Hosting Master Service Agreement
This Master Services Agreement is between PATIENT DATA PROTECTION, LLC., a Florida Limited Liability Corporation (“PATIENT DATA PROTECTION, LLC”) and the organization or individual person whose name appears on the signature line of the Agreement or on any document that incorporates the Agreement by reference (“Client”) and is effective on the Effective Date.
- Defined Terms. Capitalized terms shall have the following meanings or the meanings assigned to them in the other Sections of the Agreement:
“Agreement” shall mean the 12 Month Service Agreement, any PATIENT DATA PROTECTION, LLC Addendum to this Master Services Agreement, and the AUP, collectively. Any conflict between the documents shall be resolved by reading the documents in the foregoing order of precedence.
“AUP” shall mean PATIENT DATA PROTECTION, LLC’s Acceptable Use Policy, as described here;
PATIENT DATA PROTECTION, LLC services may only be used in accordance with the protection of and benefit of clients’ health care. Client may not without prior permissions change the content of its website to another industry other than health care.
may be amended from time to time in accordance with Section 6 (AUP) of this Master Services Agreement.
“Business Day” shall mean Monday through Friday, 8:00 a.m. to 5:00 p.m., Eastern Time, excluding any United States Federal Holiday.
“Effective Date” shall mean the day that Client accepts and signs the 12 Month Service Agreement, client’s payment is made and funds are made good, or by using the Service.
“Service Commencement Date” shall mean the date PATIENT DATA PROTECTION, LLC publishes client’s website, install ADA accessibility software, or provides any of its services in the 12 Month Service Agreement.
“Service” or “Services” shall mean the Hosting Service and any Supplemental Service(s) provided by PATIENT DATA PROTECTION, LLC to Client pursuant to the Agreement.
- Term. The initial service term of the Agreement shall begin on the Service Commencement Date and continue for the period stated in the 12 Month Service Agreement (the “Initial Term” ) and automatically renew for successive terms equal to the initial term unless canceled by either party in writing at least thirty days before the expiration of the current term (the “Term”). The Initial Term applicable to any 12 Month Service Agreement executed subsequent to the Effective Date shall begin on the Service Commencement Date stated in that 12 Month Service Agreement and continue for the period stated in that 12 Month Service Agreement.
(a). AGREEMENT TO PROVIDE SERVICES AND PAY FEES; 12 MONTH SERVICE AGREEMENT. Pursuant to the Agreement, PATIENT DATA PROTECTION, LLC has agreed to provide certain services (“Services”) to the Client, and the Client has agreed to pay certain fees (“Fees”) to PATIENT DATA PROTECTION, LLC in consideration therefore. PATIENT DATA PROTECTION, LLC shall have the right to increase the Fees after 12 (twelve) months of service in proportion to increases in the Consumer Price Index and/or electricity costs applicable to the geographic area where the Building is located, plus two percent (2%). PATIENT DATA PROTECTION, LLC shall have the right to increase software license fees at any time for software in proportion to increases from owner of the product. Client shall have the right to purchase additional Services offered by PATIENT DATA PROTECTION, LLC from time to time on terms and conditions to be agreed upon in writing.
