SKILLSPRING™
ONLINE SUBSCRIPTION AGREEMENT
Last modified: August 9, 2019
Subject to the terms and conditions of this agreement (this “Agreement”) we provide:
(1) subscriptions to our SkillSpring “connection as a service” platform (“SkillSpring”),
(2) limited licenses to the HTML/JavaScript code we provide to you for purpose of making SkillSpring accessible for use by individuals via your website (the “Implementing Code”) and to certain mobile applications and desktop client applications associated with SkillSpring that we make available to you (the “Apps” and, together with SkillSpring and the Implementing Code, the “SkillSpring Software”), and
(3) the Services described in further detail below.
SkillSpring may be used to connect, via phone, video conference or other supported communication method, your employees or independent contractors who make themselves available to provide information and advice (“Experts”) with your individual clients or customers who are seeking information or advice (“Consumers”). Additionally, your SkillSpring account may be managed and operated by and through one or more of your individual employees that we have agreed to provide with an “Admin User” account to carry out this purpose on your behalf, including, for example, for the purpose of managing Expert accounts or deploying SkillSpring on your website (each, an “Admin User”). Your Admin Users, Experts, Consumers and any other individual not associated with us that accesses or uses the SkillSpring Software through your account or in connection with your business are collectively referred to throughout this Agreement as “Users.”
1. Acceptance. By registering to use the SkillSpring Software (including, if applicable, by clicking to accept or agree to this Agreement when this option is presented to you) or by otherwise accessing and using (and in the case of the Apps only, downloading and installing) the SkillSpring Software, you also accept the terms of this Agreement and agree you are legally bound by its terms. You should read this Agreement carefully for the terms and conditions that govern your use of the SkillSpring Software and your receipt of the Services. The individual registering to use the SkillSpring Software on your behalf represents and warrants to us that he or she is fully and duly authorized to agree to be bound by this Agreement on your behalf. If you do not agree to this Agreement, do not register to use the SkillSpring Software or otherwise access or use the SkillSpring Software.
2. Changes to this Agreement. We may revise and update this Agreement from time to time in our sole discretion. Via a conspicuous posting within SkillSpring itself or via notice by e-mail to the e-mail address we have on file for you, we will notify you of any material changes to this Agreement. If you do not agree with any changes we make to this Agreement, you may exercise your right to cancel our contract as described below in Section 11. Otherwise, changes to this Agreement are effective immediately when we post them, and your continued use of the SkillSpring Software following the posting of a revised Agreement means that you accept and agree to the changes. You must immediately discontinue access or use of the SkillSpring Software if you do not want to agree to the revised Agreement.
3. Our Services.
a. Services. During the Term, we will use commercially reasonable efforts to provide to you the following services (the “Services”): (i) the hosting, management and operation of SkillSpring for remote electronic access and use by you and your Users; and (ii) the Support Services described in Section 6.
b. Changes to the SkillSpring Software. We may make any changes to the SkillSpring Software that we deem necessary or useful to improve the SkillSpring Software or for any other reason, from time to time in our sole discretion. Such changes may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related Documentation changes, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. All Updates shall be deemed a part of the SkillSpring Software governed by all the provisions of this Agreement pertaining thereto. Based on your mobile device settings, when your mobile device is connected to the Internet either: (i) the Apps will automatically download and install all available Updates pertaining to the Apps; or (ii) you may receive notice of or be prompted to download and install available Updates pertaining to the Apps. You must promptly download and install all Updates and you acknowledge and agree that the Apps or portions thereof may not properly operate should you fail to do so. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality in the SkillSpring Software. If you do not agree with any changes we make to the SkillSpring Software, you may exercise your right to cancel our contract as described below in Section 11.
