May 18, 2020
Subscription Services Agreement
This Subscription Services Agreement (the “Agreement”) is between CareIT Health, LLC, d/b/a NowPow (“NowPow”), and Licensee (as defined below). This Agreement is effective as of the Effective Date of the COPE Agreement.
Licensee has entered into an agreement with COPE Healthcare Consulting, dba COPE Health Solutions (“COPE”), pursuant to which COPE provides Licensee with access to, among other things, the Services described herein (the “COPE Agreement”). “Licensee” is the customer identified in the COPE Agreement.
NowPow provides cloud-based software tools and services, collective referred to as the (“Services”).
- PowRx allows users to search for individual services; generate and curate matched lists of resources, HealtheRxs; and share these referrals with individuals via printing.
Licensee wishes to make Services available to Licensee’s workforce members. NowPow wishes to provide Licensee with access to Services for this purpose in accordance with the terms of this Agreement. Your use and access of the Services indicates your agreement to this Agreement.
The parties agree as follows:
- AUTHORIZED USERS. NowPow will provide Licensee with access to the Services for use by Licensee’s workforce members, including employees and contractors, that are authorized by Licensee to use the Services (“Authorized Users”). Each Authorized User may have to view and agree to an acknowledgement upon sign in to the Services, which addresses appropriate use and restrictions for use of the Services. NowPow may change the acknowledgement from time to time, but it will be similar to the acknowledgement in Exhibit A-1. Licensee must limit access to the Services only to its Authorized Users. Licensee is responsible for all acts and omissions of Authorized Users. This includes responsibility for the Authorized Users’ compliance with this Agreement and for any activity on the Services by the Authorized Users or anyone using the passwords and accounts of Licensee or the Authorized Users, even if the access and use is not authorized by Licensee. Licensee agrees to any usage restrictions (including number of licenses) included in the COPE Agreement.
- LICENSE. Subject to the terms of this Agreement, NowPow grants Licensee and its Authorized Users a limited, revocable, nontransferable, nonassignable, nonexclusive license to access and use the Services. The license is solely for Licensee’s internal business purposes.
- BUSINESS ASSOCIATE AGREEMENT; HIPAA COMPLIANCE. Data provided by Licensee or Authorized Users in the course of accessing or using the Services, or otherwise collected through the Services, that consists of Protected Health Information is subject to the Business Associate Agreement between you and COPE. Licensee will ensure that any use and disclosure of Protected Health Information for any purpose, including research, is in accordance with the Health Insurance Portability and Accountability Act (“HIPAA”). You give COPE the right to permit NowPow to create de-identified information from the Protected Health Information.
- USER RESTRICTIONS.
- (a) Licensee will: (i) comply with all laws that apply to its access to or use of the Services including obtaining all individual consents or authorizations required by applicable laws to collect and transmit data and to communicate with the individual using the Services (including HIPAA, the Telephone Consumer Protection Act (TCPA), and CAN-SPAM); (ii) transmit only accurate and complete data using the Services; (iii) be responsible for transmitting HealtheRxs to the applicable individual; and (iv) set up, maintain, and operate all information technology infrastructure, computer, and network systems in good repair.
- (b) Licensee must not: (i) copy the Services or any part of the Services; (ii) modify, correct, adapt, translate, enhance, or prepare derivative works of the Services; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or make available the Services to any other person in any way. This includes through the Internet or in any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iv) reverse-engineer, reconfigure, disassemble, decompile, decode, or adapt the Services or attempt to derive or gain access to the source code of the Services; (v) bypass or breach any security device or protection used in the Services; (vi) remove, alter, obscure, supplement, or change any trademarks, service marks, or other intellectual property notices in the Services; (vii) use the Services in a way that infringes, misappropriates, or violates the intellectual property rights of any person; (viii) use the Services for benchmarking or competitive analysis of the Services, developing, using, or providing a competing software product or service, or any purpose that is to NowPow’s detriment or commercial disadvantage; or (ix) use the Services for any purpose not permitted by this Agreement.
