1. Definitions.
1.1. “August Health IP” means the Platform, the Documentation, and any and all intellectual property provided to Operator or any Authorized User in connection with the foregoing. For the avoidance of doubt, August Health IP includes Business Contact Data and any information, data, or other content derived from August Health’s provision of the Platform but does not include Operator Data.
1.2. “Authorized User” means Operator’s employees, consultants, contractors, agents or other business users: (i) who are authorized by Operator to access and use the Platform under this Agreement; and (ii) for whom access to the Platform has been purchased hereunder.
1.3. “Business Contact Data” means Personal Information that relates to August Health’s relationship with Operator, including, by way of example and without limitation, the names and contact information of Authorized Users and any other data August Health collets for the purpose of managing its relationship with Operator, identity verification, or as otherwise required by applicable laws, rules, or regulations.
1.4. “Community” means any senior-care living facility housing Residents identified in an Order, or that the Parties otherwise agree are within scope of this Agreement in writing.
1.5. “Documentation” means August Health’s end user documentation relating to the Platform and Platform pricing, as made available on the August Health website from time to time.
1.6. “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 (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
1.7. “Operator Data” means documents, information, data, and other content, in any form or medium, that is submitted, posted, imported into, or otherwise transmitted by or on behalf of Operator or an Authorized User through the Platform or in writing (including email), including Resident Data.
1.8. “Order” means: (i) a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (ii) if Operator registered for the Platform through August Health’s online ordering process, the results of such online ordering process.
1.9. “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy.
1.10. “Platform” means August Health’s proprietary, hosted software platform for managing senior living Communities, or for purposes of the Payment Processing Agreement, “Platform” refers to August Health.
1.11. “Resident” means an individual living in a Community that Operator uses the Platform to manage care for under this Agreement.
1.12. “Resident Data” means all information, content, details, and records (which may include Personal Information) pertaining to Residents in a Community.
1.13. “Subscription Period” means the time period identified on the Order during which Operator’s Authorized Users may access and use the Platform.
1.14 “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform.
1.15 “Merchant” means Operator. The terms “Merchant” and “Operator” are used interchangeably throughout this Agreement.
2. Access and Use.
2.1. Provision of Access. Subject to and conditioned on Operator’s compliance with the terms and conditions of this Agreement, Operator may, solely through its Authorized Users, access and use the Platform during the Subscription Period on a non-exclusive, non-transferable (except in compliance with Section 13.9), and non-sublicenseable basis. Such use is limited to Operator’s internal business purposes and the features and functionalities specified in the Order. Each Authorized User must have its own unique account on the Platform and Authorized Users may not share their account credentials with one another or any third party. Operator will be responsible for all of the acts and omissions of its Authorized Users in connection with this Agreement and for all use of Authorized Users’ accounts.
2.2. Documentation License. Subject to and conditioned on Operator’s compliance with the terms and conditions of this Agreement, August Health hereby grants to Operator a non-exclusive, non-transferable (except in compliance with Section 13.9), and non-sublicenseable license to use the Documentation during the Subscription Period solely for Operator’s internal business purposes in connection with its use of the Platform.
2.3. Use Restrictions. Operator shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Operator shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any August Health IP, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from any August Health IP; (v) use any August Health IP 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; (vi) access or use any August Health IP for purposes of competitive analysis of August Health or the Platform, the development, provision, or use of a competing software service or product, or any other purpose that is to August Health’s detriment or commercial disadvantage; (vii) bypass or breach any security device or protection used by the Platform or access or use the Platform other than by an Authorized User through the use of valid access credentials; (viii) input, upload, transmit, or otherwise provide to or through the Platform any information or materials, including Operator Data , that are unlawful or injurious or that infringe or otherwise violate any third party’s intellectual property or other rights, or that contain, transmit, or activate any Harmful Code; or (ix) use any August Health IP for any activity where use or failure of the August Health IP could lead to death, personal injury, or environmental damage, including life support systems, or emergency services.