c. Subcontractors. We may, in our discretion, engage subcontractors to perform Services under this Agreement, but we will remain liable for any act or omission by such subcontractors that would be a breach or violation of this Agreement. You hereby specifically approve and consent to our use of the following subcontractors to perform the described services under this Agreement (including processing of certain portions of Your Data), which such list may be updated from time to time in our sole discretion:
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Subcontractor |
Services Provided |
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Amazon Web Services |
Cloud-based hosting and storage services for SkillSpring. Hosts and stores Your Data that is processed through SkillSpring. More information: https://aws.amazon.com/agreement/ |
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Stripe |
Secure, online payment processing. Processes name, billing address, e-mail address, telephone number and payment card information. More information: https://stripe.com/ssa including for users of Stripe Connect https://stripe.com/connect/legal and including for users of Stripe Checkout https://stripe.com/checkout/legal |
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Twilio |
Communication APIs to connect calls between Experts and Consumers. Processes telephone number. More information: https://www.twilio.com/legal/tos |
d. Suspension of Services. We may suspend or deny your or any User’s access to or use of all or any part of the Services or SkillSpring Software, without any liability to you or others, if (i) we’re required to do so by law or court order; or (ii) you have or any of your Users has (A) accessed or used our Services or the SkillSpring Software beyond the scope of the rights granted under this Agreement or the EULA, (B) been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the SkillSpring Software or any of the Services, (C) failed to comply with the limitations and restrictions described in Section 4.d or as specified in the EULA, (D) failed to cooperate or otherwise comply with the further assurances required of you in Section 9.d, or (E) otherwise failed to comply with this Agreement and have failed to cure such breach within 10 days after we provide written notice to you. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 11.
4. Right to Access SkillSpring Software and Restrictions.
a. License to Implementing Code. Subject to your payment of all applicable fees under this Agreement, and so long as you and your Users otherwise comply with this Agreement, we grant you, during the Term, a limited, non-exclusive and non-transferable right and license, without the right to sub-license, to copy and deploy on your own website the Implementing Code solely in accordance with the Documentation. You must not (i) use the Implementing Code for any other purpose, (ii) modify or create derivative works or improvements of the Implementing Code, or (iii) disclose or make the Code available to any other person or entity.
b. License to Apps. Subject to your payment of all applicable fees under this Agreement, and so long as you and your Users otherwise comply with this Agreement, we grant you, during the Term, a limited, non-exclusive and non-transferable license to download, install and use the Apps (and to permit your Users to download, install and use the Apps, subject to Section 4.e below), solely for the Permitted Use, on one or more mobile devices or computers owned or otherwise controlled by you (or, as applicable, by the User), solely as (and in the form) in which we have provided the Apps to you, and strictly in accordance with this Agreement and the Documentation.
c. SkillSpring Authorization. Subject to your payment of all applicable fees under this Agreement, and so long as you and your Users otherwise comply with this Agreement, we authorize you, during the Term, and on a limited, non-exclusive and non-transferable basis, to access and use SkillSpring by and through your Admin Users (and to permit your Users to access and use SkillSpring, subject to Section 4.e below), solely for the Permitted Use, solely as (and in the form) in which we have provided SkillSpring, and strictly in accordance with this Agreement and the Documentation.
d. Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the SkillSpring Software. You must not, and you must not permit any other person or entity to, access or use the SkillSpring Software except as we’ve specifically allowed in this Agreement and, in the case of any third-party software or materials (including open source components) (“Third-Party Materials”) we provide with the SkillSpring Software, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, and except as expressly permitted in this Agreement, you, your Admin Users and your Experts must not do any of the following:
i. copy the SkillSpring Software or any portion thereof;
ii. modify, adapt, translate or create derivative works or improvements of the SkillSpring Software or any portion thereof;
iii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the SkillSpring Software or any features or functionality of the SkillSpring Software to any other person or entity for any reason, including by making the SkillSpring Software available on a network where it is capable of being accessed by more than one device at any time or through any time-sharing, service bureau or software as a service arrangement;
iv. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the SkillSpring Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the SkillSpring Software;
v. input, upload, transmit or otherwise provide to or through the SkillSpring Software any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
vi. bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the SkillSpring Software;
vii. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the SkillSpring Software, (B) the server on which the SkillSpring Software is stored, (C) any server, computer or database connected to the SkillSpring Software, or (D) our ability to provide services to any other person or entity;
viii. access or use the SkillSpring Software in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
ix. access or use the SkillSpring Software for purposes of (A) benchmarking or competitive analysis, (B) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the SkillSpring Software, or (C) disclosing to our competitors, for any purpose, otherwise non-public information about the SkillSpring Software; or
x. knowingly aid or assist (A) any User or other person or entity in taking any of the actions prohibited by this Section 4.d, or (B) any User in violating the EULA.