- CONFIDENTIALITY. “Confidential Information” means the Services and any information disclosed to Licensee or obtained in connection with the Services or this Agreement by or on behalf of NowPow, whether or not identified as “confidential,” that NowPow considers or protects as confidential and that is reasonably understood to be confidential given the content of the information and the circumstances of disclosure. Licensee must not use the Confidential Information for any purpose except as necessary to use the Services as permitted by this Agreement. Licensee may not disclose the Confidential Information except to Authorized Users. Licensee will use the same measures to protect the Confidential Information from unauthorized use and disclosure as it uses to protect its own most confidential information, but in no event less than a reasonable degree of care. If a third-party requests that Licensee disclose the Confidential Information under a subpoena, summons, search warrant, governmental order, or other similar process, Licensee will notify NowPow in writing promptly upon its receipt of the request if permitted by law. Licensee will also, at NowPow’s expense and if requested by NowPow, cooperate with NowPow in resisting the release of the Confidential Information. It is the understanding of the parties that Protected Health Information is governed by the Business Associate Agreement and is not Confidential Information as that term is defined in this section.
- LICENSEE ACCOUNTS. Licensee must maintain the confidentiality of any information used in connection with the Services, including usernames and passwords. If Licensee has any reason to believe that any Authorized User username or password has been compromised, Licensee will immediately notify NowPow at the email address below.
- INTELLECTUAL PROPERTY RIGHTS. The Services (including their text, audio, video, graphics, charts, photographs, interfaces, icons, other content, software, computer code, data, trademarks, logos, slogans, documentation, other components, and the design, selection, and arrangement of content) are exclusively the property of NowPow or, as applicable, its suppliers and licensors, and are protected by copyright, trademark, and other intellectual property laws. Any unauthorized use of any trademarks, trade dress, or any other intellectual property belonging to NowPow or any third party is strictly prohibited and may be prosecuted to the fullest extent of the law. The Services may contain references to third-party marks and copies of third-party copyrighted materials, which are the property of their respective owners. Licensee may not, without NowPow’s prior written consent, use the names, logos, or trademarks of NowPow. NowPow may use Licensee’s names, logos, and trademarks for marketing and publicity purposes and in NowPow’s ecosystem reports. NowPow may use any data submitted by Licensee to the Services in its ecosystem reports that are provided to third-parties.
- SUPPORT; MODIFICATION TO SERVICES. Support for the Services will be provided according to NowPow’s Service Level Agreement (“SLAs”), which is located at https://nowpow.com/legal/sla.html. NowPow may change the SLAs from time to time. NowPow may, in its sole discretion, modify the Services at any time.
- NO WARRANTY. NowPow does not make any warranty or representation to Licensee or any other person that the resources listed in the Services (including in any HealtheRx) will be available to any individual, will be usable by any individual, or will improve any individual’s health or wellness. Licensee’s receipt and use of the Services is at its sole risk. NowPow does not endorse or vouch for the accuracy, completeness, or reliability of any informational content in the Services or the providers of any services referenced in the Services. NowPow does not provide medical services. Except as may be set forth in the SLAs, all Services are provided “as is” and NowPow does not make warranties of any kind with respect to the Services. NowPow disclaims all warranties, express, implied, statutory, or otherwise, including the warranties of merchantability, fitness for a particular purpose, title, and noninfringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, NowPow does not make any warranty that the Services or any results of the use thereof will meet Licensee’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, be secure, accurate, complete, free of harmful code, or error-free, or comply with applicable law or regulation. No advice or information, oral or written, obtained by Licensee or any other person from NowPow, NowPow, or in any manner from the Services creates any warranty.
- NO LIABILITY. To the extent permitted by law, in no event will NowPow or its affiliates, suppliers, or licensors be liable for any direct, indirect, special, incidental, exemplary, punitive, or consequential loss or damage, or any other loss or damage of any kind, arising out of or in connection with the Services or access to or use of the Services (including the input of information into the Services), whether the claim is based in contract, tort (including negligence), strict liability, warranty, or otherwise, and even if NowPow has express knowledge of the possibility of the loss or damage. NowPow will not have any liability for loss of data or documentation or any loss of profits. Licensee’s sole and exclusive remedy is to stop accessing and using the Services. Without limiting the foregoing, if NowPow or any of its affiliates is found liable as a result of any claims or other matters arising out of or in connection with the Services or this Agreement, the maximum liability for all of those claims and other matters will not exceed $100, even if this remedy fails of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of certain damages, so some of the above exclusions and limitations may not apply.
