Mozzaz Licensing Subscription Agreement
Effective March 1, 2019
Standard Terms & Conditions
These terms and conditions (the “Terms”) govern the relationship between Mozzaz Corporation (“Mozzaz”) and Persons to whom Mozzaz provides software or subscription services (the “Subscriber”) pursuant to a separate definitive agreement (the “Definitive Agreement”) entered into between Mozzaz and the Subscriber (collectively, the “Parties”). Any capitalized terms not defined herein shall have the meaning set out in the Definitive Agreement.
1.1. “Affiliate” shall mean an entity that now or in the future, directly or indirectly through one or more intermediaries’ controls, is controlled by, or is under common control or ownership with a Party to this Agreement. For purposes of this definition, “control” over an entity shall mean (i) the possession, directly or indirectly, of fifty percent (50%) or more of the voting power to elect directors, in the case of an entity that is a corporation, or members of a comparable governing body, in the case of a limited liability company, firm, joint-venture, association or other entity, in each case whether through the ownership of voting securities or interests, by contract or otherwise; and (ii) with respect to a partnership, a general partner thereof or an entity having management rights comparable to those of a general partner shall be deemed to control such entity; or (iii) fifty percent (50%) or more of the ownership interest in an entity. The terms “controlling” and “controlled” shall have synonymous meanings.
1.2. “Additional Documents” means any documents executed between the Parties including any Change Orders, or any associated schedules, exhibits or addenda which are entered into by the Parties hereto, Change Orders and associated schedules, exhibits, and addenda are incorporated herein by reference.
1.3. “Agreement” means this Subscription Agreement, and any and all Additional Documents attached hereto and any documents that are incorporated herein by reference.
1.4. “CAD” means Canadian Dollars.
1.5. “Content” means information obtained by Mozzaz from its content licensors or publicly available sources and provided to Subscriber pursuant to any associated Change Order, as more fully described in the Documentation.
1.6. “Change Order” has the meaning set out in Section 2.2 hereof, provided that, upon execution of an applicable Change Order by the Parties hereto, such Change Order shall be deemed to have amended this Agreement;
1.7. “Documentation” means the Mozzaz online user guides, documentation, and help and training materials, as updated from time to time, accessible via help files or login to the applicable Service.
1.8. “External User Data” means electronic data and information submitted by or for an External User through the Subscription Services or collected from an External User and processed by or for Subscriber using the Subscription Services, excluding Content and Non-Mozzaz Applications.
1.9. “Fees” means the fees to be paid by Subscriber to Mozzaz in exchange for the Subscription Services or the Professional Services, as set forth in the Additional Documents as adjusted pursuant to the terms of this Agreement, and specifically does not include Inventory.
1.10. “Intellectual Property” means all patents, patent applications, trademarks, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including Confidential Information, data, designs, manuals, training materials and documentations, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other intellectual property rights as these terms are understood under United States law, including any modifications, adaptations, adjustments, enhancements, updates, improvements, alterations and error corrections thereto and other derivative works thereof.
1.11. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, key loggers and Trojan horses.
1.12. “Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Subscription Services.
1.13. “MSLA” means the Mozzaz Licensing Subscription Agreement.
1.14. “Non-Mozzaz Applications" means a web-based or offline software application that is provided by Subscriber or a third party and interoperates with a Subscription Service, including, for example, an application that is developed by or for Subscriber, is listed on a Marketplace, or is identified by a similar designation.
1.15. “Party” or “Parties” means Mozzaz and Subscriber individually or collectively.
1.16. “PHI” has the meaning set out in Section 13.11 hereof.
1.17. “Professional Service” or “Professional Services” means the services to be provided by Mozzaz under this Agreement which are not included in the Subscription Services, including, without limitation, professional services, technical support and training.
1.18. “Software” means the computer software that Mozzaz makes available to the Subscriber from time to time as part of Subscription Services, including but not limited to:
Mozzaz Care Portal
Mozzaz Care Pro
1.19. “Subscription License” shall mean the license or licenses granted to Subscriber by Mozzaz that grants a User access to use the Subscription Service, as more particularly set forth in the Agreement.
1.20. “Subscription Service” or “Subscription Services” shall mean the online services, computer applications, associated user interfaces, help resources, and any related technology to be made available by Mozzaz that are specified by this Agreement, together with all security devices, and any proprietary third party software that is provided as part of or that accompanies the Subscription Service, and includes, but is not limited to, the Software, Content, and Documentation.
1.21. “Subscriber Data” means electronic data and information submitted by or for Subscriber or an Internal User through the Subscription Services or collected and processed by or for Subscriber using the Subscription Services, excluding Content and Non-Mozzaz Applications.
