These Pacsgear Terms and Conditions (the "Terms") govern the sale of Pacsgear licenses, equipment, and/or related services by the seller (“Hyland”) named on the quote or invoice from which these Terms are linked, to the customer (“Customer”) named on such quote or invoice. Notwithstanding anything herein to the contrary, however, if a written contract signed by both parties is in existence covering the sale of the Pacsgear licenses, equipment and/or related services identified on the applicable quote or invoice, the terms and conditions of said contract shall prevail with respect to the Pacsgear licenses, equipment and/or related services governed by such contract.
1. DEFINED TERMS. Certain capitalized terms used in this these Terms have the meanings set forth below:
1.1. “Business Day” means, for customers in Europe, 8:00am through 5:00pm CET Time (UTC +1); and for all other customers, 7:00-7:00 US Central Time (UTC-5), Monday through Friday excluding certain locally--observed holidays.
1.2. “Delivery” (including “Deliver” or “Delivered”) means: (i) with respect to the Software other than Device Software, the date that the Software has been shipped or made available to the Customer for download; and (ii) with respect to the Equipment and associated Device Software, the date that the applicable Equipment has been shipped in accordance with Section 2.8 of these Terms.
1.3. “Device Software” means software for use on Equipment purchased by Customer from Hyland under these Terms.
1.4. “Documentation” means the end user manuals published by Hyland which relate to the functional, operational or performance characteristics of the Software.
1.5. “Equipment” means equipment or hardware purchased by Customer from Hyland under these Terms.
1.6. “Equipment Support” means support for Equipment and related Device Software described in Section 5.2 of these Terms.
1.7. “License Agreement” means the End User License Agreement that is included in the packaging with the Software (other than Device Software) upon delivery and/or is included at the “Login” screen of such Software.
1.8. “Maintenance and Support” means the services described in Section 5 with respect to Software Support or Equipment Support, or both, as the case may be.
1.9. “Professional Services” means any or all of the professional services provided by Hyland under a Services Proposal.
1.10. “Retired Software” means: (i) any version of the Software licensed by Customer from Hyland under the License Agreement which is identified as being retired on Hyland’s applicable secure end user web site; and (ii) any version of the Software other than the then-current version and the immediately preceding version.
1.11. “Services Proposal” is defined in Section 4.1.
1.12. “Software” means Pacsgear software products for which Customer submits a written purchase order to Hyland that Hyland accepts and fulfills, including, in each case, third party software bundled by Hyland together with the Pacsgear products as a unified product; (2) all Upgrades and Enhancements of the software products described in clause (1) which Customer properly obtains through Maintenance and Support; and (3) except as otherwise expressly stated in these Terms, Device Software.
1.13. “Software Support” means support for the Software (other than Device Software) as described in Section 5.1 of these Terms.
1.14. “Technical Contact” means a primary contact person designated by Customer who has read, comprehends, and follows the operating instructions provided by the manufacturer of the Device Software, Equipment and/or Software prior to requesting such support, and who has full access and authority if Hyland requires Customer’s assistance to research or duplicate a reported issue. Customer may change the Technical Contact at any time upon notice to Hyland.
1.15. “Upgrades and Enhancements” means any and all new versions, improvements, modifications, upgrades, updates, fixes and additions to Software that Hyland makes available to Customer or to Hyland’s end users generally during the term of these Terms, together with updates of the Documentation to reflect such new versions, improvements, modifications, upgrades, fixes or additions, where applicable; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Software.
1.16. “Working Hour” means the services of one (1) person for a period of one (1) hour (or any part thereof) during regular business hours, and shall include the travel time during which Hyland’s resource(s) is required to travel outside of the metropolitan area in which such Hyland resource(s) regularly works when not at a third party location; provided that time spent commuting from a local place of residence (including a hotel) to a work location in the same metropolitan area will not be included in travel time.