You must immediately notify us should you learn that you, any User or any other person or entity has taken any action prohibited by this Section 4.d, or should you learn that any User has violated the EULA.
e. User Access. Each User’s rights, duties and obligations with respect to (i) downloading, installing and using the Apps on their mobile device or computer, and (ii) accessing and using SkillSpring are governed by the applicable terms of service accepted and agreed to by such User during registration with the Apps and/or SkillSpring (the “EULA”).
5. Using the SkillSpring Software.
a. Accessing the SkillSpring Software. We strive to provide a reliable and useful experience when using our SkillSpring Software, but we do not guarantee that our SkillSpring Software will be available at any specific time or that it will be free of errors, and we will not be liable for any reason if you cannot access the SkillSpring Software or if an error in the SkillSpring Software hinders any of its features or functionality.
b. Account Security. If you or your Users choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you (and the applicable individual) must treat such information as confidential, and you (and the applicable individual) must not disclose it to any other person or entity. If you permit any other person to use your account, you will be responsible for their activities while using the SkillSpring Software. You agree to notify us promptly of any unauthorized access to or use of any user name or password assigned to you or any other breach of security. Accessing the SkillSpring Software without proper user name and password is strictly prohibited, constitutes a breach of this Agreement resulting in the termination of your right to use the SkillSpring Software, and may violate copyright and other laws.
c. Disclaimer of Professional Advice. You, on your own behalf and on behalf of each of your Admin Users and Experts, acknowledge and agree that we are not the provider of, we cannot and do not control, and therefore we will not be responsible or liable for (and we do not warrant the quality, timing, accuracy, availability, suitability, reliability, safety, completeness, legality or usefulness of), any communications, information or advice made available by a User to another User through the SkillSpring Software. We cannot and do not control, are not responsible for, and make no representations regarding the skills, talents, experience and/or qualifications of any Experts or whether any communications, information or advice provided by such Experts will meet the particular requirements of any person or entity. Any reliance that any person or entity places on such communications, information or advice is strictly at his, her or its own risk. We disclaim all liability and responsibility arising from any reliance placed on such communications, information or advice by you or any User or by anyone who may be informed of any of the contents thereof. The availability of any Expert to provide communications, information or advice through the SkillSpring Software does not imply our endorsement of such services for the unique needs of any particular person or entity. All statements and/or opinions expressed by any Experts are solely the opinions of and the responsibility of the Expert. We do not offer, and our provision of the SkillSpring Software does not constitute, medical, legal, tax, accounting or other professional services or advice.
d. Responsibility for Interactions. The SkillSpring Software is solely designed to facilitate communications, payments and workflow between and among you and your Users. We are not responsible for (and will not be liable for) interactions between and among you and your Users. We are not a party to any relationship or contract between you and any User that has elected to use the SkillSpring Software, except for our role (where applicable) as the limited authorized agent acting on your behalf or on behalf of the applicable Expert for the purpose of accepting payments from Consumers and transmitting such payments (less our services fees) to you or to the Expert (as applicable). All such dealings are solely between you and the applicable User. We will not be responsible for in any way intervening in, mediating or resolving any dispute between and among you and your Users, whether on your behalf or on behalf of any User. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU HEREBY AGREE TO RELEASE US (AND ALL OF OUR OFFICERS, DIRECTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
e. Responsibility for Your Data and Activities. As between you and us, you are solely responsible for (i) securing all rights, permissions and consents necessary to grant us and our subcontractors access to or use of any personal data of Users included with Your Data, and (ii) the accuracy, quality, legality and appropriateness of all of Your Data, including, for the avoidance of doubt, ensuring that the use of any personal data of Users in connection with your or your Users’ use of the SkillSpring Software complies with your own (or the Expert’s as applicable) privacy policy, user agreement and terms of service. As between you and us, you are solely responsible for all activities that occur by and through Admin Users and Experts (and any other users) in your SkillSpring account and for such persons’ compliance with this Agreement. You must comply with all applicable local, state, federal, foreign or international laws, treaties, regulations or conventions in connection with your or your Admin Users’ and Experts’ use of the SkillSpring Software, including without limitation the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act of 1991 and its implementing regulations (TCPA), Do Not Call, Do Not Mail and similar Do Not Solicit regulations, the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data including the recitals and any equivalent or implementing legislation (GDPR), and other applicable laws related to privacy, publicity, data protection, electronic communications and anti-spamming laws.