1.22. “Supported Devices” means devices meeting at least the minimum requirements set out at www.mozzaz.com/supported-devices
1.23. “Support Services” means those services set out at www.mozzaz.com/support-services
1.24. “USD” means United States Dollars.
1.25. “User Data” means the Subscriber Data and External User Data.
1.26. “User” or “Users” means Internal Users and External Users who are licensed to use Subscription Services.
1.26.1. “Internal Users” means an individual who is authorized by Subscriber to use a Subscription Service, to whom Subscriber (or Mozzaz at Subscriber’s request) have supplied a user identification and password, and with respect to whom Subscriber is able to ensure compliance with the terms of this Agreement and shall include, but not be limited to Subscriber’s employees, consultants, contractors and agents.
1.26.2. “Internal Information User” means an Internal User who accesses the Subscription Service for information review purposes only (e.g. Executives, etc.).
1.26.3. “Internal Pro User” means an Internal User who will carry out clinical, administrative, or other similar tasks within the Subscription Service. (e.g. Clinician, Care Coordinator, Care Manager).
1.26.4. “External User” means an individual who is authorized by Subscriber to use a Subscription Service that is not an Internal User.
1.26.5. “Member” means External Users who consume Subscription Services using Mozzaz apps, portal or other such means provided by Mozzaz (e.g. Health Plan Beneficiary)
1.26.6. “Member Information User” means External Users who are associated with a specific Member for the sole purpose of accessing or providing information about a Member through Mozzaz apps, Mozzaz portal or other such means provided by Mozzaz. (e.g. Family members)
1.26.7. “Active Lives” means any Internal Pro User or Member who has been assigned an identification number and recorded as active by Subscriber at the end of a calendar month, for the purpose of licensing Subscription Services.
2. MOZZAZ RESPONSIBILITIES
2.1. Contracted Services. This Agreement shall apply to the delivery of services, support, and functions that have been agreed to by the Parties. In the event that the scope of the Agreement is to be expanded, revised, or modified, the Parties shall prepare and sign a Change Order or new agreement (as applicable). Any Change Order shall be attached hereto and incorporated herein by reference forthwith upon its execution.
2.2. Change Order. To the extent that Subscriber requires or requests additional services or services that exceed the scope of this Agreement (collectively, the “Additional Services”), Mozzaz may be entitled to charge an additional fee for such additional services or out of scope work. In the event that Subscriber requires or requests Additional Service, it shall submit notice in writing to Mozzaz with the particulars of such Additional Services (a “Change Order”). Mozzaz will review the Change Order and append proposed ways (if possible) and Fees for such Additional Services, which will also provide a description of the Additional Service(s) being requested. Once a Change Order is signed by both Parties, it will be incorporated into the Agreement and have the same legal effect as an applicable SOW.
2.3. Backup, Recovery and Protection of Subscriber Data. Mozzaz will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Subscriber Data by Mozzaz personnel except (a) to provide the Subscription Services or Professional Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as Subscriber expressly permits in writing.
2.4. Mozzaz Personnel. Mozzaz will be responsible for the performance of Mozzaz personnel (including Mozzaz employees and contractors) and their compliance with Mozzaz obligations under this Agreement, except as otherwise specified herein.
2.5. License Grant. Subject to the terms and conditions of this Agreement, Mozzaz grants to Subscriber (and its Affiliates) a non-exclusive and non-transferable license to access and use the Subscription Services, including, but not limited to, the computer software specified in this Agreement that Mozzaz makes generally available from time to time, the “Software”) and the user manuals and on-line help information for the Software that Mozzaz provides Subscriber from time to time (collectively, the “Documentation”).
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in this Agreement, Subscription Services are purchased as subscriptions. Subscriptions may be added during a subscription term through a Change Order. Any added Subscriptions will terminate on the same date as the Subscription Services unless otherwise agreed to in writing between the Parties.
3.2. Usage Limits. Subscription Services are subject to usage limits, including, for example, the tiers of Active Lives specified in this Agreement. Unless otherwise specified, (a) the quantity of Active Lives provided to the Subscriber will not exceed the number of Users set forth in the Agreement; (b) an Internal User’s password may not be shared with any other individual, and (c) at Subscriber’s discretion, licenses may be activated and de-activated from time to time by notice in writing to Mozzaz. If the Subscriber exceeds the allotted Active Lives specified the Agreement, Mozzaz shall have the right to increase the amount of Fees payable by the Subscriber in accordance with the Agreement pricing provisions. Subscriber is solely responsible for ensuring that Internal User credentials are used only by the Internal User authorized to utilize the same and Mozzaz takes not liability for any misuse of Internal User credentials by the Subscriber or one of its Users. As it is the Subscriber and applicable Internal User’s responsibility to safeguard Internal User credentials, any use of the Services under a set of Internal User credentials will be attributed to such Internal User (and to the Subscriber authorizing such Internal User) regardless of whether such Internal User actually utilized such credentials.