2.4. Reservation of Rights. August Health reserves all rights not expressly granted to Operator in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Operator or any third party any intellectual property rights or other right, title, or interest in or to the August Health IP.
2.5. Suspension. Notwithstanding anything to the contrary in this Agreement, August Health may temporarily suspend Operator’s and any Authorized User’s access to any portion or all of the Platform if: (i) August Health reasonably determines that (a) there is a threat or attack on any of the August Health IP; (b) Operator’s or any Authorized User’s use of the August Health IP disrupts or poses a security risk to the August Health IP or to any other Operator or vendor of August Health; (c) Operator, or any Authorized User, is using the August Health IP for fraudulent or illegal activities; (d) subject to applicable law, Operator 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; (e) August Health’s provision of the Platform to Operator or any Authorized User is prohibited by applicable law; or (f) any Operator Data submitted, posted, or otherwise transmitted by or on behalf of Operator or an Authorized User through the Platform may infringe or otherwise violate any third party’s intellectual property or other rights; (ii) any vendor of August Health has suspended or terminated August Health’s access to or use of any Third-Party Products required to enable Operator to access the Platform; or (iii) in accordance with Section 5.1 (any such suspension described in sub-clauses (i), (ii), or (iii), a “Service Suspension”). August Health shall use commercially reasonable efforts to provide written notice of any Service Suspension to Operator and to provide updates regarding resumption of access to the Platform following any Service Suspension. August Health shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. August Health will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Operator or any Authorized User may incur as a result of a Service Suspension.
2.6. Business Contact Data. Notwithstanding anything to the contrary in this Agreement, August Health may process Business Contact Data: (i) to manage the relationship with Operator; (ii) to carry out August Health’s core business operations, such as accounting, audits, tax preparation and for filing and compliance purposes; (iii) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Platform, and to prevent harm to August Health, Operator, and August Health’s other Operators; (iv) for identity verification purposes; and (v) to comply with applicable laws, rules, and regulations relating to the processing and retention of Personal Information to which August Health is subject.
3. Operator Responsibilities.
3.1. General. Operator is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Operator, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Operator 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 this Agreement if taken by Operator will be deemed a breach of this Agreement by Operator. Operator shall comply with all applicable laws in its provision of any Resident Data to August Health hereunder, (via the Platform or otherwise), and shall be solely responsible for obtaining all necessary authorizations, consents, or other rights required to manage Resident Data within the Platform.
3.2. Billing Supplemental Terms. If Operator uses the August Health Billing & Payments module (valid where checked in an applicable Order), Operator hereby provides August Health with all necessary authorizations, consents, and permissions required to collect applicable payments from Residents on behalf of Operator’s various Communities (“Resident Fees”). Operator agrees and acknowledges that it will remain solely responsible for presenting appropriate end-user terms to Residents regarding billing functionality. August Health shall use commercially reasonable efforts to collect or to cause its payments processor to collect applicable payments due from Residents to Operator for all Resident Fees using its PCI-compliant billing payments provider. Operator agrees and acknowledges that August Health’s billing functionality is provided through a PCI-compliant third-party provider to facilitate secure payment processing for Operator's Residents. Operator further acknowledges and agrees that August Health is not liable for any failure by Residents to make payments of Resident Fees owed to the Operator, nor does August Health guarantee the successful collection of Resident payments. Any shortfall or unpaid amount remains the sole responsibility of the Operator, and Operator accepts full liability for such instances and amounts, and shall pay August Health all Fees due hereunder regardless. August Health provides tools for transaction management, reporting, and ledger updates to aid Operators in tracking payments; however, any reliance on these tools does not transfer financial responsibility to August Health. To the extent August Health or its payment processor fronts or advances any Resident Fees to Operator, but is unable to collect applicable Resident Fees in full, Operator accepts full and sole financial responsibility for any shortfall payments due to August Health hereunder, and shall make all such payments in accordance with the terms of this Agreement. Operator’s failure to comply with the provisions of this Section (which such failure will be determined in August Health’s sole discretion) shall constitute a material breach of this Agreement, for which August Health will be entitled to terminate this Agreement within five (5) days if such breach remains uncured. August Health may increase the Card Transaction Volume Fee or Transaction Per Item Fee if Operator's (a) American Express credit card payment dollar volume exceeds twenty percent (20%); (b) corporate credit card payment volume exceeds ten percent (10%) of total monthly credit card payments; or (c) credit card payments for transaction amounts greater than one thousand dollars ($1,000.00) exceeds three percent (3%) of total monthly credit card payments. Such increases shall become effective only after August Health has provided Operator written notice setting forth the changes.