2. FEES; EXPENSE REIMBURSEMENTS; TAXES; PAYMENT TERMS.
2.1 MAINTENANCE PERIODS; ANNUAL MAINTENANCE FEES; PAYMENT TERMS. The initial maintenance period for Maintenance and Support relating to the Software and/or Equipment shall begin upon Delivery of the Software or Equipment, as applicable, and continue for a period of one (1) year. Maintenance and Support will thereafter renew annually, subject to mutual agreement of the parties. Hyland shall invoice Customer for the annual maintenance fees relating to the initial annual maintenance period upon Hyland’s acceptance of the purchase order for the applicable Software licenses or Equipment, and such invoice shall be paid in accordance with Section 2.6 of these Terms. Annual maintenance fees for any renewal annual maintenance period shall be invoiced at least forty-five (45) days prior to the commencement of such renewal maintenance period, and such invoice shall be due in full on or before the commencement of such renewal maintenance period.
2.2 SERVICES FEES. Except as otherwise provided in any applicable Services Proposal, Hyland shall invoice Customer for Professional Services fees monthly, in arrears, based on the number of Working Hours required to complete the project and the applicable hourly fees. Any estimates of fees or Working Hours required to complete the project are provided for convenience only and are approximations of the anticipated amount of fees and time needed to complete the project.
2.3 TRAVEL AND EXPENSES. Customer shall be responsible to pay or reimburse Hyland for all customary and reasonable out-of-pocket costs and expenses incurred by Hyland in connection with the performance of services under these Terms in accordance with Hyland’s applicable internal policy for the reimbursement of costs and expenses to its employees. Except as otherwise provided in any applicable Services Proposal, Hyland shall invoice Customer for all reimbursable costs and expenses on a monthly basis, in arrears.
2.4 TAXES AND GOVERNMENTAL CHARGES. All payments under these Terms are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Customer (other than taxes on Hyland’s income). In the event Customer is required by law to withhold taxes, Customer agrees to furnish Hyland all required receipts and documentation substantiating such payment. If Hyland is required by law to remit any tax or governmental charge on behalf of or for the account of Customer, Customer agrees to reimburse Hyland within thirty (30) days after Hyland notifies Customer in writing of such remittance. Customer agrees to provide Hyland with valid tax exemption certificates in advance of any remittance otherwise required to be made by Hyland on behalf of or for the account of Customer, where such certificates are applicable.
2.5 INVOICING. All invoices shall be sent electronically by Hyland to Customer to the attention of “Accounts Payable,” or to such other person or department as Customer may specify from time to time by written notice to Hyland. In the event any invoice contains a billing error which is discovered by Hyland, Hyland may issue a new invoice to correct the error.
2.6 GENERAL PAYMENT TERMS. So long as Customer is not in default of any payment obligations under these Terms (including any Services Proposal), except as otherwise provided in these Terms, Customer shall pay in full each invoice from Hyland net thirty (30) days from the date of Customer’s receipt of such invoice.
2.7 CERTAIN REMEDIES FOR NON-PAYMENT OR FOR LATE PAYMENT. At the election of Hyland, exercisable by written notice to Customer, any past due amounts under any Hyland invoice shall bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that such past due amounts and such accrued interest are paid in full. In the event of any default by Customer in the payment of any amounts invoiced by Hyland, which default continues unremedied for at least thirty (30) calendar days after the due date of such payment, Hyland shall have the right to suspend or cease the provision of any services under these Terms or any Services Proposal, and the delivery of any Upgrades and Enhancements of Software, to Customer unless and until such default shall have been cured.
2.8 U.S. DOLLARS; DELIVERY AND SHIPMENT OF HASPS, CDS, AND EQUIPMENT. Unless otherwise agreed by Hyland, all fees, costs and expenses under these Terms shall be determined and invoiced in, and all payments required to be made in connection with these Terms shall be made in, U.S. dollars. Delivery of HASPs, CDs, or Equipment, if any, shall be F.O.B. Hyland’s offices and Hyland will select the shipping method and carrier. With respect to Equipment, title, risk of damage and/or loss will pass to Customer at Hyland’s facility. Provided Hyland’s standard method of shipment is used, Hyland will pay transit insurance and shipping costs. Customer may request an alternate method of shipment at its own cost. For any imports of tangible product, Customer will serve as the importer of record.