3.3. Subscriber’s Responsibilities. Subscriber will (a) be responsible for Internal Users’ compliance with this Agreement; (b) be responsible for the collection, accuracy, quality and legality of Subscriber’s Data; (c) be responsible and the means by which Subscriber acquired Subscriber Data (and External User Data to the extent it directly collects the same), (c) use commercially reasonable efforts to prevent unauthorized access to or use of Subscription Services, and notify Mozzaz promptly of any such unauthorized access or use, and (d) use the Subscription Services only in accordance with the Documentation, the terms of this Agreement and applicable laws and government regulations.
3.4. Usage Restrictions. Except as specifically provided for herein, Subscriber will not (a) make any Subscription Service available to, or use any Subscription Service for the benefit of, anyone other than Subscriber or Users without the prior written consent of Mozzaz; (b) sell, resell, license, sublicense, distribute, rent or lease any Subscription Service, or include any Subscription Service in a service bureau or outsourcing offering; (c) use a Subscription Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a Subscription Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Subscription Service or third-party data contained therein; (f) attempt to gain unauthorized access to any Subscription Service or its related systems or networks; (g) permit direct or indirect access to or use of any Subscription Service in a way that circumvents a contractual usage limit; (h) copy a Subscription Service or any part, feature, function or user interface thereof (except as otherwise permitted herein or the Documentation), (i) frame or mirror any part of any Subscription Service, other than framing on Subscriber’s own intranets or otherwise for Subscriber’s own internal business purposes or as permitted in the Documentation; (j) access any Subscription Service in order to build a competitive product or service; (k) reverse engineer any Subscription Service (to the extent such restriction is permitted by law); (l) access the Subscription Services if Subscriber is a direct competitor of Mozzaz, except with Mozzaz prior written consent; or (m) access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.6. Support Levels. Mozzaz will provide the support services for the Subscription Services as set out in Schedule C hereto.
4. NON-MOZZAZ SOLUTIONS
4.1. Acquisition of Non-Mozzaz Products and Services. Subscriber or a User may use Non-Mozzaz Applications in conjunction with the Subscription Services. Any use by Mozzaz, Subscriber, or a User of such Non-Mozzaz Applications in connection with the Subscription Services, and any exchange of data between Subscriber and any provider of a Non-Mozzaz Application (a “Non-Mozzaz Provider”), constitutes a relationship solely between Subscriber (or the applicable User, as the case may be) and the applicable Non-Mozzaz Provider. Mozzaz provides no warranties whatsoever regarding any Non-Mozzaz Applications and Subscriber agrees that such Non-Mozzaz Applications are to be used in an “as-is” basis in connection with the Subscription Services, whether or not such Non-Mozzaz Applications are designated by Mozzaz as “certified”. To use such a Non-Mozzaz Application in conjunction with the Subscription Services, Subscriber may be required to obtain access to Non-Mozzaz Applications from the provider or such Non-Mozzaz Application and may be required to grant Mozzaz access to Subscriber account(s) on the Non-Mozzaz Applications. Notwithstanding anything contained herein to the contrary, Mozzaz does not warrant that the Subscription Services will function properly when integrated with a Non-Mozzaz Application and shall have no liability whatsoever to the Subscriber or any User in the event that the Subscription Services do not function properly when integrated with a Non-Mozzaz Application.
4.2. Non-Mozzaz Applications and Subscriber’s Data. If Subscriber installs or enables a Non-Mozzaz Application for use with a Subscription Service, Subscriber grants Mozzaz permission to allow Mozzaz use of that Non-Mozzaz Application to access User Data as required for the interoperation of that Non-Mozzaz Application with the Service and warrants to Mozzaz that such grant of permissions is authorized pursuant to the agreement between the Subscriber and the applicable Non-Mozzaz Provider in relation to such Non-Mozzaz Application. Mozzaz is not responsible for any disclosure, modification or deletion of User Data resulting from access by a Non-Mozzaz Application.