- (a) Licensee will indemnify, defend, and hold harmless NowPow and NowPow’s officers, directors, employees, agents, contractors, representatives, successors, and assigns (collectively, “NowPow’s Indemnitees”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, and expenses of whatever kind, including without limitation reasonable attorneys’ fees (collectively, “Losses”), incurred by NowPow’s Indemnitees in connection with any claim, suit, action, or proceeding by a third party (collectively, “Claims”) that arise out of or relate to: (i) Licensee’s use or non-use of the information obtained from the Services; or (ii) negligence or more culpable act or omission (including recklessness or willful misconduct) by Licensee, Licensee’s Authorized Users, or Licensee’s employees, contractors, or agents.
- (b) NowPow will indemnify, defend, and hold harmless Licensee and Licensee’s officers, directors, employees, agents, contractors, representatives, successors, and assigns (collectively, “Licensee’s Indemnitees”) from and against any and all Losses incurred by Licensee’s Indemnitees in connection with any Claims that arise out of or relate to: (i) NowPow’s negligence or more culpable act or omission (including recklessness or willful misconduct) or (ii) a claim that the Subscription Services or the use of the Subscription Services, as permitted under this Agreement, infringes or misappropriates the United States patent, copyright, trademark, or trade secret rights of any third party. NowPow’s obligation to indemnify Licensee’s Indemnitees for intellectual property infringement is limited to the extent that the claim is based upon: (i) modification of the Services; (ii) unlawful use of the Services; or (iii) use of the Services other than in accordance with this Agreement. If the use of the Services is enjoined by reason of infringement, NowPow may procure, at NowPow’s own expense, the right for Licensee to continue using the Services, or NowPow will modify or replace the enjoined Services with equivalent or better services, so they become non-infringing without adversely altering their functionality. If neither of these options is reasonably available, NowPow will refund any amounts pre-paid by Licensee for the infringing Services that Licensee have not used. The provisions of this paragraph are NowPow’s sole and exclusive obligation and Licensee’s sole and exclusive remedy for intellectual property infringement.
- TERMINATION. NowPow may terminate this Agreement immediately upon breach of this Agreement, including the unauthorized use of a username or password. The term and other termination rights may be set forth in the COPE Agreement or other documentation setting forth your order. Upon expiration or termination, all access to and use of the Services for Licensee and its Authorized Users will immediately cease and the parties will comply with the terms of the Business Associate Agreement. Sections 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, 16, and 18 survive termination of this Agreement.
- NO ASSIGNMENT. Licensee may not assign this Agreement without NowPow’s prior written consent. This Agreement will inure to the benefit of NowPow’s successors and assigns.
- FORCE MAJEURE. NowPow will not be responsible for any delay or other failure to perform that is due to causes beyond its control, including acts of God, acts of a public enemy, terrorism, civil disorders, acts of government, fires, floods, earthquakes, blizzards, and other extraordinary elements of nature.
- REMEDIES. Licensee’s breach of Sections 1, 2, 4, 5, or 7 would cause NowPow to suffer irreparable damage that could not be adequately remedied by an action at law. Accordingly, NowPow will be entitled to injunctive relief without posting a bond, proving damages, or fulfilling similar requirements, in addition to seeking any remedies available at law or in equity.
- GOVERNING LAW; DISPUTES. This Agreement is governed by the laws of the state of California, without regard for its conflict of law principles. Venue for any dispute under this Agreement is exclusively in Los Angeles County, California. Any cause of action or claim with respect to the Services must be commenced within one year after the cause of action or claim arises.
- NOTICES. All notices and other communications permitted or required to be given must be in writing and addressed properly to the recipient. The notices will be effective upon delivery, if personally delivered with fees prepaid, including by a recognized courier service; or upon receipt, if delivered by certified or registered United States mail, postage prepaid and return receipt requested.
- INTERPRETATION. This Agreement, including all exhibits, and the SLAs, is the entire agreement between Licensee and NowPow governing access to and use of the Services. NowPow’s failure to enforce any term of this Agreement will not constitute a waiver of that term or any other term. Any waiver of a term of this Agreement will be effective only if in writing and signed by the party granting the waiver. If any term of this Agreement is held invalid, void, or unenforceable, that term will be considered severable from the remaining terms and the remaining terms will remain in full force and effect. The headings in this Agreement are for convenience only and do not affect the interpretation of this Agreement.