2.9 INSPECTIONS: Customer will inspect and accept or reject the Equipment promptly upon delivery of the Equipment. If the Equipment is found to be damaged, Hyland will either replace the Equipment with comparable new equipment, or refund the Equipment fees paid by Customer to Hyland for the Equipment. Customer’s failure to provide Hyland written notice of rejection of the Equipment within five (5) calendar days following delivery of the Equipment to Customer will be deemed acceptance of the Equipment by Customer.
3. CERTAIN TERMS APPLICABLE TO SOFTWARE.
3.1 SOFTWARE LICENSE. Customer acknowledges and agrees its use of the Software (other than Device Software) is governed by the License Agreement. Customer is licensed to use the Device Software in connection with and only on the Equipment provided by Hyland with which it is intended to be used.
3.2 OWNERSHIP. Hyland and its suppliers own the Software, and Documentation, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the foregoing. The Software and Documentation are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Customer agrees to take all reasonable steps to protect all Software and Documentation from unauthorized copying or use. Customer agrees that nothing in these Terms or associated documents gives it any right, title or interest in the Software and Documentation, except for the limited express rights granted in this Section 3. THESE TERMS ARE NOT A WORK-FOR-HIRE AGREEMENT.
3.3 Certain Software products are priced on a Transaction volume basis and additional fees shall apply based on Transaction volume. The term “Transaction” is defined as a capture workflow transaction for a single patient accession number; for the avoidance of doubt, uploading several documents to a single accession number will count as one (1) transaction.
Upon reasonable notice to Customer, and no more than annually, Hyland shall be permitted access to Customer’s solution solely in order to measure Customer’s Transaction volume usage. Additionally, Customer shall provide reports as reasonably requested by Hyland to allow Hyland to determine Customer’s Transaction volume usage. Customer shall reasonably cooperate with Hyland with respect to its performance of such audits. Customer acknowledges and agrees that additional fees may apply based on Customer's Transaction volume usage.
4. PROFESSIONAL SERVICES.
4.1 SERVICES PROPOSAL. During the term of these Terms, Customer may request Professional Services from Hyland. Hyland and Customer will discuss the parameters of the request and Hyland will inform the Customer as to whether the Professional Services shall be performed pursuant to either: (i) a written proposal, which sets forth the Professional Services Hyland will provide to Customer and which is signed by Customer and Hyland; or (ii) a purchase order submitted by Customer and accepted by Hyland for Professional Services (a “Services Proposal”).
4.2 FULFILLMENT. Hyland will provide such Professional Services as mutually agreed under the Services Proposal. Each mutually agreed upon Services Proposal is incorporated herein by this reference as if fully rewritten herein. The parties agree that any Professional Services described in these Terms that have been performed, in whole or in part, prior to the execution of these Terms by the parties nevertheless shall be covered by these Terms.
4.3 CHANGES TO SERVICES PROPOSAL. Hyland or Customer may, at any time, reasonably request a change to any Service Proposal. Any requested change that the parties mutually accept (a “Change”) will be set forth in a written change order prepared by Hyland and agreed to and signed by both parties that specifically references the relevant Service Proposal. In the event the parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the relevant Services Proposal, either party may terminate such Service Proposal upon not less than thirty (30) days advance written notice to the other party.
5. MAINTENANCE AND SUPPORT
5.1 SOFTWARE SUPPORT. Provided that Customer is current in its payment of annual Maintenance and Support fees, Hyland will provide Customer the following assistance and support on Business Days with respect to Software (other than the Device Software): (a) telephone or online technical support related to problems reported by a Technical Contact and associated with the operation of any Software; (b) reasonable efforts to correct any error in the Software reported by a Technical Contact, which is confirmed by Hyland and causes a significant nonconformity to Documentation (which may include a reasonable work-around), according to the severity of the nonconformity as determined by Hyland; and (c) Upgrades and Enhancements, if and when released by Hyland, in accordance with its policies. Hyland may elect to correct an error in the current available or in the next available commercially released version of the Software, such that Customer may be required to implement an Upgrade and Enhancement in order to obtain the correction. Customer acknowledges and agrees that, with respect to Hyland’s end users generally, Hyland has the right, at any time, to change the specifications and operating characteristics of the Software and Hyland’s policies respecting Upgrades and Enhancements and the release thereof. In requesting Maintenance and Support services, Customer will report in accordance with Hyland’s then-applicable reporting policies. Maintenance and Support is not available for Retired Software.
