copy, electronic, or any other form or medium.
1. Business Associate Responsibilities. Business Associate agrees to:
(a) Not use or disclose protected health information except as permitted by Section 2, below, or as
otherwise required by law.
(b) Use appropriate safeguards to prevent the use or disclosure of protected health information other than as permitted by this Addendum. To the extent applicable to business associates, Business Associate shall comply with the requirements in 45 CFR Part 164, Subpart C, including the use of administrative, physical and technical safeguards to protect electronic protected health information.
(c) Report to Covered Entity any use or disclosure of protected health information not permitted by this Addendum of which it becomes aware, including breaches of unsecured protected health information as required by 45 CFR § 164.410, and any security incident as required by 45 CFR § 164.314(a)(2)(i)(C).
(d) Ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of Business Associate agree to the same restrictions, conditions, and requirements that apply to Business Associate with respect to such information as required by 45 CFR §§ 164.502(e)(1)(ii) and (2) and 164.308(b)(2)(i)-(iii). Business Associate may fulfill this requirement by having the subcontractors execute an agreement that incorporates the terms of this Addendum.
(e) Within thirty (30) days after Covered Entity’s request, make available to Covered Entity any protected health information in Business Associate’s control as necessary to enable Covered Entity to satisfy its obligations to provide an individual with access to certain protected health information under 45 CFR §
(f) Within sixty (60) days after Covered Entity’s request, make available to Covered Entity any protected health information for amendment and incorporate any amendments to protected health information as necessary to enable Covered Entity to satisfy its obligations under 45 CFR § 164.526.
(g) Within sixty (60) days after Covered Entity’s request, make available to Covered Entity the information required to provide an accounting of disclosures as necessary to enable Covered Entity to satisfy its obligations under 45 CFR § 164.528.
(h) To the extent Business Associate is to carry out Covered Entity’s obligations under 45 CFR Part 164, Subpart E, comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligations.
(i) Make Business Associate’s internal practices, books, and records relating to the use and disclosure protected heath information received from, or created or received by Business Associate on behalf of Covered Entity, available to the Secretary for purposes of determining Covered Entity’s compliance with the HIPAA Rules.
2. Uses and Disclosures by Business Associate.
2.1 Permissible Uses and Disclosures. Business Associate may use or disclose protected health information only as follows:
(a) As necessary to perform the services set forth in the Service Agreement;
(b) To de-identify protected health information in accordance with 45 CFR § 164.514(a)-(c);
(c) As required by law;
(d) For the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided that: (i) any disclosures for these purposes are required by law, or (ii)(a) Business Associate obtains reasonable assurances from the entity to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the entity, and (b) the entity notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached; and
(e) To provide data aggregation services relating to the health care operations of Covered Entity as defined in 45 CFR § 164.501.
2.2 Impermissible Uses or Disclosures. Business Associate may not use or disclose protected health information in a manner that would violate 45 CFR Part 164, Subpart E, if done by Covered Entity except for the specific uses and disclosures set forth in Sections 2.1(d)-(e), above.
2.3 Minimum Necessary. Business Associate agrees to make uses and disclosures and requests for protected health information consistent with Covered Entity’s minimum necessary policies and procedures as disclosed by Covered Entity to Business Associate in advance.
3. Covered Entity Responsibilities.
3.1 Representations and Warranties. Covered Entity represents and warrants that, prior to execution of this Addendum and at all times during this Addendum, (i) Covered Entity has obtained or will obtain any
consent or authorization required by the HIPAA Rules or other law necessary for Business Associate to perform its duties pursuant to this Addendum; and (ii) Covered Entity has notified Business Associate of:
(a) Any limitation(s) in Covered Entity’s notice of privacy practices, policies, or agreements, or any order or other limitation imposed on Covered Entity, to the extent that such limitation may affect Business Associate’s use or disclosure of protected health information.
(b) Any agreement by Covered Entity with an individual concerning the use or disclosure of the individual’s protected health information, to the extent that such agreements may affect Business Associate’s use or disclosure of protected health information.
(c) Any restriction on the use or disclosure of protected health information to which Covered Entity has agreed or with which Covered Entity is required to abide under 45 CFR § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of protected health information.