4.3. Data Systems. The Subscription Services do not include data extract, data import, and content programs required to upload/download data between applicable data repositories relating to the Subscription Services and Subscriber’s internal systems (collectively the “Data Systems”). In the event that Subscriber desires Mozzaz to develop the Data Systems, it shall enter into a SOW detailing the particulars of the same, which SOW shall be agreed to in writing by and between the Subscriber and Mozzaz. In the event that the Subscriber shall develop (or cause to be developed by an entity other than Mozzaz or its Affiliates) the Data Systems, Mozzaz shall not be responsible for the functioning of the Data Systems, regardless of whether they are developed in accordance with the specifications provided by Mozzaz or otherwise.
5. PROPRIETARY RIGHTS AND LICENSES
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Mozzaz and its licensors reserve all of their right, title and interest in and to the Subscription Services and the Professional Services, including all of Mozzaz’/their related intellectual property rights. No rights are granted to Subscriber hereunder other than as expressly set forth herein.
5.2. License by Mozzaz to Use Content. Mozzaz grants to Subscriber a royalty free, limited-term license, under Mozzaz’ applicable intellectual property rights and licenses, to use the Content subscribed for pursuant to this Agreement and the Documentation.
5.3. License by Subscriber to Host Subscriber’s Data and Applications. Subscriber grants Mozzaz and Mozzaz’ Affiliates a, limited-term license to host, copy, transmit and display Subscriber Data, and any Non-Mozzaz Applications and program code created by or for Subscriber using or integrated with a Subscription Service, as necessary for Mozzaz to provide the Subscription Services or the Professional Services in accordance with this Agreement. Subject to the limited licenses granted herein, Mozzaz acquires no right, title or interest from Subscriber or Subscriber’s licensors under this Agreement in or to Subscriber Data of any Non-Mozzaz Application or program code. In the event that the Subscriber is granting Mozzaz a license to use a Non-Mozzaz Application in connection with the Subscription Services, it represents and warrants that it has the ability to do so and that the granting of such license will not violate the terms of any agreement to which the Subscriber is a party nor the provisions of any applicable laws.
5.4. License by Subscriber to Use Feedback. Subscriber grants to Mozzaz and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Subscriber or Users relating to the operation of the Services.
5.5. Pre-existing Materials. Subscriber acknowledges that, in the course of providing the Subscription Services or the Professional Services, Subscriber may be given access to software and related processes, instructions, methods, and techniques that have been previously developed by Mozzaz or which are developed by Mozzaz outside of the Subscription Services and Professional Services (which form part of their generally available commercial offerings) (collectively, the “Pre-existing Materials”). Subscriber agrees and acknowledges that such Pre-existing Materials remain the sole and exclusive property of Mozzaz, notwithstanding the extent to which they are integrated with or provided as part of the Subscription Services or Professional Services.
6.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Subscriber’s Confidential Information includes Subscriber Data; Mozzaz’ Confidential Information includes the Subscription Services, the Professional Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party will disclose the terms of this Agreement or Additional Document to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
6.3. Data Protection. Subscriber covenants and agrees to ensure compliance by all persons having access to the Subscription Services or the Professional Services (other than Mozzaz, its Affiliates and their personnel) with all applicable confidentiality legislation and data protection legislation, including without limitation the Health Insurance Portability and Accountability Act (US) and any other statutory obligations relating to the storage of and access to confidential information.
6.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.5. Cooperation to Prevent Disclosure of Confidential Information. Both Parties will each use their best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each Party shall advise the other immediately in the event it learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each Party will cooperate with the other Party in seeking injunctive or other equitable relief against any such person.
6.6. Subscriber Data. Subscriber Data or any derivatives thereof, contained in any repository (which shall also be known and treated by Mozzaz as Confidential Information) shall be and remain the person providing such information’s sole and exclusive property (including any PHI). The proper collection, use and disclosure of any use of the data created or delivered through the use of the Subscription Services by Subscriber, including use by any User, is Subscriber’s sole responsibility and Subscriber shall ensure that such collection, use and disclosure is conducted in accordance with the terms of any applicable law and any contractual provisions by which it is bound. Mozzaz will have no responsibility for inputting Subscriber Data. The Subscriber Data and the accuracy and adequacy thereof shall be Subscriber’s sole responsibility and Mozzaz assumes no responsibility for the same. Subscriber shall be entitled to request an export of Subscriber Data by Mozzaz (in consideration of which Mozzaz shall be entitled to charge a commercially reasonable fee), upon the termination of this Agreement or at any other time on Subscriber’s reasonable request and the Parties shall enter into a SOW setting out the terms of such export prior to any such work being undertaken by Mozzaz. Subscriber is providing Mozzaz hereunder with a license to use the Subscriber Data for the purpose of providing the Subscription Services to Subscriber, including permission to store, record, transmit, maintain, and display to the extent necessary in the provisioning of the Subscription Services.