5.2 EQUIPMENT SUPPORT.
i. Provided that Customer is current in its payment of annual Equipment Support fees, Customer may notify Hyland of Equipment failure by submitting a support request online or calling Hyland’s Maintenance and Support team on Business Days. Hyland and Customer’s Technical Contact will cooperate to attempt to remedy any Equipment issues without need for Equipment replacement; however, if Hyland is unable to reasonably correct an Equipment failure, Customer may request Hyland to issue Replacement Equipment (as defined below) to Customer. Customer requests for Replacement Equipment processed by Hyland before 2:00pm PT (14:00 CET), will be shipped to Customer on the same day. For requests processed by Hyland after 2:00pm PT (14:00 CET), Hyland will ship Replacement Equipment to Customer on the following Business Day. As used herein, “Replacement Equipment” shall mean used Equipment that Hyland has restored or refurbished to satisfactory operating condition. Hyland uses new and reconditioned parts made by various manufacturers in performing repairs and providing replacement parts.
ii. Customer has ten (10) Business Days from receipt of Replacement Equipment to return the defective Equipment to a location specified by Hyland. Returned Equipment becomes the property of Hyland. If the defective Equipment is not received at the specified location within ten (10) Business Days of Customer’s receipt of the Replacement Equipment, Customer will pay to Hyland an amount equal to the replacement cost of a new, similar product.
iii. For any shipment of Replacement Equipment to Customer, Hyland will pay all freight expenses, and bear the risk of loss during shipment. For any shipment of defective Equipment to Hyland during the ten (10) Business Day period, Hyland will pay all freight expenses, obtain adequate insurance for replacement cost, and bear the risk of loss during shipment provided Customer follows Hyland’s guidelines for return of the Equipment provided to Customer.
iv. Equipment Support is only available for five years from the date of purchase of the Equipment.
v. For Device Software, provided that Customer is current in its payment of Equipment Support fees, on Business Days, Hyland will provide to Customer’s Technical Contact, telephone or online technical support related to: (i) problems associated with the operation of any Device Software; and (ii) installation of Upgrades and Enhancements to the Device Software.
5.3 GENERAL EXCLUSIONS. Hyland is not responsible for providing, or obligated to provide, Maintenance and Support: (1) in connection with any errors or problems that result in whole or in part from any alteration, revision, change, enhancement or modification of any nature of the Software or Equipment, or from any error or defect in any configuration of the Software or Equipment, which activities in any such case were undertaken by any party other than Hyland; (2) in connection with any error or defect if Hyland has previously provided corrections for such error or defect which Customer fails to implement; (3) in connection with any errors or problems that have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the database, operating system, third party software (other than third party software embedded in the Software by Hyland), hardware (other than Equipment under Equipment Support) or any system or networking utilized by Customer; (4) if the Software, Equipment, or related software or systems have been subjected to abuse, misuse (including use contrary to the Documentation, manufacturer’s specifications, or duty cycles, or with software or hardware not supported by the applicable Software), improper handling, accident or neglect; or (5) if any party other than Hyland, or an authorized subcontractor specifically selected by Hyland, has provided any services in the nature of Maintenance and Support to Customer with respect to the Software or Equipment. Maintenance and Support does not include any services that Hyland may provide in connection with assisting or completing an upgrade of Software with any available Upgrade and Enhancement except as stated with respect to Device Software. Maintenance and Support does not include: (i) updates or upgrades to the Equipment in the event that the manufacturer modifies, revises, or updates the product or the product’s specifications; (ii) replacement of any “consumable” parts or components; on-site services, system administration, system engineering, or programming services of any kind; (iii) or electrical services or cabling external to the Equipment.
5.4 LAPSED MAINTENANCE AND SUPPORT; REINSTATEMENT: If Maintenance and Support has lapsed for any reason, reinstatement of Maintenance and Support will be at Hyland’s discretion, and subject to re-instatement fees; provided, that if the Maintenance and Support to be reinstated includes Equipment Support, Hyland reserves the right to inspect and, if necessary, repair the Equipment, and Customer agrees to pay for such inspection and any necessary repairs at Hyland’s then current rates for parts, labor and expenses, prior to reinstating Equipment Support.