(b). PAYMENT OF FEES; DUE DATE; LATE CHARGE; DEFAULT INTEREST. Client agrees to pay the monthly and set up fees stated in the 12 Month Service Agreement and PATIENT DATA PROTECTION, LLC’s standard fees for Supplemental Services as described in Section 3 (Services) above. PATIENT DATA PROTECTION, LLC may require payment in full of its first invoice before beginning the Service. On or before the first (1st) day of each and every month during the Term hereof (each, a “Due Date”), Client agrees to and shall pay the Fees to PATIENT DATA PROTECTION, LLC, in advance, for the Services to be rendered by PATIENT DATA PROTECTION, LLC to Client during said month, without offset, deduction or credit of any kind and in good and drawable funds. If Client for any reason fails to pay the Fees to PATIENT DATA PROTECTION, LLC by the Due Date of any month during the Term hereof, Client will be assessed an administrative charge in the amount which is equal to five (5%) of the overdue Fees (“Administrative Charge”); in addition PATIENT DATA PROTECTION, LLC may charge interest on all due but unpaid Fees at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law (“Default Interest”) until paid in full. Client agrees to and shall pay to PATIENT DATA PROTECTION, LLC for all costs of collection of the Fees, Default Interest and Late Charges plus PATIENT DATA PROTECTION, LLC’s attorneys’ fees, costs, expenses and court costs and fees paid or incurred in connection therewith. Client’s obligation to pay the Fees, Default Interest and Late Charges shall survive the expiration or earlier termination of the Hosting Master Service Agreement. If Client requests that PATIENT DATA PROTECTION, LLC provide services not specifically set forth herein and PATIENT DATA PROTECTION, LLC agrees to provide such services, Client agrees to pay PATIENT DATA PROTECTION, LLC’s standard fee for such service at the time such service is rendered or such charge as the parties may mutually agree upon prior to the delivery of the service. Invoices for Supplemental Services, excess data transfer, reinstatement of service, switching and upgrade fees and other non-recurring amounts are due on receipt. Client acknowledges that it is responsible for excess data transfer fees that may result from a denial of service or other attack on your website hosted on the PATIENT DATA PROTECTION, LLC servers. Credits due under the 12 Month Service Agreement may be given, at PATIENT DATA PROTECTION, LLC’s
ption, against the invoice for the month in which the event(s) occurred or the invoice for the following month. Payments must be made in United States dollars. PATIENT DATA PROTECTION, LLC may suspend any or all Services to Client if payment for any Service is overdue. A Reinstatement Fee equal to seventy-five dollars ($75.00) will be assessed for suspended Services and must be collected with the overdue Fees for the account to be reinstated. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate.
(c) Early Termination. Client acknowledges that the amount of the monthly recurring fee for Service(s) is based on Client’s agreement to pay the fee for the entire Initial Term. In the event PATIENT DATA PROTECTION, LLC terminates the Agreement for Client’s breach of the Agreement in accordance with Section 13 (Termination), or Client terminates the Hosting Service other than for PATIENT DATA PROTECTION, LLC’s breach in accordance with Section 13 (Termination), all fees due under the Agreement, including the monthly recurring fees for the remaining portion of the Term, are due on the Business Day following termination of the Service(s).
- Client Obligations. Client agrees to do all of the following at its expense:
(a) Security Precautions. Use reasonable security precautions in connection with its use of the PATIENT DATA PROTECTION, LLC’s services;
(b) Security and Backup. Client is responsible for taking appropriate action to secure, protect, and backup Client’s content in a manner that will provide appropriate security and availability;
(c) Law, AUP. Comply with laws applicable to Client’s use of the Services and with PATIENT DATA PROTECTION, LLC’s AUP; and
(d) Investigation of AUP. Cooperate with PATIENT DATA PROTECTION, LLC’s reasonable investigation of any suspected violation of the AUP.
- AUP. Client agrees that PATIENT DATA PROTECTION, LLC may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Client’s use of the Services. Amendments to the AUP are effective on the earlier of PATIENT DATA PROTECTION, LLC’s notice to Client that an amendment has been made, or the beginning of any Renewal Term or Extended Term. However, if: (i) the amendment would materially and adversely affect Client, (ii) Client provides PATIENT DATA PROTECTION, LLC with a written notice describing its objection to the amendment in reasonable detail within five (5) Business Days of the effective date of the amendment, and (iii) PATIENT DATA PROTECTION, LLC does not agree to waive the amendment as to Client within five (5) Business Days of Client’s notice, then Client may terminate the Agreement without liability as provided in Section 13 (Termination).