3.2 Notice of Change by Covered Entity. Covered Entity agrees to immediately notify Business Associate of any non-compliance with the representations and warranties identified in Section 3.1, including any change in the limitations, agreements, or restrictions identified in Section 3.1. Covered Entity understands and agrees that Business Associate entered this Addendum in reliance on Covered Entity’s representations and warranties in Section 3.1, and that any non-compliance or change in limitations, agreements or restrictions may affect Business Associate’s performance under this Addendum and shall entitle Business Associate to immediately terminate this Addendum and/or the Services Agreement at Business Associate’s election.
4. Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose protected health information in any manner that would not be permitted under 45 CFR Part 164, Subpart E, if done by Covered Entity, except that Business Associate may use or disclose protected health
information for Business Associate’s data aggregation, management, administration, and legal responsibilities as set forth in Section 2.1(d)-(e).
5. Term and Termination. Unless otherwise agreed in writing by the parties, this Addendum shall be effective as of the date executed by the parties and shall continue until terminated as provided below.
5.1 Termination. This Addendum may be terminated as follows:
(a) Either party may terminate this Addendum upon thirty (30) days prior written notice to the other party due to a material breach of this Addendum by the other party. The breaching party shall have the opportunity to cure the breach during the 30-day notice period. If the breaching party fails to cure the breach within the 30-day notice period, the non-breaching party may declare the Addendum terminated by providing written notice at the end of the 30-day period.
(b) Either party may terminate this Addendum if either party determines that the other party has violated any law or regulation and/or that continued performance under this Addendum may subject the party to adverse action by any governmental agency.
(c) Business Associate may terminate this Addendum pursuant to Section 3.2.
5.2 Obligations of Business Associate Upon Termination. Upon termination of this Addendum for any reason, Business Associate, with respect to protected health information received from Covered Entity, or
created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
(a) Retain only that protected health information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities as described in Section 2.1(d).
(b) If feasible, return or destroy all other protected health information in Business Associate’s control.
(c) For any protected health information that is retained, continue to extend the protections of this Addendum to such information and limit further uses and disclosures to those purposes permitted by this Addendum.
5.3 Survival. Business Associate’s obligations under this Section shall survive the termination of this Addendum.
6. Regulatory References. A reference in this Addendum to a section in the HIPAA Rules means the section as in effect or as amended.
7. Amendment. The parties agree to take such action as is necessary to amend this Addendum from time to time as is necessary to comply with the requirements of the HIPAA Rules and any other applicable law.
8. Governing Law. This Addendum shall be construed to comply with the requirements of the HIPAA Rules, and any ambiguity in this Addendum shall be interpreted to permit compliance with the HIPAA Rules. All other aspects of this Addendum shall be governed under the laws of the State in which Business Associate maintains its principal place of business.
9. Cooperation. The parties agree to cooperate with each other’s efforts to comply with the requirements
of the HIPAA Rules and other applicable laws; to assist each other in responding to and mitigating the effects of any breach of protected health information in violation of HIPAA Rules or this Addendum; and to assist the other party in responding to any investigation, complaint, or action by any government agency or third party relating to the performance of this Addendum.
10. Relation to Services Agreement. This Addendum supplements the Services Agreement. The terms and conditions of the Services Agreement shall continue to apply to the extent not inconsistent with this Addendum. If there is a conflict between this Addendum and the Services Agreement, this Addendum shall control.
11. No Third Party Beneficiaries. Nothing in this Addendum is intended to nor shall it confer any rights on any other persons except Covered Entity and Business Associate.
12. Entire Agreement. This Addendum contains the entire agreement between the parties as it relates to the use or disclosure of protected health information, and supersedes all prior discussions, negotiations and services relating to the same to the extent such other prior communications are inconsistent with this Addendum.
13. Indemnification. If a party to this Addendum breaches any provision of this Addendum or violates any requirement of the HIPAA Rules applicable to that party, that party shall indemnify, hold harmless and defend the other party from and against any and all claims, losses, liabilities, costs and other expenses incurred by the other party as a result of such breach or violation.
