LAST UPDATED: JULY 26, 2023
These Terms and Conditions (“Terms”) govern the services (“Services”) provided by Zunta, LLC (“Provider”) to the customer (“Customer”) (collectively, the “Parties”) that has submitted an approved Customer Application and Service Agreement (“Service Agreement”). We have created these Terms, which will be amended from time to time, to govern Customer’s access to, use of, and/or interaction with the Services.
1. Definitions
a.
“Affiliates” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
b.
“Aggregated Statistics” means data and information related to Customer's use of the SaaS Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Services.
c.
“Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the SaaS Services under the rights granted to Customer pursuant to these Terms and (ii) for whom access to the SaaS Services has been purchased hereunder.
d.
“Corporate License” means that the Customer and Affiliates have the right to use Provider’s system to process their own work.
e.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the SaaS Services.
f.
“Documentation” means Provider’s user manuals, handbooks, and guides relating to the SaaS Services provided by Provider to Customer either electronically or in hard copy form or on a customer portal.
g.
“Hosting SaaS Services” means Provider’s providing access to the SaaS Services by the Authorized User.
h.
“Managed Services” means the services offering, other than the Saas Services, described in Exhibit A.
i.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
j.
“Provider IP” means the SaaS Services, the Managed Services, the Documentation, the Hosting SaaS Services, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Provider’s, (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks (such as ZUNTA) and its logos, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other confidential information, (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world, and (f) Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the SaaS Services, but does not include Customer Data.
k.
“SaaS Services” means the software-as-a-service offering described in Exhibit A.
2. Access and Use
a.
Provision of Access to SaaS Services.
Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of these Terms, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12 (g) ) right to access and use the SaaS Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the SaaS Services. Customer shall be responsible for the acquisition and installation of any and all computer hardware or peripheral equipment thatCustomer intends to use in securing access to the SaaS Services and for all costs related to any said access or connections.
b.
Documentation License.
Subject to the terms and conditions contained in these Terms, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 12 (g) ) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the SaaS Services.
c.
Use Restrictions.
Customer shall not use the SaaS Services for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, create backups, modify, or create derivative works of the SaaS Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SaaS Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the SaaS Services, in whole or in part; (iv) remove any proprietary notices from the SaaS Services or Documentation; or (v) use the SaaS Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
d.
Managed Services.
Subject to and conditioned upon Customers option to use Managed Services, Provider’s acceptance of the option, and Customer’s payment of Fees and compliance with all other terms and conditions of these Terms, Provider shall provide the Managed Services to Customer in accordance with Service Agreement. Customer may opt to use Managed Services by providing Provider with written notice or via any customer portal. Provider may accept the Customer’s option in Provider’s sole discretion.
e.
Reservation of Rights.
Provider reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
f.
Suspension.
Notwithstanding anything to the contrary in these Terms, Provider may temporarily suspend Customer’s and any Authorized End User's access to any portion or all of the SaaS Services or Managed Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized End User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized End User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the SaaS Services to Customer or any Authorized End User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party SaaS Services or products required to enable Customer to access the SaaS Services; or (iii) in accordance with Section 5 (a) (iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the SaaS Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the SaaS Services or Managed Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
g.
Aggregated Statistics.
Notwithstanding anything to the contrary in these Terms, Provider may monitor Customer’s use of the SaaS Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the SaaS Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. Customer Responsibilities
a.
General.
Customer is responsible and liable for all uses of the SaaS Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of these Terms's provisions as applicable to such Authorized User's use of the SaaS Services, and shall cause Authorized Users to comply with such provisions.
b.
Enrollment.
Customer agrees to provide information as may be necessary or desirable to Provider to facilitate Provider’s Services, including but not limited to credentials to the Customer’s EHR System and Payer types for which Provider will generate statements. Customer acknowledges and agrees that the Provider may use various data extraction and web scraping methods to retrieve data from Customer systems. Customer recognizes and agrees the provision of any of Provider’s Services under these Terms is contingent on Provider’s ability to access Customer Data. To the extent necessary, Customer shall cooperate with Provider as necessary in order for Provider to provide Services to Customer, including compiling and submitting any required authorization forms.
c.
Mailing Addresses.
Where necessary under the Agreement, Customer agrees to provide accurate mailing addresses to Provider and assumes all liability in connection with the addresses provided to Provider. Customer understands and agrees that Provider utilizes vendors to print and mail statements and correspondence on Customer’s behalf. Customer further understands and agrees that Provider’s vendors will confirm mailing addresses using the National Change of Address (“NCOA”) database and when applicable modify the address per NCOA data.
d.