- Suspension of Service. Client agrees that PATIENT DATA PROTECTION, LLC may suspend Services to Client without notice and without liability if: (i) PATIENT DATA PROTECTION, LLC reasonably believes that the Services are being used in violation of the AUP; (ii) Client fails to cooperate with any reasonable PATIENT DATA PROTECTION, LLC investigation of any suspected violation of the AUP; (iii) there is a denial of service attack on Client’s servers or other event for which PATIENT DATA PROTECTION, LLC reasonably believes that the suspension of Services is necessary to protect its network or its other Clients; (iv) as requested by a law enforcement or government agency; or (v) payment for any Service is overdue. Information on PATIENT DATA PROTECTION, LLC’s servers will be unavailable during a suspension of Services.
(a) Reciprocal . PATIENT DATA PROTECTION, LLC represents and warrants to Client, and if Client is not an individual, Client represents and warrants to PATIENT DATA PROTECTION, LLC, that: (i) it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of the Agreement; and, (iii) the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents. If Client is an individual, Client represents and warrants to PATIENT DATA PROTECTION, LLC that he or she is at least 18 years of age.
(b) Client. Client represents and warrants to PATIENT DATA PROTECTION, LLC that: (i) the information Client has provided and will provide to PATIENT DATA PROTECTION, LLC for purposes of establishing and maintaining the Services is accurate; and (ii) Client shall not provide access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States Export Regulations, which include as of November 2020 Cuba, Iran, Libya, North Korea, Sudan, Syria, Russia, Crimea (State in Ukraine).
- Unauthorized Use of Service. Client is generally responsible for the security of the servers provided pursuant to this Agreement, and PATIENT DATA PROTECTION, LLC agrees only to perform the specific security services described in the 12 Month Service Agreement or other portion of the Agreement. Client shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorized use results from PATIENT DATA PROTECTION, LLC’s failure to perform its obligations under the Agreement.
- Indemnification. The parties agree that the indemnification obligations defined in this Section shall be in lieu of and supersede any indemnification obligations that may otherwise exist by law.
(a) Client. Client agrees to indemnify and hold harmless PATIENT DATA PROTECTION, LLC, PATIENT DATA PROTECTION, LLC’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to: (i) the actual or alleged use of the Services in violation of: (A) the AUP, (B) any other portion of the Agreement, or (C) applicable law, by any person regardless of whether such person has been authorized to use the Services by Client, except for unauthorized use that results from PATIENT DATA PROTECTION, LLC’s failure to perform its obligations under the Agreement, or (ii) any dispute regarding the control of Client’s account with PATIENT DATA PROTECTION, LLC. Without limitation of the foregoing, Client shall pay PATIENT DATA PROTECTION, LLC $200.00 per hour for time reasonably spent by PATIENT DATA PROTECTION, LLC personnel to respond to third party complaints regarding Client’s use or alleged use of the Services in violation of the AUP, including complaints under the Digital Millennium Copyright Act.
(b) Reciprocal. Each party agrees to indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark, or other proprietary right.
(c) Procedures. A party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section unless and to the extent that the failure materially prejudices the defense of the matter. The indemnified party will have the right to select counsel to defend it in respect of any indemnified matter under this Section; provided, however, that the counsel selected must be reasonably satisfactory to the indemnifying party. The indemnified party will keep the indemnifying party informed of the status of any litigation or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of the indemnifying party with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter covered by this Section without the prior consent of the indemnifying party, which shall not be unreasonably withheld. Notwithstanding anything in this Section to the contrary, if the indemnifying party is indemnifying multiple persons related to the subject matter of the indemnification, the indemnifying party shall have the right to seek consolidation of all such actions and to select counsel to defend the actions. Amounts due under this Section shall be paid as incurred and may be offset against other amounts due under the Agreement.
- Disclaimer of Warranties.
PATIENT DATA PROTECTION, LLC DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CLIENT ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, PATIENT DATA PROTECTION, LLC DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. CLIENT IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. ALL GOODS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS, EXCEPT AS EXPRESSLY STATED IN THE 12 MONTH SERVICE AGREEMENT OR OTHER PORTION OF THE AGREEMENT.
- Limitation of Damages. The parties agree that the allocations of risk made in this Section are reasonable and that they would not enter into the Agreement without these limitations on liability.