6.7. No License. Except as expressly set forth herein, no license is granted by either Party to the other with respect the Confidential Information, Pre-existing Materials, or Subscriber Data. Nothing in this Agreement shall be construed to grant to either Party any ownership or other interest, in or to the Confidential Information, Pre-existing Materials, Subscriber Data, except as may be explicitly provided in writing with respect to such Confidential Information, Pre-existing Materials, or Subscriber Data.
6.8. Media Releases. Neither Party shall issue any media releases, public announcements and public disclosures relating to this Agreement or use the name or logo of the other Party, including, without limitation, in promotional or marketing material or on a list of customers.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1. Mozzaz Warranties. Mozzaz warrants that (i) the Software, when used in accordance with the Documentation, will substantially conform to the description of the Software’s operations in the Documentation; (ii) the Documentation is complete and accurate; (iii) the Software does not contain any material undocumented feature; (iv) the Software will perform according to any agreed-upon specifications, provided that the same are reduced to writing; (v) all Subscription Services and Professional Services will be provided in a timely, workmanlike manner, in conformity with industry best practices; (vi) adequate training (as specifically set out in an Additional Document) on use of the Software will be provided by Mozzaz from time to time; (v) Mozzaz will not share or disclose any Subscriber Data to any third party without first obtaining such User’s prior written consent as well as consent of Subscriber; and (vi) the Software will be free from Malicious Code. Except as set forth in the Support Services Agreement, Mozzaz does not warrant that use of the Software will be uninterrupted or error free, or that all errors will be corrected but does warrant that it will use its commercially reasonable efforts to minimize any interruption to the Software. Mozzaz warrants that the Software and the Subscription Services do not infringe the patents, copyrights, trademarks of a third party, do not misappropriate a third party’s trade secret and do not violate the intellectual property rights of any third party.
7.2. Sole Remedy. Except as specifically set forth in the Schedule C - Support Services, the Parties hereto agree that Subscriber’s exclusive remedy and Mozzaz’s sole liability under this Section 8 shall be for Mozzaz to attempt through its commercially reasonable efforts to correct any material failure of the Software to perform as warranted, if such failure is promptly reported to Mozzaz and, at Mozzaz’s request, Subscriber provides Mozzaz with sufficient information to reproduce or verify the defect in question. No defect which is caused due to the misuse of the Software or failure to use the Software in accordance with this Agreement or the Documentation will be remedied by Mozzaz pursuant to this Section 8.2. If Mozzaz cannot, after reasonable efforts, remedy such failure, Subscriber may terminate this Agreement. In such event, Subscriber will not be obligated to pay the applicable Fee which would have been payable on account of use of the Software during any time period(s) in which such defect existed, and Mozzaz shall refund any pre-paid Fees for the remainder of the Term.
7.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Mozzaz. Mozzaz shall indemnify, defend, and hold harmless Subscriber, its Affiliates, and their respective officers, directors, employees, representatives, agents, successors and permitted assigns from and against any and all claims made or threatened by any third party and all related losses, expenses, damages, costs and liabilities, including reasonable attorneys' fees and expenses incurred in investigation or defense (“Damages”), to the extent such Damages arise out of or relate to any breach in a representation, covenant, or obligation of Mozzaz contained in this Agreement.
8.2. Mozzaz’ Responsibility re: Intellectual Property Claims. Mozzaz shall defend or settle at its expense each threat, claim, suit or proceeding (collectively, a “Claim”) arising from or alleging infringement, misappropriation, or other violation of any Intellectual Property rights, copyrights, patents, trademarks, trade secrets, or any other rights of any third party based upon or otherwise attributable to the Subscription Services or Professional Services furnished under this Agreement (except to the extent that the Subscriber has modified such Subscription Services or integrated content not provided by Mozzaz with such Subscription Services, including integrating with the Subscription Services a Non-Mozzaz Application, and such Claim is related to such modifications, a “Modification Claim”). Mozzaz shall indemnify and hold Subscriber, its Affiliates and each of their officers, directors, employees, agents, successors, permitted assigns, representatives, and customers harmless from and against and shall pay any and all Damages attributable to each such Claim. If any Subscription Services or Professional Services furnished under this Agreement, including, without limitation, software, system design, equipment or documentation, becomes, or in Subscriber’s or Mozzaz' reasonable opinion is likely to become, the subject of any Claim arising from or alleging facts that if true would constitute infringement, misappropriation, or other violation of any Intellectual Property rights or any other rights of a third party, or in the event of any adjudication that such Subscription Service infringes, misappropriates, or otherwise violates any Intellectual Property rights or any other rights of a third party (except with respect to a Modification Claim), Mozzaz, at its own expense, shall take the following actions in the listed order of preference: (a) use its commercially reasonable efforts to secure for Subscriber the right to continue using the Subscription Services at no additional charge to Subscriber; or (b) if commercially reasonable efforts are unavailing, replace or modify the Subscription Services to make the same non-infringing; provided, however, that such modification or replacement shall not degrade the operation or performance of the Services.