Banking Information.
Customer agrees to provide banking information in order to facilitate deposit of funds by ACH. In some instances, the Provider may require a voided check for the account into which funds are to be deposited, copy of signers’ driver's license, corporate formation documents, and/or two most recent business bank statements.
e.
ACH Authorization:
Customer authorizes Provider to initiate credit or debit entries to the account provided. Customer acknowledges that the origination of ACH transactions for its account must comply with applicable U.S. laws and regulations. This authorization is to remain in full force and effect until the Provider has received a written notice of termination or a change in banking from the Customer in such time and in such manner as to afford the Provider a reasonable opportunity to act on it. As an Originator, the Customer is responsible for adhering to applicable rules as prescribed by the National Automated Clearing House Association (“NACHA”). The Customer shall establish and maintain procedures for secure online authentication (to identify End Users) and make reasonable efforts to prevent fraudulent use by End Users and unauthorized users. Provider may (but is in no way obligated to) monitor and audit Customer and End User ACH activity, conduct risk assessments, set exposure limits, provide education, monitor return activity, make change requests, evaluate staff-initiated entries, and reject certain entries (e.g., physical check conversions). If necessary to comply with applicable laws, rules, or regulations, Provider may revoke the Customer’s privilege to originate ACH transactions. The Provider assumes no responsibilities of a Third-Party Sender under NACHA Rules, or otherwise. Customer understands that unless otherwise agreed to in writing, Provider shall charge Customer a fee per ACH transaction, as set forth in Exhibit A, for facilitating such transaction.
f.
Credit Card Processing.
Customer shall at all times maintain compliance with the most current applicable Payment Card Industry Data Security Standards (“PCI DSS”). Customer acknowledges that Provider maintains no responsibility for the security of cardholder data, as same is deemed to be under Customer’s control as defined within the PCI DSS. Customer, as the merchant, has additional obligations under PCI DSS. On an annual basis, the Customer may be required to complete a PCI DSS Self-Assessment Questionnaire (SAQ) and Attestation of Compliance to validate compliance with PCI DSS. Failure to complete an SAQ when required may result in penalties assessed to the Customer. Customer agrees that Provider will furnish a credit card processor that integrates with Provider’s Services and Customer will abide by processor’s terms and conditions of service. This includes without limitation, completion of a merchant application and agreement to comply with applicable card association rules. Customer understands that unless otherwise agreed to in writing, Provider shall charge a fee of per credit card and debit card transaction, as set forth in Exhibit A, for facilitating such transaction.
g.
Acknowledgment.
Notwithstanding anything herein to the contrary, Customer is solely responsible for (i) determining its desired results from the use of the SaaS Services, (ii) evaluating the capabilities of the SaaS Services, and (iii) successfully integrating the SaaS Services. Licensee acknowledges that the SaaS Services may contain or produce tax or other calculations that may be based, in part, upon interpretations of state tax laws and other regulations or statutes. It is Customer’s sole responsibility to review the effect of the interpretations contained in the SaaS Services, and other data generated by the SaaS Services, with appropriate professional advisors.
h.
Billing Provider Authorization.
To the extent that Customer, during any Term of these Terms, engages with a third-party billing service provider other than Provider (“Third-Party Provider”), Customer authorizes Provider to coordinate billing services with the Third-Party Provider, including obtaining access to Customer Data as necessary for Provider to perform under these Terms.
4. Support
a.
Support.
The access rights granted hereunder entitles Customer to the Support Services described on Exhibit A for the Term of the Agreement.
5. Fees and Payment
a.
Fees.
Customer shall pay Provider the fees (“Fees”) as set forth in Exhibit A without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the first day of each month. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies:
i.
Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. In the event Customer is Jewish, in accordance with Heter Iska Kulo Pikodon, Provider shall be an investor in assets of Customer at the equivalent of total monies owed, taking 95% of the profits and 100% of the losses. Customer is obligated to bring 2 witnesses on accuracy of losses and verify accuracy of profits via swearing an oath or, alternatively, Customer may choose to pay the 1.5% monthly interest in lieu of swearing an oath;
ii.
Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees, in accordance of Heter Iska Kulo Pikodon (referenced above) when applicable; and
iii.
if such failure continues for thirty (30) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the SaaS Services or may stop delivering the Managed Services until such amounts are paid in full.
b.
Billing Issues.
Customer shall promptly review all invoices for errors or discrepancies. Any billing or fee issues not brought to Provider’s attention within sixty (60) days of receipt shall be deemed waived.
c.
Taxes.
All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
6. Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non- confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under these Terms, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback
a.
Provider IP.
Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
b.
Customer Data.
Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the SaaS Services to Customer, and a non- exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display anonymized and aggregated Customer Data incorporated within the Aggregated Statistics.
c.
Feedback.
If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Warranty Disclaimer
THE SAAS SERVICES, MANAGED SERVICES AND PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'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, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification
a.
Provider Indemnification.
i.
Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the SaaS Services, or the Managed Services, or any use of the SaaS Services or the Managed Services in accordance with these Terms, infringes or misappropriates such third party’s U.S. patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
ii.
If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the SaaS Services or the Managed Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
iii.
This Section 9 (a) will not apply to the extent that the alleged infringement arises from: (A) use of the SaaS Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the SaaS Services not made by Provider; or (C) Customer Data.
b.
Customer Indemnification.
Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party's US intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the SaaS Services in a manner not authorized by these Terms; (iii) use of the SaaS Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the SaaS Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
c.
Sole Remedy.
THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SAAS SERVICES OR THE MANAGED SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 9 EXCEED THE AVERAGE ANNUAL FEES PAID BY CUSTOMER TO PROVIDER UNDER THIS AGREEMENT FOR THE SPECIFIED SAAS SERVICES (NOT INCLUDING MANAGED SERVICES) OR THE ANNUAL FEES PAID BY CUSTOMER TO PROVIDER FOR THE SPECIFIED SAAS SERVICES IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS.
10. Limitations of Liability
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SAAS SERVICES OR MANAGED SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AVERAGE ANNUAL FEES PAID BY CUSTOMER TO PROVIDER FOR THE SPECIFIED SAAS SERVICES OR MANAGED SERVICES UNDER THIS AGREEMENT OR THE ANNUAL FEES PAID BY CUSTOMER TO PROVIDER FOR THE SPECIFIED SAAS SERVICES OR MANAGED SERVICES IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS.
11. Term and Termination
a.
Term.
The initial term of these Terms begins on the Effective Date and, unless terminated earlier pursuant to these Terms's express provisions, will continue in effect for one (1) month (the "Initial Term"). These Terms will automatically renew for successive one (1) month terms unless earlier terminated pursuant to these Terms’s express provisions or upon written notice of non-renewal (by either Party) at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term"). Provider reserves the right to increase the Fees, subject to thirty (30) days notice.
b.
Trial Term.
At Provider’s sole discretion, Provider may offer, at its sole discretion, a “Trial Term” to a new customer, as set forth in Exhibit A. In the event that the Customer terminates the Agreement prior to the expiration of the Trial Term, all SaaS Services Monthly Fees paid should be fully reimbursed and no future charges shall be incurred by Customer.
c.
Termination.
In addition to any other express termination right set forth in these Terms:
i.
Provider may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2 (c) or Section 6 ;
ii.
either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
iii.
either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
iv.
Customer agrees not to create, market, offer or sell, for itself or for third parties, the SaaS Services and/or Managed Services for a period of two (2) years after the Term.
d.
Effect of Expiration or Termination.
Upon expiration or earlier termination of these Terms, all Support shall cease, and Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6 , Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. Provider shall return all Customer Data to Customer within 45 days of expiration or termination. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
e.
Survival.
This Section 11(d) and Sections 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
a.
Entire Agreement.
These Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the Exhibits to these Terms as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
b.
Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of these Terms (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission and human acknowledgment of receipt) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the equirements of this Section.
c.
Force Majeure.
In no event shall Provider be liable to Customer, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
d.
Amendment and Modification; Waiver.
No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
e.
Severability.
If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
f.
Governing Law; Submission to Jurisdiction.
These Terms is governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New Jersey. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New Jersey if the federal court is found to lack jurisdiction, in each case located in the County of Ocean, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
g.
Assignment.
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
h.
Export Regulation.
The SaaS Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re- export, or release the SaaS Services or the underlying software or technology to, or make the SaaS Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the SaaS Services or the underlying software or technology available outside the US.
i.
Equitable Relief.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2 (c) , would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, 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.