f. Employment; Withholding. The SkillSpring service is not an employment service and we do not serve as an employer of any User. As such, we will not be liable for any employment-related tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your (or any User’s) use of the SkillSpring Software. You understand and agree that if we are found to be liable for any tax or withholding tax in connection with your (or your User’s) use of the SkillSpring Software, then you will immediately reimburse and pay to us an equivalent amount, including any interest or penalties thereon. You also acknowledge and agree that by communicating with Consumers via the SkillSpring Software, we have not in any way engaged (and we do not purport to engage) you or any User as an independent contractor of LifeOmic Holdings LLC or any of its affiliates or service providers (or in any other principal-agent relationship of any sort) for any purpose whatsoever; such relationship is solely one of provider of the SkillSpring Software and consumer of the SkillSpring Software.
7. Security and Data.
a. Security Program. We will develop, implement, maintain and monitor a written data security program that contains commercially reasonable administrative, technical, and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or integrity of Your Data, including the unauthorized or accidental acquisition, destruction, loss, alteration or use of, and the unauthorized access to, Your Data, in a manner that is consistent with applicable federal and state laws and regulations, including (where applicable) HIPAA. We will review and, as appropriate, revise our security program at least annually or whenever there is a material change in our business that may reasonably affect the security or integrity of Your Data.
b. Physical and Environmental Security. We will ensure that our information processing facilities that handle, process, and store Your Data are housed in secure areas and protected by perimeter security, such as barrier access controls that provide a physically secure environment from unauthorized access, damage, and interference.
d. Reputable Hosting Provider. We may provide our hosting services using Amazon Web Services (“AWS”) or such other hosting provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies.
e. Privacy Matters Related to Your Data. Prior to collecting or otherwise processing any personal data of Users using the SkillSpring Software, you must ensure that: (i) you (or, if applicable, the Expert) have provided accurate and complete disclosures regarding your and/or your Experts’ collection, use and disclosure of such personal data, including as contemplated under this Agreement, such as by posting a privacy policy in a clear and conspicuous location on all websites operated in connection with your or your Experts’ use of the SkillSpring Software; (ii) you (or, if applicable, the Expert) have provided every type of notice and obtained every type of consent required by applicable local, state, federal, foreign or international data privacy, data security and/or breach notification laws, treaties, regulations or conventions (“Privacy Laws”) in relation to your collection and processing of Users’ personal data, including as contemplated under this Agreement; and (iii) the above-described disclosures and notices you provide and consents that you obtain from Users include within their scope your uses and disclosures of personal data by and through the SkillSpring Software as contemplated in this Agreement. We will process any of Your Data that you or your Users provide to us in accordance with our Privacy Policy (available online at https://cdn.connect-us.lifeomic.com/privacy-policy). You agree that under no circumstances shall we be obligated to process any of Your Data in a manner that is inconsistent with our Privacy Policy. You and we agree that you may meet your obligations in clauses (i) through (iii) of this Section, in part, by making reference to our Privacy Policy. In all cases, you will process all User personal data only for the limited and specified purposes consistent with the consent that you have obtained from the User, that you will protect User personal data as required by Privacy Laws while processing User personal data, and you will immediately notify us if you make a determination that you can no longer meet these obligations (and in such case immediately cease processing such User personal data or take reasonable and appropriate steps to remediate any unauthorized processing).
a. Treatment of Confidential Information. During the Term and thereafter, each receiving party (each, a “Recipient”) will safeguard any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care, and will not disclose Discloser’s Confidential Information to any third party nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. The SkillSpring Software and all non-public information related to the SkillSpring Software is our Confidential Information, and Your Data is your Confidential Information. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act by the Recipient, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Additionally, the Recipient may disclose Confidential information to the extent required to do so in order to comply with applicable law or a valid order of a court of competent jurisdiction, provided that the Recipient must give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
b. Protected Health Information. With respect to handling any Protected Health Information, we will comply with the applicable provisions of HIPAA to the same extent as you are required to comply with HIPAA. We will not use or further disclose any Protected Health Information other than as permitted by this Agreement and the requirements of HIPAA pertaining to you. To the extent we are a “business associate” of yours under HIPAA, we will execute a business associate agreement with you, in a form that you and we agree upon, and we will comply with such agreement.