8.3. Indemnity Obligations of Mozzaz re Intellectual Property. Notwithstanding the provisions of Section 9.3 hereof, Mozzaz will indemnify, defend, and hold harmless Subscriber and its directors, officers, employees, or agents, from and against any claim against any of them that the Software and/or Documentation infringes any US Intellectual Property Rights (except to the extent that such claim is a Modification Claim), provided that (i) Mozzaz is given prompt notification of such claim, (ii) Mozzaz is given necessary information and assistance and sole authority to defend or settle such claim; provided that Subscriber must approve the terms of any settlement or compromise that may impose any unindemnified or nonmonetary liability on Subscriber. and (iii) such claim does not arise from use or combination of the Software with other programs or data not supplied by Mozzaz.
8.4. Limitation of Indemnification Obligations. The indemnity in Section 9 shall not extend to any claim of infringement resulting solely from Subscriber's unauthorized modification of the Subscription Services or from Subscriber's use of the Subscription Services in a manner (i) for which the Subscription Services are not designed; or (ii) which is not in accordance with this Agreement or any of the Documentation.
8.5. Notice of Claims. Subscriber shall give Mozzaz notice of, and the Parties shall cooperate in, the defense of each Claim referred to in Sections 9.1 through 9.4 including appeals, negotiations and any settlement or compromise thereof; provided that Subscriber must approve the terms of any settlement or compromise that may impose any unindemnified or nonmonetary liability on Subscriber.
8.6. Exclusive Remedy re: Intellectual Property. The foregoing provisions state the exclusive remedy of Subscriber and Mozzaz’ entire liability with respect to infringement of patents, copyrights, trade secrets or other proprietary rights.
8.7. Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Mozzaz and its directors, officers, employees or agents, from and against any Claim against any of them relating to the Subscriber’s breach of this Agreement, including, but not limited to, (i) a Modification Claim; or (ii) any Claim relating to the misuse by Subscriber of Subscriber Data. Subscriber shall indemnify and hold Mozzaz, its Affiliates and each of their officers, directors, employees, agents, successors, permitted assigns and representatives, harmless from and against such Claims and shall pay any and all Damages attributable to each such Claim, provided that (i) Subscriber is given prompt notification of such claim, (ii) Subscriber is given necessary information and assistance and sole authority to defend or settle such claim; provided that Mozzaz must approve the terms of any settlement or compromise that may impose any unindemnified or nonmonetary liability on Mozzaz.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE GREATER OF THREE (3) TIMES THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR ONE-MILLION DOLLARS.THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, NEITHER PARTY LIMITS OR EXCLUDES ITS LIABILITY IN RESPECT OF CLAIMS, LOSSES OR DAMAGES ARISING FROM: (I) GROSS NEGLIGENCE OF A PARTY; (II) THE INTENTIONAL OR WILLFUL MISCONDUCT OF A PARTY; (III) ANY FRAUD OR FRAUDULENT MISSTATEMENT; (IV) THE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT AND/OR ANY BUSINESS ASSOCIATE AGREEMENT BETWEEN THE PARTIES; (V) OBLIGATIONS UNDER THE AGREEMENT AND/OR ANY BUSINESS ASSOCIATE AGREEMENT BETWEEN THE PARTIES RELATED TO DATA PROTECTION, SECURITY OR CONFIDENTIALITY (VI) OBLIGATIONS UNDER THE AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS; (VII) ANY OTHER STATUTORY OR OTHER LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW; OR (vii) SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. NOTICES, GOVERNING LAW AND JURISDICTION
10.1. General. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law rules. Each Party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts of the Commonwealth of Pennsylvania. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
10.2. Notice. All notices and other communications required or permitted hereunder shall be in writing or delivered by facsimile transmission or electronic transmission (including electronic mail) and shall be deemed given when (i) delivered personally or by overnight receipted courier to the following address of the other party hereto (or such other address for such party as shall be specified by notice given pursuant to this Section) or (ii) on the second business day after sent by certified mail, return receipt requested, postage prepaid; or (iii) on the second business day after confirmed facsimile or electronic transmission:
If to Mozzaz, to:
1700 Market Street, Suite 1005
Philadelphia PA 19103
Attn: Mr. Sammy Wahab, CEO
If to Subscriber, as documented in Subscriber Notifications in the MLSA.
