Terms of Service with HIPAA Inclusion

MASTER SUBSCRIPTION AGREEMENT

1. SCOPE OF AGREEMENT AND GRANT OF LICENSE

1. Scope of Agreement.  The API Guys provides a subscription-based data integration service (“Service”) that enables automated synchronization of data between Customer’s source systems and destination systems using proprietary integration software and APIs. The Service includes data mapping, transformation, and synchronization capabilities to maintain consistency between the specified systems. Access to the Service is provided pursuant to this Agreement, with the specific commercial terms set forth in an order form executed by the parties (each, an “Order Form”). Access to the Service includes use of any associated documentation, report templates, screen layouts, and other materials made available by The API Guys to Customer in connection with the Service (the “Documentation”). 

2. Access to Service.  Subject to the terms and conditions of this Agreement, The API Guys hereby grants to Customer a limited, non-exclusive and non-transferable right during the applicable Subscription Term (as defined below) to access the Software (in object code form only) via the Service and to use the Service solely for its internal business purposes as set forth in this Agreement.  Access to the Software and Documentation is provided as part of the Service, and as such they are licensed, not sold. All right, title and interest in and to the Service, the Software and the Documentation, and all copies thereof, remain exclusively with The API Guys and its licensors.
   1.  Integration Requirements. Customer is responsible for maintaining valid licenses and access credentials for all source and destination systems being integrated. Customer shall provide The API Guys with necessary API access, credentials, and permissions to enable the Service. Customer acknowledges that the Service’s functionality depends on the continued availability and proper functioning of Customer’s systems and their respective APIs. Changes to any integrated system’s APIs or data structures may require modifications to the Service integration. 

3. Restrictions.  Customer shall not, and shall not attempt to (and shall not authorize or allow Authorized Users or any third party to attempt to):  (a) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Software in whole or in part; (b) modify, adapt, create derivative works based upon, or translate the Software; or (c) assign, transfer, re-license, sublicense, lease, loan, resell, distribute, or otherwise grant any rights in the Software or the Service in any form to any other party, including commercial time-sharing, rental, or service bureau use. 

4. Authorized Users.  The Service shall be used solely by employees and contractors of Customer authorized by Customer to use the Service under the rights granted pursuant to this Agreement and for which all applicable fees have been paid (“Authorized Users”).  Customer shall cause all Authorized Users to comply with Customer’s obligations under this Agreement and shall be responsible for any noncompliance with such obligations by any Authorized User.  

5. HIPAA Compliance And Business Associate Agreement.  The parties acknowledge that Customer is a Covered Entity and The API Guys is a Business Associate under HIPAA. The parties shall execute The API Guys’s Business Associate Agreement (“BAA”), which is incorporated by reference into this Agreement. In the event of any conflict between this Agreement and the BAA regarding the use or disclosure of Protected Health Information (as defined in HIPAA), the terms of the BAA shall control.

2. TERM OF AGREEMENT, SUBSCRIPTION TERM AND TERMINATION

1. Term of Agreement and Order Form.  The term of this Agreement shall commence upon the Effective Date and continue until expiration or termination of the last Order Form.  The initial subscription term of the Service shall be specified in the Order Form (the initial subscription term and any renewal terms, collectively, the “Subscription Term”).

2. Termination.  Either party may, at its option and without further notice, immediately terminate this Agreement and the licenses granted hereunder if the other party:  (a) breaches any material obligation under this Agreement and such breach is not cured within thirty (30) days after the receipt of written notice of the alleged breach; (b) admits in writing its inability to pay its debts generally as they become due; (c) makes a general assignment for the benefit of creditors; (d) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; (e) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent; (f) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (g) ceases to do business as itself or through a successor.

3. Effect of Termination. Upon the effective date of termination of this Agreement, all licenses granted hereunder shall terminate, and Customer shall immediately cease any and all use of the Service. The terms of Sections 2-5, 7 and 9-10 shall survive termination or expiration of this Agreement.

3. SERVICES FEES AND PAYMENT TERMS

3.1 Subscription Fees. Customer shall pay the subscription fees specified in the Order Form (“Subscription Fees”). 

3.2 Annual Subscriptions. Customer may elect to subscribe on an annual basis at the discounted rate specified in the Order Form. Annual subscriptions will automatically renew for additional one-year terms unless either party provides written notice of non-renewal at least 30 days before the end of the current term.