THE CREDITS DESCRIBED IN THE 12 MONTH SERVICE AGREEMENT AND 12 MONTH SERVICE AGREEMENT ARE CLIENT’S SOLE REMEDIES FOR PATIENT DATA PROTECTION, LLC’S FAILURE TO MEET THE GUARANTEES AND WARRANTIES STATED IN THOSE DOCUMENTS, PROVIDED THAT THIS PROVISION DOES NOT LIMIT CLIENT’S RIGHT TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 13 (TERMINATION) BELOW IF SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.
EXCEPT AS DESCRIBED IN THE 12 MONTH SERVICE AGREEMENT, PATIENT DATA PROTECTION, LLC SHALL NOT BE LIABLE TO THE CLIENT FOR HARM CAUSED BY OR RELATED TO CLIENT’S USE OF THE SERVICES OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY PATIENT DATA PROTECTION, LLC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF PATIENT DATA PROTECTION, LLC AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID BY CLIENT FOR THE HOSTING SERVICE FOR THE THREE MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.
NO CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT OR OMISSION THAT OCCURRED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.
(a) Client. The Agreement may be terminated by Client prior to the expiration of the Initial Term, any Renewal Term, or Extended Term without liability (except for amounts due for Services through the effective date of termination) as follows: (i) PATIENT DATA PROTECTION, LLC fails in a material way to provide the Hosting Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Client’s written notice describing the failure in reasonable detail, (ii) PATIENT DATA PROTECTION, LLC materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Client’s written notice describing the violation in reasonable detail, or (iii) as provided in Section 6 (AUP) upon thirty (30) days advance written notice in the event of an amendment to the AUP that materially and adversely affects Client and that is not waived by PATIENT DATA PROTECTION, LLC.
(b) PATIENT DATA PROTECTION, LLC. The Agreement may be terminated by PATIENT DATA PROTECTION, LLC prior to the expiration of the Initial Term, any Renewal Term, or Extended Term, without liability as follows: (i) upon five (5) Business Days notice if Client is overdue on the payment of any amount due under the Agreement; (ii) Client materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from PATIENT DATA PROTECTION, LLC describing the violation in reasonable detail; (iii) upon one (1) Business Days notice if Client’s Service is used in violation of a material term of the AUP more than once; or (iv) upon reasonable notice if PATIENT DATA PROTECTION, LLC is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is unable to modify the Service in a way that avoids an ongoing risk of liability.
(a) Confidential Information. Confidential Information is: (i) with respect to PATIENT DATA PROTECTION, LLC, PATIENT DATA PROTECTION, LLC’s unpublished prices for services, audit and security reports, server configuration designs and other proprietary technology, (ii) with respect to Client, content transmitted to or from, or stored by Client on, PATIENT DATA PROTECTION, LLC’s servers, and (iii) with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure; but excluding any information which is independently developed by a non-disclosing party as shown by such party’s written business records, is or becomes generally available to the non-disclosing party or the public other than through violation of the Agreement, or is required to be disclosed by law or regulation. Each party agrees not to disclose the other’s confidential information to any third party except to its service providers, agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement; and provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as stringent as those stated in the Agreement.
(b) PATIENT DATA PROTECTION, LLC’s Use of Client’s Name and Logo. Client agrees that PATIENT DATA PROTECTION, LLC may publicly disclose that PATIENT DATA PROTECTION, LLC is providing services to Client and may include Client’s name and logo in promotional materials, including press releases, on PATIENT DATA PROTECTION, LLC’s Web site, and marketing collateral.
(c) Requests for Client Information. Notwithstanding anything to the contrary above, Client agrees that PATIENT DATA PROTECTION, LLC may, without notice to Client, (i) report to the appropriate authorities any conduct by Client or any of Client’s Clients or end users that PATIENT DATA PROTECTION, LLC believes violates applicable law, and (ii) provide any information, including Confidential Information, it has about Client or any of its Clients or end users in response to a formal or informal request from a law enforcement or government agency. PATIENT DATA PROTECTION, LLC may provide any information, including Confidential Information, it has about Client or its Clients or end users in response to a formal request in a civil action that on its face meets the requirements for such a request.