11. GENERAL PROVISIONS
11.1. Export Compliance. The Subscription Services, Professional Services, Content, Software and a any other technology Mozzaz makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit Users to access or use any Subscription Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
11.2. Anti-Corruption. Subscriber has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Mozzaz employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Subscriber learns of any violation of the above restriction, Subscriber will use reasonable efforts to promptly notify Mozzaz’ Legal Department at firstname.lastname@example.org.
11.3. Amendment. The provisions of this Agreement may be amended or waived only by the written agreement, duly signed by authorized representatives of each Party and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement. However, amendments determined by Subscriber to be necessary to effect compliance with legislative, regulatory or other legal authority (a “Regulatory Amendment”) do not require the consent of Mozzaz and shall be effective as stated in Subscriber’s notice of such regulatory amendment. Notwithstanding, if such Regulatory Amendment materially alters the terms of this Agreement, Mozzaz shall be entitled to terminate this Agreement on five (5) days’ written notice to Subscriber, and then Subscriber shall be entitled to a refund of all pre-paid Fees paid for the remainder of the Term and shall not owe any fees to cover the period after the effective date of termination.
11.4. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Additional Documents), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets (provide that such merger, acquisition, corporate reorganization, or sale is approved in writing by the other Party, such approval not to be unreasonably withheld). Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party or to a company that the other Party is in litigation or has another verifiable bona fide dispute with, then such other Party may terminate this Agreement upon written notice. In the event of such a termination, Mozzaz will refund to Subscriber any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.5. Force Majeure. Neither Party will be responsible for any failure or delay in performance of this Agreement if the failure or delay is due to an event beyond the reasonable control and without the fault or negligence of the Party seeking to excuse performance, including without limitation, acts of God, acts of terrorism, war, labor disputes and strikes, fire, flood, riot, and unforeseen delays in third-party provided transportation or communications (a "Force Majeure Event"). Any Party seeking to excuse or delay performance due to a Force Majeure Event under this Section will provide detailed written notice to the other Party of the nature and anticipated duration of the delay. A Party claiming the benefit of a Force Majeure Event shall use reasonable efforts to avoid or overcome the causes affecting performance and diligently fulfill all outstanding obligations within thirty (30) days. In the event that any such Force Majeure Event continues for in excess of sixty (60) days, either Party shall have the right to terminate this Agreement upon thirty (30) days’ notice to the other Party, provided that, if the Force Majeure Event ceases within such thirty (30) day period, this Agreement shall remain in full force and effect upon prior written notice to the other Party.
11.6. Non-Solicitation of Personnel. During the term of this Agreement and for a period of one (1) year thereafter, neither Party (or any of their Affiliates) shall, either directly or indirectly, on its own behalf or on behalf of others, solicit, divert or hire away, or attempt to solicit, divert, or hire away, any person employed by the other party (or any of its affiliates), whether or not such employee is a full-time employee or a temporary employee of, consultant to, or independent contractor to such party (or any of its Affiliates) and whether or not such employment or engagement is pursuant to written agreement and whether or not such employment or engagement is for a determined period or is at will, provided however, this clause shall not prohibit either party from soliciting or hiring any person who responds to a general advertisement or solicitation, including but not limited to advertisements or solicitations through newspapers, websites, job boards, trade publications, periodicals, radio or internet databases, or efforts by any recruiting or employment agencies, not specifically directed at employees, temporary employees, consultants and/or independent contractors of the other party
11.7. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
11.8. Third-Party Beneficiaries. Any third-party licensing Content to Mozzaz shall have the benefit of Mozzaz’ rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
11.9. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.10. Severability. If any provision of this Agreement is found to be illegal, invalid, unconscionable, or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable. This Agreement shall be construed and enforced to the fullest extent legally permissible without transgressing the bounds of enforceability due to such illegal, invalid, unconscionable, or unenforceable provision. All other provisions shall remain in full force and effect unaffected by such severance; provided that the invalid provision is not material to the overall purpose and operation of this Agreement, in which case this Agreement may be immediately terminated by either party upon written notice to the other party.