3.3 Fee Changes. The API Guys may modify the Subscription Fees by providing at least 45 days advance written notice to Customer. Any such changes will take effect at the start of the next billing period. If Customer does not agree to a fee increase, Customer may terminate the subscription by providing written notice prior to the fee change taking effect.

3.4 Usage Fees. The API Guys may implement usage-based fees (“Usage Fees”) for certain aspects of the Service by providing at least 30 days advance written notice to Customer. The notice will specify the usage metrics, rates, and measurement periods. Usage Fees, if any, will be billed monthly in arrears based on actual usage.

3.5 Payment Terms. All fees are due within 30 days of the invoice date. All fees and charges are non-refundable and shall be paid in U.S. dollars. In the event of overdue payments, The API Guys reserves the right to charge interest from the due date at the rate of 1.5% per month (or the maximum rate permitted by law, if less) and/or to suspend the Customer’s access to the Service. All costs of collection, including reasonable attorneys’ fees, shall be paid by the Customer. 

3.6 Taxes. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities. Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on The API Guys’s income.

3.7 Suspension of Service. If any amount owing by Customer becomes overdue, The API Guys may, without limiting its other rights and remedies, suspend the Service until such amounts are paid in full. The API Guys will provide at least 10 days’ prior notice before suspending the Service for non-payment.

4. CUSTOMER DATA

As between Customer and The API Guys, Customer has and shall retain sole and exclusive title and ownership of all data and information provided by Customer in the course of utilizing the Service (“Customer Data”). The API Guys shall have the right to use Customer Data during the term of this Agreement to provide the Service and to use Customer Data both during and after the term, in aggregated and anonymized form, for the purposes of updating the Service, conducting research and development, and improving its products and services. With respect to any Customer Data that constitutes Protected Health Information, the handling of such data shall be governed by the BAA between the parties.

5. INTELLECTUAL PROPERTY RIGHTS

The API Guys and its licensors are the sole owners of the Service, Software, and Documentation (including any modifications or improvements made thereto) and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto throughout the world. Neither this Agreement nor any Order Form provides Customer or any Authorized User with title to or ownership of the Service, Software or Documentation, or to any copies or modifications thereof, but only with the limited license granted under this Agreement.

6. SUPPORT SERVICES

The API Guys provides standard technical support for the Service via email during normal business hours (9am-5pm Eastern Time, Monday-Friday, excluding holidays). Support includes assistance with integration issues, sync failures, and other technical problems directly related to the Service. Average response times and severity levels are based on the nature of the reported issue.

7. CONFIDENTIAL INFORMATION

7.1  Each party agrees that any non-public information, data, materials or know-how, including, without limitation, prices, fees, methods, software, algorithms,  documentation, drawings, processes, techniques, technical and other business information which may be supplied by one party to the other party in connection with this Agreement, whether orally or in writing, that are either designated as proprietary and/or confidential at the time of disclosure, or which, by their nature, would be considered by a reasonable person to be proprietary and/or confidential (collectively, “Confidential Information”), are confidential and constitute valuable assets of the disclosing party.  Without limiting the foregoing, The API Guys acknowledges and agrees that Customer Data are Confidential Information of Customer.

7.2  Confidential Information does not include information which (a) is or becomes publicly available other than through disclosure in breach of this Agreement, (b) is disclosed or made available by a third party without restriction and without breach of an obligation of confidentiality, (c) is independently developed by one party without use of or reference to any Confidential Information of the other party, as evidenced by applicable documentation, or (d) was already known by the receiving party at the time of disclosure.  

7.3  Each party agrees to use the Confidential Information only for the purposes specifically authorized in this Agreement, to hold such Confidential Information in strict confidence, and not to disclose any of the Confidential Information to any third party except as necessary to provide the Service or as otherwise contemplated under this Agreement; however, each party may use any feedback, suggestions or ideas which the other party provides to improve such party’s products and services without compensation.  Each party agrees to limit access to Confidential Information to those employees and contractors whose use of or access thereto is necessary for the authorized use of the Confidential Information under this Agreement.  Customer agrees not to use, or allow any third party to use, any Confidential Information to aid in the development or marketing of any product similar to or competitive with the Service.  