9. Fees and Payment.
a. Fees. You will pay to us the fees and charges described in our then-current standard SkillSpring price list available online at https://cdn.connect-us.lifeomic.com/subscription-agreement/fees.html (the “Fees”) in accordance with the price list and this Section. All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement) all Fees once paid are non-refundable.
b. Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we or our subcontractors will calculate the amount of the obligation and include this on your bill or invoice, and we or our subcontractors will remit those amounts to the applicable authority.
c. Payment. You will make all payments in US dollars. You will, upon our request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, you agree that we may charge the Fees using that Automatic Payment Method. If instead we invoice you for the applicable Fees, invoiced amounts are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.
d. Further Assurances. If at any time, through your usage of SkillSpring and our Services or otherwise, you incur an aggregate balance owed to us of $5,000 or more, we reserve the right, in our reasonable discretion, to take any reasonable action to ensure and confirm your ability to pay, including, but not limited to, processing a D&B report, processing a credit report, requiring written validation that the individual who has executed this Agreement on your behalf was duly authorized, processing a nominal charge to your Automatic Payment Method for validation purposes, or requiring you to immediately deposit an amount equal to a commercially reasonable percentage of the balance owed. You will provide all reasonable cooperation and assistance we request in connection with our actions under this Section.
10. Intellectual Property Rights.
a. LifeOmic IP. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to in and to our name, logos and other trademarks, the Services and the SkillSpring Software, including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, updates, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights (collectively, the “LifeOmic IP”). We are not granting you any right, license or authorization with respect to any of the LifeOmic IP except as we’ve specifically provided in Section 4.a above (and subject to the limitations and restrictions in Section 4.d above). We and the respective rights holders in any Third-Party materials reserve all other rights in and to the LifeOmic IP.
b. Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in Section 10.c.
c. Right to Use Your Data. During the Term, you hereby grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary to: (i) perform the Services and provide the SkillSpring Software to you; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement. Additionally, during the Term and thereafter, you hereby grant to us all such rights and permissions in or relating to Your Data, in de-identified and aggregated form only, as are necessary or useful for our research purposes, to prepare and disseminate aggregated statistical information, to improve the quality of our analytics and to improve the SkillSpring Software and our algorithms.
d. AI Model Improvements. To the extent we make any improvements to our algorithms (“Improvements”) based upon the SkillSpring Software’s processing of Your Data and the resulting “machine learning” or “training” of our algorithms, you agree that we exclusively own all right, title and interest in and to the Improvements, including all related intellectual property rights. You specifically acknowledge and agree that any Improvements based upon processing of Your Data may be used for the benefit of our other customers.
e. Publicity Rights. We may, without your consent, include your name, trademarks and/or logos on our website and/or in other sales and marketing materials in order to factually identify you as a current or former customer (as the case may be).
a. Term. The term of this Agreement (the “Term”) commences on the first date you accept this Agreement in accordance with Section 1 above and continues until terminated in accordance with this Agreement.
b. Termination. In addition to any other termination rights described in this Agreement, this Agreement may be terminated at any time:
i. by you, effective immediately upon written notice to us;
ii. by us, upon providing you with 90 days’ prior written notice; and
iii. by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (A) is incapable of cure, or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach.
c. Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment or reimbursement) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated or expires, then: (i) except as expressly provided in Section 10.c above, all rights, licenses and authorizations granted by one party to the other will immediately terminate, (ii) we may disable your and your Users’ access to the SkillSpring Software, and (iii) we each will cease all use of the other party’s Confidential Information and promptly destroy or (at such other party’s request) return all of the other party’s Confidential Information, except as expressly provided in Section 10.c above, except where Confidential Information is required to be retained under applicable law and except that each party may retain Confidential Information in its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course (in each case so long as any retained Confidential Information remains subject to all confidentiality, security and other applicable requirements of this Agreement).
d. Surviving Terms. Sections 8 (Confidentiality), 10 (Intellectual Property Rights), 11.c (Effect of Termination), 13 (Indemnification), 14 (Limitations of Liability), 15 (Miscellaneous), 16 (Definitions) and this Section will survive any expiration or termination of this Agreement.