3.3. Operator Data Restrictions and Limited License. Operator may not upload to the Platform any Operator Data it does not have sufficient rights to upload. Operator hereby grants to August Health a limited, non-exclusive, royalty-free, worldwide license to use and display the Operator Data, and perform all acts with respect to the Operator Data solely as may be necessary for August Health to provide the Platform to Operator and Authorized Users during the Subscription Period.
3.4. Third-Party Products. August Health may from time to time make Third-Party Products available to Operator or August Health may allow for certain Third-Party Products to be integrated with the Platform to allow for the transmission of Operator Data from such Third-Party Products into the Platform. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. August Health is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. If Operator does not agree to abide by the applicable terms for any such Third-Party Products, then Operator should not install or use such Third-Party Products. By authorizing August Health to transmit Operator Data from Third-Party Products into the Platform, Operator represents and warrants to August Health that it has all right, power, and authority to provide such authorization.
3.5. Operator Control and Responsibility. Operator has and will retain sole responsibility for: (i) all Operator Data , including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Operator or any Authorized User in connection with the Platform, including data processing instructions with respect to Resident Data; (iii) Operator's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Operator or through the use of third-party platforms or service providers ("Operator Systems"); (iv) the security and use of Operator's and its Authorized Users' access credentials; and (v) all access to and use of the Platform directly or indirectly by or through the Operator Systems or its or its Authorized Users' access credentials, with or without Operator's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
4. Support.
During the Subscription Period, August Health shall use commercially reasonable efforts to provide Operator with a Platform monthly uptime commitment of 99.5%. If August Health fails to meet the monthly uptime target of 99.5%, Operator will be entitled to a service credit equal to 3% of the monthly subscription Fee for each day below the target, up to a maximum of 15% of the monthly Fee. Service credits must be requested in writing within thirty (30) days of the applicable downtime, and will be applied to future invoices for Platform Fees. Service credits are Operator's sole and exclusive remedy for August Health's failure to meet the uptime target.
5. Fees and Taxes.
5.1. Fees. Operator shall pay August Health the fees (“Fees”) at the pricing identified in the Order or other referenced Documentation. Fees paid by Operator are non-refundable. Operator shall make all payments hereunder in US dollars by ACH, check, or credit or debit card payment. If Operator makes payment by ACH, it agrees to fill out an appropriate authorization form for the same upon execution of an Order. If Operator pays online via credit or debit card, Operator agrees to be bound by the Stripe, Inc. Services Agreement available at https://stripe.com/us/legal. August Health reserves the right to increase or otherwise change Fees and pricing prior to the commencement of any Renewal Subscription Term, provided that it gives Operator at least sixty (60) days prior written notice.
5.2. Taxes. All Fees and other amounts payable by Operator under this Agreement are exclusive of taxes and similar assessments. Operator 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 Operator hereunder, other than any taxes imposed on August Health’s income.
6. Confidential Information.
6.1. Definition. From time to time during the Subscription Period, 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 that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Except for Personal 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 without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
6.2. Duty. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information 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 this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
6.3. Return of Materials; Effects of Termination/Expiration. 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-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; 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 this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Data Security and Processing of Personal Information.