5.5 EXCLUDED SERVICES. If Customer requests services of any type that are not covered by Maintenance and Support, such services will be subject to the payment of additional Professional Services fees, including Hyland’s then-current fees for parts, labor and expenses, as applicable.
5.6 CUSTOMER OBLIGATIONS: Hyland’s obligation to provide Maintenance and Support as described in this Section 5 is subject to Customer’s compliance with these Terms, including without limitation the obligations described in Section 6 of these Terms.
6. CUSTOMER OBLIGATIONS.
6.1 OPERATION AND PROTECTION OF SYSTEMS. Customer acknowledges and agrees that it is solely responsible for the operation, supervision, management and control of the Software and all related hardware and software (including the database software); and for obtaining or providing training for its personnel; and for instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use. CUSTOMER UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES.
6.2 REQUESTING EQUIPMENT SUPPORT: Equipment Support will be provided only if: (i) Customer provides to Hyland such information as is reasonably necessary for Hyland to provide such Equipment Support (including make, model, serial number, and location) and all such information is true, accurate and complete; and (ii) Equipment and Device Software has been at all times operated in accordance with the manufacturer’s specifications, including under site conditions, within the environmental range, and within the duty cycles specified by its manufacturer, Customer will provide Hyland with access to systems as reasonably necessary for Hyland to investigate and attempt to identify and verify the problem. Customer will work with Hyland support personnel during the problem isolation process, as reasonably needed.
6.3 ON-LINE ACCESS. Customer acknowledges and agrees that Hyland may require on-line access to the Software or Equipment installed on Customer’s systems in order to provide Maintenance and Support and/or Professional Services. Accordingly, Customer shall install and maintain means of communication and the appropriate communications software as mutually agreed upon by Hyland and Customer and an adequate connection with Hyland to facilitate Hyland’s on-line Maintenance and Support and/or Professional Services. Such right of access and use shall be provided at no cost or charge to Hyland.
6.4 ASSISTANCE. Customer agrees that in connection with any Professional Services provided by Hyland, Customer: (a) will cooperate with and assist Hyland in the performance of such Professional Services; (b) provide the resources specified in the relevant Services Proposal; and (c) will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of the relevant Services Proposal.
6.5 THIRD PARTY SOFTWARE RIGHTS. Notwithstanding any contrary terms, if Customer requests Hyland to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Hyland that Customer has all necessary rights to allow Hyland to do so.
6.6 SAFE WORK ENVIRONMENT. Customer will be responsible for and shall ensure that while Hyland employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
7. LIMITED WARRANTIES.
7.1 LIMITED WARRANTY FOR SOFTWARE. Limited warranties for the Software are provided under the License Agreement.
7.2 LIMITED WARRANTY FOR SERVICES.
(a) For a period of sixty (60) days from the date of completion of Professional Services or Maintenance and Support services, Hyland warrants to Customer that such services have been performed in a good and workmanlike manner and substantially according to industry standards. This warranty specifically excludes non-performance issues caused as a result of incorrect data or incorrect procedures used or provided by Customer or a third party or failure of Customer to perform and fulfill its obligations under these Terms.
(b) Hyland’s sole obligation, and Customer’s sole and exclusive remedy for any non-conformities to the express limited warranties under paragraph (a) shall be as follows: provided that, within the applicable 60-day period, Customer notifies Hyland in writing of the non-conformity, Hyland will use reasonable efforts to re-perform the non-conforming services in an attempt to correct the non-conformity(ies). If Hyland is unable to correct such non-conformity(ies) after a reasonable period of time, Customer’s sole and exclusive remedy shall be: (a) in the case of Professional Services, to terminate the Services Proposal under which the non-conforming Services have been performed, in which event Hyland will refund to Customer any portion of the services fees under such Services Proposal relating directly to such non-conforming Professional Services paid prior to the time of such termination; or (b) in the case of Maintenance and Support, to exercise its termination rights under these Terms.
