envoyatHome, Inc. PARTNER SERVICES AGREEMENT
Last Modified: [2020-03-20]
PARTNER SERVICES AGREEMENT
This Partner Services Agreement (this “Agreement”) is by and between envoyatHome, Inc., a Delaware corporation (“Company”), and the customer whose name is indicated on the registration form (“Customer”), and is effective as of the date on which the Customer clicks the “Accept” button on the registration form (the “Effective Date”). By clicking the “Accept” button on the registration form, Customer agrees to accept and comply with the terms and conditions set forth in this Agreement.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Company’s Terms of Service available for inspection at www.envoyathome.com/terms-of-service. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer will designate one individual as the primary user of administrative user name and password (the “Customer Contact”), and designate that individual as the primary Customer Contact for technical support services. Should the designee be unable to continue to serve as the Customer Contact, Customer will designate a replacement.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files and data, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.4 Customer represents, warrants, and covenants to Company that: (a) if Customer is an individual, Customer is 18 years of age or older and has valid authority to enter into and perform this Agreement; (b) if Customer is an entity, Customer is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of Customer’s incorporation or other organization and has valid authority to enter into and perform this Agreement; (c) when executed and delivered, this Agreement will constitute Customer’s legal, valid and binding obligations enforceable against it in accordance with the terms hereof; and (d) Customer is authorized, and has full right and power from the Care Receiver, to grant permission and access (i) to install the Virtual Caregiving Equipment Package in the Care Receiver’s home, and (ii) to monitor the Care Receiver through the Services. “Care Receiver” means any person that receives care through the use of the Services, including, but not limited to, the person whose name is indicated on the registration form as the “Care Receiver.”
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes, but is not limited to, non-public information regarding features, functionality, monitoring and performance of the Services. Proprietary Information of Customer means non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 In connection with the Services, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights thereto. “Resultant Data” means any data and information related to Customer’s use of the Services that is used by Company in an aggregate and anonymized manner to compile statistical and performance information in connection with this Agreement.
3.3 Customer Data; Consent to Use Customer Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Company and its agents’ to enforce this Agreement and exercise Company’s and its agents’ rights and to perform Company’s and its agents’ obligations hereunder. Customer acknowledges and agrees that Company is processing data on Customer’s behalf, and is not a controller of data received from Customer with respect to Care Receivers. Customer represents and warrants that it does, and covenants that it shall, throughout the Term comply with all applicable privacy laws. Customer represents and warrants that it has, and covenants that it shall maintain throughout the Term, appropriate policies and agreements in place, and has and will make all required disclosures to and obtain consents from, Care Receivers, to allow such processing and so that Customer can grant all rights hereunder, including with respect to Customer Data and Resultant Data. Customer will defend, indemnify and hold Company (and its officers, directors, employees, agents and representatives and affiliates) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising from any third party claim, suit, action or proceeding arising from (i) any violation of the foregoing, (ii) any allegation that the Resultant Data, Customer Data or other data, content or information supplied by Customer or Care Receiver infringes the intellectual property rights, privacy or other rights of a third party or has caused harm to a third party, or (iii) claims Customer or Care Receivers’ use of the Services, Software or Equipment is in violation of the law, including but not limited to privacy laws. “Customer Data” means any information and data, other than Resultant Data, that is collected, downloaded, or otherwise received from Customer or Care Receiver by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
3.4 Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.5 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of all aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”) in U.S. dollars in immediately available funds using a Visa, Mastercard or American Express Credit Card, or by wire transfer, or in any such other manner as Company may approve, notwithstanding any inability of Customer to collect payment from Care Receiver. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment or a material breach of the terms or conditions of this Agreement).. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- 3 During the Term and for a period of three (3) years thereafter, neither Customer nor any of its employees, agents or consultants shall (i) disparage the Company, its business, services (including Services), equipment and products (including the Equipment, Software and Virtual Caregiving Equipment Package), or personnel, or (ii) otherwise negatively affect or harm the reputation of the Company or its personnel.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER SHALL NOT MAKE ANY WARRANTIES TO CARE RECEIVER AS TO THE SERVICES.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, DIRECTORS, SHAREHOLDERS, ADVISORS, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE HELD HARMLESS AND NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S CONTROL; (D) FOR ANY BREACH OF THIS AGREEMENT CAUSED BY CUSTOMER’S EMPLOYEES, DIRECTORS, OFFICERS, REPRESENTATIVES, CONTRACTORS OR AGENTS; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.