IMPORTANT: READ THIS PERSON-CENTERED TECH LLC SOFTWARE AS A SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON, OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.
- “You” and “Your” refers to the individual or entity that has ordered software as a service from Person-Centered Tech LLC (“PCT”) or an authorized distributor by executing the Ordering Document that accompanies and incorporates this PCT software as a service agreement (collectively, the “Agreement”).
- The “Services” consist of system administration, system management, and system monitoring activities that PCT performs, namely, in deployment of the HIPAA Security Workbook software program, as well as any other Software that PCT develops in accordance with this Agreement.
- “Software” refers to the software products owned or distributed by PCT to which PCT grants you access as part of the Services, including any Software updates provided as part of the Services.
- “Users” shall mean those individuals authorized by you or on your behalf to use the Services, as defined in the Ordering Document.
- “Your Data” refers to the data provided by you that resides in your services environment.
- “Ordering Document” refers to the ordering and payment document signed by the parties that accompanies and incorporates this Agreement.
- Rights Granted
- Upon PCT’s acceptance of your order and for the duration of the Services Term defined in the Ordering Document, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of this Agreement. You may allow your Users to use the Services for this purpose and you are responsible for your Users’ compliance with this Agreement. The Services are provided as described in, and subject to, the Ordering Document.
- Ownership and Restrictions
- You retain all ownership and intellectual property rights in and to Your Data. You grant PCT the right to use Your Data, anonymized without reference to you or your agents, for marketing purposes and improvement of the Services. . PCT or its licensors retain all ownership and intellectual property rights to the Services. PCT retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.
- Third party technology that may be appropriate or necessary for use with some Software is specified in the Program Documentation or Ordering Document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by PCT and not under this Agreement.
- You may not:
(i) remove or modify any Software markings or any notice of PCT’s or its licensors’ proprietary rights;
(ii) make the Software or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the Services you have acquired);
(iii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to PCT;
(iv) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services or materials available, to any third party other than, as expressly permitted under the terms of this Agreement.
- The rights granted to you under this Agreement are also conditioned on the following:
(i) the rights of any user licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license, or, the Ordering Document has specified the purchase of multiple licenses);
(ii) except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
(iii) you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
- Warranties, Disclaimers and Exclusive Remedies
- PCT warrants that the Services will perform in all material respects in accordance with the Services policies referenced in the Ordering Document. If the Services provided to you for any given month during the Services term were not performed as warranted, you must provide written notice to PCT as specified in the Ordering Document no later than five business days after the last day of that particular month or within such other period stated in the Ordering Document. PCT DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT PCT WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT PCT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PCT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- FOR ANY BREACH OF THE ABOVE WARRANTIES, PCT WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO PCT, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND PCT’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THIS AGREEMENT.
- TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Trial Use of the Services
If specified in the Ordering Document, you may order certain services for trial, nonproduction purposes subject to the terms and conditions of this Agreement. Services acquired for trial purposes are provided “as is” and PCT does not offer any warranties for such services.
- If a third party makes a claim against either you or PCT (“Recipient” which may refer to you or PCT depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or PCT (“Provider” which may refer to you or PCT depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
(i) notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
(ii) gives the Provider sole control of the defense and any settlement negotiations; and
(iii) gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim
- If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects PCT’s ability to meet its obligations under the relevant order, then PCT may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the Service (e.g., a third party Web page accessed via a hyperlink). PCT will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by PCT. PCT will not indemnify you for infringement caused by your actions against any third party if the Services as delivered to you and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. PCT will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of this Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
- Support Services
Support services shall not be provided under this Agreement.
- End of Agreement
- Services provided under this Agreement shall be provided for the period defined in the Ordering Document unless earlier terminated in accordance with this Agreement. The term of the Services and any renewal years are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services shall end.
- If either you or PCT breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Ordering Document under which the breach occurred. If PCT ends the Ordering Document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. If PCT ends the Services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for Services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this Agreement, you may not use the Services ordered. You further agree that if you have used an PCT contract to pay for the fees due under an order and you are in default under that contract, you may not use the Services that are subject to such contract.
- In addition, PCT may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay PCT as required under this Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within Section B of this Agreement. PCT may terminate the services hereunder if any of the foregoing is not cured within 30 days after PCT’s initial notice thereof. Any suspension by PCT of the services under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement
- At your request, and for a period of up to 60 days after the termination of the applicable Ordering Document, PCT may permit you to access the services solely to the extent necessary for you to retrieve a file of Your Data then in the services environment. You agree and acknowledge that PCT has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 60 days following the termination of the Ordering Document.
- Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
- Fees and Taxes
- You agree to pay for all services ordered as set forth in the applicable Ordering Document. All fees due under this Agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that PCT must pay based on the services you ordered, except for taxes based on PCT’s income. You will reimburse PCT for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in an Ordering Document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
- You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the Ordering Document; however, the preceding does not relieve PCT of its obligation to deliver services that you have ordered per the terms of this Agreement.
- By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential Information shall be limited to the terms and pricing under this Agreement, Your Data residing in the services environment, and all information clearly identified as confidential at the time of disclosure. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
- We each agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement. PCT will protect the confidentiality of Your Data residing in the services environment in accordance with the PCT security practices specified in the services policies referenced in the Ordering Document. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.
- Entire Agreement
You agree that this Agreement (including the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. It is expressly agreed that the terms of this Agreement, including any PCT Ordering Document, shall supersede the terms in any purchase order or other non-PCT document and no terms included in any such purchase order or other non-PCT document shall apply to the services ordered. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the PCT Store by authorized representatives of you and of PCT.
- Limitation of Liability
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. PCT’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO PCT FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST PCT SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
- No Professional Advice
The information provided through the Service is neither professional advice, nor is it a substitute for professional advice where the facts and circumstances warrant. If you require legal advice or other professional assistance, you should always consult your own legal or other professional advisors and discuss the facts and circumstances that apply to your specific situation.
- PCT is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
- You shall obtain at your sole expense any rights and consents from third parties necessary for PCT and its subcontractors to perform the services under this Agreement
- This Agreement is governed by the substantive and procedural laws of Oregon and you and PCT agree to submit to the exclusive jurisdiction of, and venue in, the courts in Multnomah County in any dispute arising out of or relating to this Agreement.
- If you have a dispute with PCT or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Person-Centered Tech LLC, 924 NE 65TH Ave, Portland, OR 97213. PCT may give notice applicable to PCT’s software as a service customer base by means of a general notice on the PCT website for the services, and notices specific to you by electronic mail to your e-mail address on record in PCT’s account information or by written communication sent by first class mail or pre-paid post to your address on record in PCT’s account information.
- You may not assign this Agreement or give or transfer the services or an interest in them to another individual or entity without the express written consent of PCT.
- Except for actions for nonpayment or breach of PCT’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
- PCT may audit your use of the services. You agree to cooperate with PCT’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, PCT can end your services and/or this Agreement. You agree that PCT shall not be responsible for any of your costs incurred in cooperating with the audit.
- The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. You understand that PCT’s business partners, including any third party firms retained by you to provide computer consulting services, are independent of PCT and are not PCT’s agents. PCT is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an PCT subcontractor on an engagement ordered under this Agreement.
- Your Data
- You agree to provide any notices and obtain any consents related to your use of the services and PCT’s provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Data.
- Statistical Information
PCT may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your Confidential Information or include your company’s name. PCT retains all intellectual property rights in such information.