8. DISCLAIMER OF WARRANTIES.
8.1 EXCEPT FOR THE WARRANTIES PROVIDED BY HYLAND AS EXPRESSLY SET FORTH IN SECTION 7 OF THESE TERMS, HYLAND AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, EQUIPMENT, INFORMATION, MAINTENANCE AND SUPPORT OR PROFESSIONAL SERVICES PROVIDED OR ANY SERVICES PROPOSAL. HYLAND AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. HYLAND AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, PROFESSIONAL SERVICES, SOFTWARE OR EQUIPMENT PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR EQUIPMENT PROVIDED WILL BE UNINTERRUPTED. HYLAND DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
8.2 CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, EQUIPMENT, MAINTENANCE AND SUPPORT AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES.
8.3 HYLAND MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTWARE USED IN ANY NON-PRODUCTION SYSTEM AND PROVIDES ANY SUCH SOFTWARE “AS IS.”
8.4 No oral or written information given by Hyland, its agents, or employees shall create any additional warranty. No modification or addition to the limited warranties set forth in these Terms is authorized unless it is set forth in writing, references these Terms, and is signed on behalf of Hyland by a corporate officer.
9. LIMITATIONS OF LIABILITY.
9.1 EXCEPT AS PROVIDED IN SECTION 9.3 BELOW, IN NO EVENT SHALL EITHER PARTY (INCLUDING, IN THE CASE OF HYLAND, ITS SUPPLIERS), BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION DAMAGES OR EXPENSES, THE COSTS OF SUBSTITUTE SOFTWARE, EQUIPMENT, OR SERVICES, LOSSES RESULTING FROM ERASURE, DAMAGE, DESTRUCTION OR OTHER LOSS OF FILES, DATA OR PROGRAMS OR THE COST OF RECOVERING SUCH INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
9.2 EXCEPT AS PROVIDED IN SECTION 9.3 BELOW, HYLAND’S AND ITS SUPPLIERS’ LIABILITY FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, INCLUDING BUT NOT LIMITED TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES OR THE USE OR INABILITY TO USE SOFTWARE OR EQUIPMENT, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO HYLAND AS DESCRIBED IN THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
9.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIMITATIONS OF SECTIONS 9.1 AND 9.2 ABOVE, AS APPLICABLE, SHALL NOT APPLY WITH RESPECT TO ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF THE RESPONSIBLE PARTY’S BREACH OF SECTION 10 OF THESE TERMS (CONFIDENTIAL INFORMATION), OR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF CUSTOMER’S OR A CONTRACTOR’S BREACH OF THE LICENSE AGREEMENT OR 3.2 OF THESE TERMS.
9.4 CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IS AN ADVISORY DEVICE AND IS NOT INTENDED TO SUBSTITUTE FOR THE PRIMARY DEFENSES AGAINST DEATH OR INJURY DURING MEDICAL DIAGNOSIS, TREATMENT OR SIMILAR APPLICATIONS, WHICH DEFENSES SHALL CONTINUE TO BE THE SKILL, JUDGMENT AND KNOWLEDGE OF THE CUSTOMER’S USERS OF THE SOFTWARE.
10. CONFIDENTIAL INFORMATION.
10.1 “Confidential Information” shall be such information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of the Terms by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without breach of its obligations.
10.2 Each party agrees that, with respect to the Confidential Information of the other party, or its affiliates, such party as a recipient shall use the same degree of care to protect the other party’s Confidential Information that such party uses to protect its own confidential information, but in any event not less than reasonable care, and not use (except in performance of services described in these Terms) or disclose to any third party any such Confidential Information, except as may be required by law or court order. Each party shall be liable and responsible for any breach of this Section 10 committed by any of such party’s employees, agents, consultants, contractors or representatives.
11.1 TERM. These Terms shall continue in full force and effect unless and until terminated in accordance with any of the provisions of Section 11.2 or any other provision of these Terms which expressly provides rights of termination or non-renewal.
(a) By Customer. Customer may terminate these Terms or a Services Proposal, in its entirety, for any reason or for no reason, upon not less than thirty (30) days advance written notice to Hyland to such effect.
(b) By Either Party. Either party may terminate these Terms or a Services Proposal, in each case in its entirety, effective immediately upon written notice to the other party, if the other party has committed a breach of a material provision of these Terms or such Services Proposal and has failed to cure the breach within thirty (30) days after the receipt of written notice of the breach given by the non-breaching party.