11.11. Audit Rights. Subscriber shall maintain books of accounting concerning the exploitation of the Content, the Subscription Services and the Professional Services. A certified public accountant or representative with experience in conducting financial audits may, on Mozzaz’ behalf and at Mozzaz’ sole expense, examine said books of account solely for the purpose of verifying the accuracy thereof and compliance with the terms of this Agreement, only during Subscriber's normal business hours and upon reasonable written notice. Subscriber’s books of accounts may only be examined as aforesaid within one (1) year after the date a payment was rendered to Mozzaz. The audit and results thereof shall be confidential and not revealed to any third party not similarly bound by a requirement of confidentiality without the prior written consent of Subscriber except as may be required in a court proceeding by lawful order of the court. Mozzaz shall present a copy of any audit report to Subscriber and Subscriber shall have a reasonable opportunity to contest such report. Mozzaz will reimburse Subscriber on demand for any overpayments, and Subscriber may also deduct the amount thereof from any monies payable to Mozzaz under this Agreement or any other agreement between the Parties. Subscriber will reimburse Mozzaz on demand for any underpayments. All audits shall be at the sole expense of Mozzaz unless such audit reveals an underpayment of more than ten percent (10%), in which case, the costs of such audit shall be borne exclusively by the Subscriber. The terms and conditions specified in this Section 13.11 shall constitute Licensor’s only audit rights and accounting remedies.
Subscriber or its designee shall have the right, but not the obligation, to audit, inspect and copy, during regular business hours at Subscriber's cost, any books and records Mozzaz or its subcontractors maintain pursuant to this Agreement, exercisable upon ten (10) days' written notice to Mozzaz and/or subcontractor(s); provided that such inspection is not prohibited by applicable law. Subscriber shall have the right to audit any aspect of the processes, procedures, and documentation related to the Services that Mozzaz or its subcontractors perform as described in this Agreement or Change Orders, as well as any requirement to comply with any requirements in this Agreement, or Change Order, or any attestation made on behalf of Mozzaz or its subcontractors to Subscriber. Further, Mozzaz agrees to make all such books and records available to Subscriber’s auditors and agents, the Department of Health and Human Services, the Comptroller General, applicable State regulatory authority, or their designees to audit, evaluate and inspect in accordance with 42 C.F.R. §423.505 and applicable State law. As part of any audit Mozzaz and/or subcontractor shall make its personnel performing Services available to Subscriber or its designee. Subscriber or its designee shall have the right to audit Mozzaz’ use of Subscriber’s Confidential Information or Protected Health Information, as defined in 45 C.F.R. 164.103 (“PHI”), upon seventy-two (72) hours' prior written notice to Mozzaz and/or subcontractor. In case of error (e.g., more than 10% discrepancy in favor of Mozzaz) then Mozzaz shall be required to reimburse Subscriber for cost of audit.
11.12. Disputes. All disputes relating to the Agreement will initially be referred by either Party to the other Party to attempt to reach a resolution. If the Parties are unable to resolve the dispute within five (5) business day(s) (or any other agreed upon timeframe), the Parties will notify their respective senior management of the dispute. Senior management may, if both Parties agree, meet to resolve the dispute, but if they are unable to resolve the dispute then (regardless of whether a meeting occurs) within ten (10) business days of referral (or such other period as the Parties may agree), the Parties must submit the matter to mediation as per the terms of this Section.
If the Parties reach the mediation stage of dispute resolution, the matter will be heard by a single mediator chosen by the Parties. If the Parties cannot agree upon an acceptable mediator within ten (10) days of termination of the negotiations under Section 17.1, each Party will select one (1) mediator from a list of not less than five (5) mediators provided by the other Party. These two (2) mediators will select a third (3rd) mediator who will serve as the sole mediator. Subject to the availability of the mediator, the mediation will occur not more than thirty (30) days after the request for mediation. The mediation process will continue until the dispute (or any part thereof) is resolved or until such time as the mediator makes a finding that there is no possibility of resolution short of pursuing other available legal and equitable remedies consistent with the Agreement. The mediation will be held in Philadelphia, Pennsylvania, unless the mediator, on his/her own initiative, wishes to conduct any mediation proceeding by telephone, facsimile transmission or other means of communication. The cost of mediation, including the mediator's fees and expenses, will be shared equally by the Parties. Each Party will have the right to be represented by attorneys of their own choosing to advise them before and during the mediation process and their attorneys may review any settlement agreement, or other agreement, which the Parties have reached through mediation, prior to the execution of such agreement. The Parties agree that the mediator is acting in a neutral capacity and is not serving as an attorney, advocate, representative or fiduciary for either or both of them. Each Party will pay its own attorney's fees and costs. In connection with the mediation process, the mediator may meet in confidential "caucus" sessions separately with each Party. The mediator will be obligated to treat as confidential and refrain from disclosing to the other Party or its counsel any information conveyed to the mediator during the caucus sessions unless the Party conveying such information authorized the mediator to disclose it to the other Party.