12. Assurances.
d. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTION 12.b, ALL SERVICES AND THE SkillSpring Software ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE SKILLSPRING SOFTWARE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE SkillSpring Software (INCLUDING, WITHOUT LIMITATION, ANY SERVICES OBTAINED THROUGH IT) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
a. By Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that the SkillSpring Software (excluding Your Data) or your use thereof in accordance with this Agreement and the Documentation infringe any U.S. patent, copyright or trademark of such third party, or misappropriates the trade secret of such third party (each, an “Infringement Claim”). Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the SkillSpring Software in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the SkillSpring Software, as applicable, by anyone other than us (or a party acting under our direction) without our prior written consent; or (iii) any action taken by you or any User relating to use of the SkillSpring Software, as applicable, that is outside the scope of the rights and authorizations granted in this Agreement or the applicable EULA.
b. By You. You will defend us and our subcontractors and personnel from and against any Claims brought by a third party, and you will indemnify and hold us and our subcontractors and personnel harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you or your Users have breached any provision in Section 7.e or Section 12.a.
c. Mitigation. If the Services or SkillSpring Software are, or in our opinion are likely to be, the subject of an Infringement Claim, or if your or any User’s use of the SkillSpring Software is enjoined or threatened to be enjoined, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the Services and SkillSpring Software as contemplated by this Agreement, (ii) modify or replace the Services and SkillSpring Software to make the Services and SkillSpring Software (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice and without any liability to you.
d. Sole Remedy. THIS SECTION 13 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND SkillSpring Software) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE TO YOU, TO YOUR SUBSIDIARIES OR AFFILIATES OR TO YOUR OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, AGENTS OR ASSIGNS FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE 90-DAY PERIOD IMMEDIATELY PRECEDING YOUR FIRST CLAIM AGAINST US HEREUNDER. UNDER NO CIRCUMSTANCES SHALL WE HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. The exclusions and limitations in this Section 14 will not apply to our breach of our obligations under Section 8 (Confidentiality) or our indemnification obligations under Section 13.
15. Miscellaneous. (a) Entire Agreement. This Agreement and our standard price list constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). (b) Amendment, Severability and Waiver. Except as expressly provided in Section 2 above, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, 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. (c) Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of Indiana, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Indianapolis, Indiana, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. (d) Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in your account. (e) Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party’s consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. (f) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. (g) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. (h) Force Majeure. Neither party will be liable for any delays or non-performance of its obligations (excluding the obligation to pay fees due hereunder) arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire (a “Force Majeure Event”), except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards) or the party had notice. (i) Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 4.d (Limitations and Restrictions), Section 8 (Confidentiality) or Section 10 (Intellectual Property Rights) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
“Claim” means any claim, suit, action or proceeding.
“Documentation” means the then-current online, electronic and written user documentation and guides we make available to you and to Users which describe the functionality, components, features or requirements of the SkillSpring Software, as we may update from time to time in our discretion.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended by the Health Information Technology for Economic and Clinical Health Act, 42 U.S.C. § 17931, and all regulations promulgated thereunder, 45 C.F.R. Parts 160 through 164 (collectively, and as modified from time to time).
“Loss” means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.
“Permitted Use” means facilitating communications between Experts and Consumers for the provision or receipt of information and advice in connection with your business in the ordinary course of such business.
“Protected Health Information” has the meaning given to it under HIPAA.
“We,” “us” and “our” as used throughout this Agreement refers to LifeOmic Holdings LLC, a Delaware limited liability company.
“You” and “your” as used throughout this Agreement refers to the party (other than us) entering into this Agreement to obtain a subscription to SkillSpring and our Services.
“Your Data” means information, data and other materials that are collected, uploaded or otherwise received, directly or indirectly, from you or a User by or through the SkillSpring Software or Services.