11.3 CERTAIN EFFECTS OR CONSEQUENCES OF TERMINATION; SURVIVAL OF CERTAIN PROVISIONS.
(a) Software and Documentation. Upon any termination of the License Agreement in its entirety, any license to use the Software will automatically terminate without other or further action on the part of any party; and Customer shall immediately: (1) discontinue any and all use of the Software and Documentation; and (2) either (A) return the Software and Documentation to Hyland, or (B) with the prior permission of Hyland, destroy the Software and Documentation and certify in writing to Hyland that Customer has completed such destruction.
(b) Generally. Any termination will not discharge or otherwise affect any pre-termination obligations of either party existing under these Terms or an applicable Services Proposal at the time of termination, and all liabilities which have accrued prior to the date of termination shall survive. In the event of any termination of a Services Proposal, Customer agrees to compensate Hyland for all Professional Services already performed prior to, and including, the date of termination, except to the extent that Hyland has breached its obligations to perform such Professional Services and such breach is the cause of such termination. In the event that Customer terminates these Terms for cause due to Hyland’s breach, Customer shall be entitled to a pro rata refund of annual maintenance fees actually paid for the maintenance period which terminates as a result of such termination; otherwise, Customer is not entitled to any refund of annual maintenance fees paid.
(c) Survival of Certain Obligations. All provisions of these Terms or of an applicable Services Proposal, which by their nature extend beyond the expiration or termination of these Terms will survive and remain in effect until all obligations are satisfied, including, but not limited to, Sections 3.2 and Sections 8-13.
12. FORCE MAJEURE. No failure, delay or default in performance of any obligation of a party to these Terms (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section 12 shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under these Terms is postponed or extended pursuant to this Section 12 for longer than ninety (90) calendar days, the other party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate these Terms.
13. GENERAL PROVISIONS.
13.1 GOVERNING LAW; JURISDICTION. These Terms and any claim, action, suit, proceeding or dispute arising out of these Terms shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Ohio (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, each as amended), without regard to the conflicts of laws provisions thereof. Venue and jurisdiction for any action, suit or proceeding arising out of these Terms shall vest exclusively in the federal or state courts of general jurisdiction located in Cuyahoga County, Ohio.
13.2 INTERPRETATION. The headings used in these Terms are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in these Terms shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to these Terms.
13.3 WAIVER. No waiver of any right or remedy on one occasion by either party shall be deemed a waiver of such right or remedy on any other occasion.
13.4 INTEGRATION. These Terms, including any Service Proposal, set forth the entire agreement and understanding between the parties pertaining to the subject matter and merge all prior agreements, negotiations and discussions between them on the same subject matter. These Terms shall not be supplemented or modified by any course of performance, course of dealing or trade usage. Customer specifically acknowledges and agrees that any other terms varying from or adding to these Terms, whether contained in any purchase order or other electronic, written or oral communication made from Customer to Hyland are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by Hyland. These Terms will prevail over any conflicting stipulations contained or referenced in any other document.
13.5 NOTICES. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under these Terms shall be in writing and shall be deemed one day after receipted delivery to a reputable, national overnight courier, specifying next day delivery and addressed to the address set forth on the invoice to which these Terms are linked.
13.6 BINDING EFFECT; NO ASSIGNMENT. These Terms shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign, transfer or sublicense all or part of these Terms or its rights or obligations under these Terms, in whole or in part, to any other person or entity without the prior written consent of the other party; provided that such consent shall not be unreasonably withheld in the case of any assignment or transfer by a party of these Terms in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of such party’s assets that assumes in writing all of such party’s obligations and duties under these Terms. Any assignment made without compliance with the provisions of this Section 13.6 shall be null and void and of no force or effect.
13.7 SEVERABILITY. In the event that any term or provision of these Terms is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of these Terms is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of these Terms.
13.8 SUBCONTRACTING. Hyland may subcontract all or any part of the services. Hyland shall remain responsible to Customer for the provision of any subcontracted services.
13.9 INDEPENDENT CONTRACTOR. The parties acknowledge that Hyland is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing any services.