7.1. Security Measures. August Health will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Operator Data (including Personal Information as part of Resident Data and Business Contact Data) from unauthorized access, use, alteration, or disclosure.
7.2. Processing of Personal Information. August Health’s rights and obligations with respect to Personal Information that it collects directly from Operator in the form of Business Contact Data are set forth and governed by the terms of this Agreement and August Health’s Privacy Policy. To the extent Operator provides Personal Information to August Health within Operator Data, August Health will act as a processor or service provider with respect to such information, while Operator shall act as a controller, as each of those terms is defined under applicable law.
8. Intellectual Property Ownership; Feedback.
8.1. August Health IP. Operator acknowledges that, as between Operator and August Health, August Health owns all right, title, and interest, including all intellectual property rights, in and to the August Health IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
8.2. Operator Data. August Health acknowledges that, as between August Health and Operator, Operator owns all right, title, and interest, including all intellectual property rights, in and to the Operator Data.
8.3. Feedback. If Operator or any of its employees or contractors sends or transmits any communications or materials to August Health by mail, email, telephone, or otherwise, suggesting or recommending changes to the August Health IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), August Health is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
9. Warranty Disclaimer.
THE AUGUST HEALTH IS PROVIDED “AS IS” AND AUGUST HEALTH AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AUGUST HEALTH 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. AUGUST HEALTH MAKES NO WARRANTY OF ANY KIND THAT THE AUGUST HEALTH IP, OR RESULTS OF THE USE THEREOF, WILL MEET OPERATOR’S, COMMUNITIES’, RESIDENTS’ OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. AUGUST HEALTH WILL HAVE NO LIABILITY FOR DECISIONS BASED ON INFORMATION, METRICS, INSIGHTS OR DATA PROVIDED VIA THE PLATFORM, OR OPERATOR’S USE THEREOF OR RELIANCE THEREON. AUGUST HEALTH DOES NOT GUARANTEE ANY SPECIFIC BILLING OUTCOMES OR ABILITIES TO COLLECT RESIDENT FEES, AND AUGUST HEALTH DOES NOT MAKE ANY WARRANTIES ABOUT ITS ABILITY TO COLLECT RESIDENT FEES.
10. Indemnification.
10.1. August Health Indemnification.
(a) August Health shall indemnify, defend, and hold harmless Operator from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Operator resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) brought against Operator alleging that the Platform, or any use of the Platform in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights.
(b) If such a claim is made or appears possible, Operator agrees to permit August Health, at August Health’s sole discretion: to (i) modify or replace the Platform, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Operator to continue use. If August Health determines that neither alternative is reasonably commercially available, August Health may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Operator.
(c) This Section 10.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Platform in combination with data, software, hardware, equipment, or technology not provided by August Health or authorized by August Health in writing; (ii) modifications to the Platform not made by August Health; (iii) Operator Data; or (iv) Third-Party Products.
10.2. Operator Indemnification. Operator shall indemnify, hold harmless, and, at August Health’s option, defend August Health and its employees, contractors, officers, directors and agents, from and against any Losses resulting from any Third-Party Claim alleging that the Operator Data, or any use of the Operator Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property, proprietary, privacy, contractual or other rights and any Third-Party Claims based on Operator’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Platform in a manner not authorized by this Agreement; or (iii) use of the Platform in combination with data, software, hardware, equipment or technology not provided by August Health or authorized by August Health in writing; in each case provided that Operator may not settle any Third-Party Claim against August Health unless August Health consents to such settlement, and further provided that August Health 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. Operator shall further indemnify August Health, its employees, contractors, officers, directors and agents for any Losses resulting from August Health’s inability to collect Resident Fees.