- Software. Client agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by PATIENT DATA PROTECTION, LLC. Client may not reverse engineer, decompile, or disassemble any PATIENT DATA PROTECTION, LLC provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source” license that governs the use of the software.
- Third Party Products. As a convenience to Client, PATIENT DATA PROTECTION, LLC may from time to time arrange for Client’s purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to Client in relation to those products. PATIENT DATA PROTECTION, LLC MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND THEY ARE PROVIDED “AS IS.” Client’s use of third party software, services, and other products is governed by the terms of any license or other agreement between Client and the third party.
- Notices. Notices to PATIENT DATA PROTECTION, LLC under the Agreement shall be given in writing via first class mail or established and well-known express courier to Legal Counsel, PATIENT DATA PROTECTION, LLC HOSTING , at PATIENT DATA PROTECTION, LLC’s principal office address posted on www.PatientDataProtection.com, currently:
441 Kings Bay Dr.
Crystal River, Florida 34429
Notices to Client shall be given via electronic mail to the individual designated as the Contact on the 12 Month Service Agreement or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.
(a) Solicitation of PATIENT DATA SOLUTIONS, LLC Employees. Client agrees that it shall not solicit any PATIENT DATA PROTECTION, LLC employee with whom Client has had direct contact in connection with this Agreement for employment with Client or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the foregoing, Client shall not be precluded from (i) hiring an employee of PATIENT DATA PROTECTION, LLC who independently approaches Client, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. In the event of a violation of this provision, in addition to any other right PATIENT DATA PROTECTION, LLC may have at law or in equity, Client shall make a one-time payment to PATIENT DATA PROTECTION, LLC in the amount of fifty percent (50%) of the employee’s base salary for one year.
(b) Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property, and that PATIENT DATA PROTECTION, LLC shall own any intellectual property that it may develop in the course of performing the Services. Client does not acquire any ownership interest or rights to possess PATIENT DATA PROTECTION, LLC’s server(s) or other hardware, and has no right of physical access to the hardware. Upon termination of the Agreement, Client agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to Client in connection with the Service (but not any URL or top level domain or domain name) and agrees that PATIENT DATA PROTECTION, LLC may take steps to change or remove any such IP addresses.
(c) Governing Law, Jurisdiction, Venue. The Agreement shall be governed by the laws of the State of Florida, exclusive of its choice of law principles, and the laws of the United States of America , as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN ORANGE COUNTY, FLORIDA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
(d) Modifications. Except for the following, the Agreement may be amended only by a formal written agreement signed by both parties: (i) amendments of the AUP as described in Section 6, above, (ii) a Renewal Term may be agreed by means of PATIENT DATA PROTECTION, LLC’s renewal process, and (iii) changes to the “Server Specifications,” “Software and Services,” or fees section of an existing 12 Month Service Agreement may be made by an exchange of correspondence (including electronic mail) that includes both parties’ express consent to the change. The terms on either party’s purchase order or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties.
(e) Non-Waiver. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(f) Captions. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties.
(g) Counterparts. Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original.
(h) Survival. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
(i) Force Majeure. Neither party shall be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(j) No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor the Clients of resellers are third party beneficiaries to the Agreement.
(k) Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
(l) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive. PATIENT DATA PROTECTION, LLC may provide service to any person, including a competitor of Client.
(m) Assignment. Client may not transfer the Agreement without PATIENT DATA PROTECTION, LLC’s prior written consent. PATIENT DATA PROTECTION, LLC’s approval for assignment is contingent on the assignee meeting PATIENT DATA PROTECTION, LLC’s credit approval criteria. PATIENT DATA PROTECTION, LLC may assign the Agreement in whole or in part.
(n) Agreement. The 12 Month Service Agreement(s), PATIENT DATA PROTECTION, LLC’s AUP, and any PATIENT DATA PROTECTION, LLC Addendum to this Master Services Agreement accepted by Client are hereby incorporated in this Master Services Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.