7.4  The obligations of non-disclosure set forth above shall not apply to the extent that a party is legally required to produce Confidential Information pursuant to a subpoena or other legal process or order of a court of competent jurisdiction, provided that such party provides prompt written notice to the other party of such process or order and produces only that portion of the applicable Confidential Information legally required under such process or order after the other party has had an opportunity to challenge such process or order.

7.5  Except as otherwise provided in this Agreement, upon written request from the disclosing party, the receiving party shall return to the disclosing party all Confidential Information in the receiving party’s possession or control, and all copies thereof, or, at the disclosing party’s option, certify its permanent, secure destruction in writing.  

8. LIMITED WARRANTY AND DISCLAIMERS 

1. Mutual Warranties.  Each party represents and warrants to the other that (a) it has the requisite power and authority to enter into the Agreement and to carry out all activities contemplated hereunder, and (b) it will comply with all applicable laws and regulations.

2. Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING, THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8 ARE THE ONLY WARRANTIES GIVEN BY THE API GUYS WITH RESPECT TO THE SERVICE, SOFTWARE, AND DOCUMENTATION, WHICH ARE OTHERWISE PROVIDED ON AN AS-IS, AS-AVAILABLE BASIS. THE API GUYS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALING BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE. THE API GUYS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. 

9. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO CONFIDENTIALITY VIOLATIONS, CUSTOMER’S OBLIGATION TO PAY ANY AMOUNTS OWED HEREUNDER, OR A PARTY’S LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO THE API GUYS BY CUSTOMER DURING THE MOST RECENT TWELVE (12) MONTHS WITH RESPECT TO THE PARTICULAR SERVICES OUT OF WHICH SUCH CLAIM ARISES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST OR ANTICIPATED REVENUE OR PROFITS, DIMINUTION OF VALUE OR LOSS OF GOODWILL, OR FOR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

10. GENERAL

1. Marketing Usage.  Customer hereby consents to The API Guys using Customer’s name and logo solely for the purpose of identifying Customer as a customer of The API Guys so long as Customer’s name does not appear with greater prominence than any other customer listed in like manner. Customer also agrees (a) to serve as a referenceable account for The API Guys with respect to other prospective customers upon The API Guys’s reasonable request, and (b) following successful implementation of the Service, to issue a mutually acceptable press release and participate in a case study regarding Customer’s use of the Service.  Except as described above, neither party shall use the other party’s name or logo in any promotional or advertising materials without the prior written approval of the other party.  

2. Commercial Computer Software.  If any Service or Documentation are acquired by or on behalf of an agency or instrumentality of the United States government, Customer acknowledges and agrees that such Service or Documentation are “commercial computer software” or “commercial computer software documentation” developed at private expense and that, absent a written agreement to the contrary, the government’s rights with respect to such Service or Documentation shall be as set forth in this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as amended and as applicable.

3. Force Majeure.  Notwithstanding anything in this Agreement to the contrary, no default, delay or failure to perform on the part of either party, excluding Customer’s payment obligations, shall be considered a breach of this Agreement if such default, delay or failure to perform is due to causes beyond such party’s reasonable control, including, but not limited to, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inaction of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, the infrastructure of the Internet, or default of a common carrier.

4. Choice of Law.  This Agreement and all claims related to it shall be construed and governed in all respects according to the laws of the State of Delaware, without regard to any conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

5. Export Laws.  Neither party shall commit any act or request the other party to commit any act which would violate the export control laws, rules or regulations of the United States or any other country.

6. Waiver.  No waiver or failure to exercise any option, right or privilege under the terms of this Agreement by either of the parties hereto on any occasion or occasions shall be construed to be a waiver of the same on any other occasion or of any other option, right or privilege.

7. Assignment.  Neither party may assign this Agreement without the other party’s prior written consent, except (a) to an affiliate, (b) in the event of a sale of all or substantially all of such party’s assets or stock, or (c) in the case of an assignment by The API Guys of monies due or becoming due.  In any such event, any assignee shall comply with all of the terms and conditions of this Agreement. 

8. Independent Contractors.  The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.

9. Entire Agreement.  This Agreement and all Order Forms contain the entire understanding and agreement between Customer and The API Guys and supersede all prior agreements or understandings, oral or written, relating to the subject matter hereof. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted or standard terms or conditions in any invoice or purchase order shall be of no effect. In the event of any conflict or inconsistency between an Order Form and this Agreement, the Order Form shall control.