10.3. Sole Remedy. SECTION 10.1 SETS FORTH OPERATOR’S SOLE REMEDIES AND AUGUST HEALTH’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. Limitations of Liability. IN NO EVENT WILL AUGUST HEALTH 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: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH IT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AUGUST HEALTH’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, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO AUGUST HEALTH BY OPERATOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING EVENT GIVING RISE TO THE CLAIM.
12. Subscription Period and Termination.
12.1. Subscription Period. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period identified in the Order (the “Initial Subscription Period”). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Period”).
12.2. Termination. In addition to any other express termination right set forth in this Agreement:
(a) August Health may terminate this Agreement (included any underlying Orders), effective on written notice to Operator, if Operator: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after August Health’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.3 or Section 6;
(b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
12.3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Operator shall immediately discontinue use of the August Health IP and, without limiting Operator’s obligations under Section 6, Operator shall delete, destroy, or return all copies of the August Health IP and certify in writing to the August Health that the August Health IP has been deleted or destroyed. Prior to termination or expiration of this Agreement, Operator shall make reasonable efforts to export all Operator Data it requires from the Platform. No expiration or termination will affect Operator’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Operator to any refund.
12.4. Survival. This Section 12.4 and Sections, 6, 8, 11 and 13 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
13. Miscellaneous.
13.1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement 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 this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
13.2. 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 this Agreement (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), via email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
13.3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’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.
13.4. Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
13.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement 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 this Agreement 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.
13.6. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California 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 California.
13.7. Dispute Resolution. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other, must be finally settled by arbitration in San Francisco, California using the English language in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (formerly operating as, Judicial Arbitration and Mediation Services, Inc.) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator will be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator(s) will have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party will have the right to seek equitable relief from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located San Francisco County.
13.8. Assignment. Operator 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 August Health. 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. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
13.9. Export Regulation. The Platforms utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Operator shall not, directly or indirectly, export, re-export, or release the Platform or the underlying software or technology to, or make the Platform 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. Operator 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 Platform or the underlying software or technology available outside the US.
13.10. US Government Rights. Each of the Documentation and the software components that constitute the Platform is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Operator is an agency of the US Government or any contractor therefor, Operator only receives those rights with respect to the Platform and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
13.11. 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 Operator, Section 2.3, 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.
13.12. Publicity. August Health may identify Operator as a user of the Platform and may use Operator’s name, logo, and other trademarks in August Health’s Operator list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Operator). Upon August Health’s request, Operator shall consider participating with August Health in authoring and publishing a case study documenting its use of the Platform.
14. Payment Processing Agreement – Terms and Conditions.
14.1 Processing Services. This section constitutes the “Payment Processing Agreement” as referenced in the Processing Terms and Conditions and governs Processing Services, available at https://legal.rainforestpay.com/processingterms. In addition to its core service offerings, Platform, through August Health Billing & Payments, offers embedded payments processing services, which includes credit card, debit card, ACH, and other payment processing services, as may be offered from time-to-time (collectively the “Processing Services''). If Operator uses Processing Services to bill Residents on Operator’s behalf, Operator agrees to be bound by the Processing Terms and Conditions, which may be amended at any time on notice.
14.2 August Health Billing & Payment Processing Fees. Related to the Processing Services, Platform will charge Merchant according to the fees outlined in the Order Form, with those fees titled “August Health Billing & Payment Processing Fees.”
14.3 Fair use policy. Platform may increase the Card Transaction Volume Fee or Transaction Per Item Fee if Merchant's (a) American Express credit card payment dollar volume exceeds twenty percent (20%); (b) corporate credit card payment volume exceeds ten percent (10%) of total monthly credit card payments; or (c) credit card payments for transaction amounts greater than one thousand dollars ($1,000.00) exceeds three percent (3%) of total monthly credit card payments. Such increases shall become effective only after Platform has provided Merchant written notice setting forth the changes.
14.4 Payment Processing Agreement Term. The term of the Payment Processing Agreement runs concurrently with the term set forth in the Order Form between Operator and Platform.