14. Limitation on Liability. Notwithstanding any other provision of this Addendum, in no event shall
Business Associate or any of its directors, officers, agents, parents, affiliates or subsidiaries (collectively “Business Associate”) be liable to Covered Entity or any third party for any special, consequential, incidental, or indirect loss or damages arising out Business Associate’s acts or omissions relating to this Addendum or the HIPAA Rules whether or not Business Associate has been advised of the possibility of such loss or damages. In all cases, and notwithstanding and other provision of this Addendum, Business Associate’s aggregate liability under any legal theory, including contract, tort, or other bases, shall not exceed the fees paid by Covered Entity to Business Associate pursuant to the Services Agreement during the six (6) month period prior to the first occurrence upon which liability is based.
(End of Business Associate Addendum) 16. Miscellaneous.
(a) Fees. Client acknowledges and authorizes Company (without notice, unless required by applicable law) to collect the Monthly Fee or Annual Fee (as defined in the Service Agreement) and any taxes, using the Client’s credit card that Company has on file.
(b) Dispute Resolution. Upon a Consumer filing a dispute with any party over goods or services rendered (a “Dispute”), Client agrees to (a) timely investigate all Disputes, (b) cooperate with Company and such Consumer in connection with such Dispute and (c) resolve any legitimate Disputes within a reasonable amount of time. If a Dispute is filed or initiated with Client, Client shall notify Company in writing or via e-mail that such dispute has been initiated or filed within 15 days of such initiation or filing and shall provide Company and such Consumer with appropriate documentation describing the services rendered and receipt of payment(s) relating to the services within 15 days of the request to provide such materials.
(c) Nothing in the Agreement shall be construed to constitute a relationship between the Parties of partners, joint venturers, principal and agent or employer and employee. Company’s relationship to Client during the Term shall only be that of an independent contractor and Company shall perform all Services
pursuant to the Agreement as an independent contractor. Client shall not make any representation that might cause any third party to conclude or reasonably understand the Client is an agent of Company or is otherwise authorized to act on behalf of Company in any respect.
(d) Amendment and Waiver. The Company may amend these Terms and the Pricing Guide in any Services Agreement from time to time in its sole discretion. Except as otherwise provided in the Agreement, no amendment, modification or waiver of any provision of the Agreement, including all exhibits hereto, shall be effective unless in writing and signed by each Party. No waiver of any of the
provisions of the Agreement shall be deemed or constitute a continuing waiver of such provision or a waiver of any other provision.
(e) Severability. If any provision of the Agreement is found to be unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect.
(f) Survival. Upon termination of the Agreement, all rights and duties of the parties under the Agreement shall cease, except that these Terms and Client’s obligation to pay any outstanding unpaid fees accruing during the Term shall survive termination.
(g) Governing Law. The Agreement shall be governed by and construed under the laws of the State of Utah without regard to conflict of laws provisions thereof. In any action or proceeding to enforce rights under the Agreement, the prevailing party shall be entitled to recover its costs and attorneys’ fees.
(h) Venue. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts located within the State of Utah for any court proceedings arising from or relating to the Agreement.
(i) Notices. All notices given under the Agreement shall be in writing and faxed, emailed, mailed, or delivered to the respective principal business addresses and numbers of the Parties or to such other addresses or numbers as such Party shall have furnished to the other Party in writing. All such notices will be deemed given upon the earlier or (i) receipt; (ii) personal delivery; (iii) transmission by facsimile or email (with confirmation of transmission from the transmitting device); (iv) one business day after deposit with an overnight courier service of recognized standing; or (v) four days after deposit in the U.S. mail, first class with postage prepaid.
(j) Termination. Company may terminate this Agreement at any time for any reason.
(k) Assignment. No Party may assign the Agreement without the prior written consent of the other Party; provided that Company may assign the Agreement in connection with the acquisition of all or substantially all of the assets of Company or an assignment as a matter of law pursuant to a merger or otherwise. Any attempt to assign the Agreement other than as permitted above will be null and void. Subject to the foregoing, the Agreement shall be binding upon and shall inure to Parties and their respective successors and permitted assigns.
(l) Counterparts. The Services Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one agreement.
(m) Voluntary Agreement. Client (i) has carefully read and fully understands the Agreement, (ii) has had an opportunity to seek legal counsel before executing the Agreement and (iii) is executing the Agreement voluntarily and without any duress or undue influence.
(n) Entire Agreement. The Agreement (together with all exhibits) constitutes the full and complete
understanding and agreement of the Parties with respect to the subject matter herein and supersedes all prior oral and written understandings and agreements of the Parties with respect thereto.