Service Terms and Conditions
1.1 Terms. These Service Terms and Conditions (as amended or supplemented, the “Service Terms”) govern the acquisition and use of the software services specified in each Sales Order (as amended or supplemented, the “Sales Order”) between Forian Inc. or one of our subsidiaries or affiliates, including Bio-Tech Medical Software, Inc. (d/b/a BioTrackTM) (collectively, “Forian”, “us”, “we” or “our”), and our customer specified therein (“Customer”, “you” or “your”). These Service Terms are incorporated into and made a part of each Sales Order, together referred to herein collectively as this “Agreement”. By accepting this Agreement, either by (i) clicking a box indicating your acceptance; (ii) executing the Sales Order that references and incorporates these Service Terms or (iii) accessing or using the Services (as defined in Section 1.2), you agree to the terms and conditions contained herein and acknowledge that this Agreement supersedes any prior or contemporaneous terms and conditions, including any purchase order you may provide, and that any such additional or different terms or conditions shall have no force or effect unless explicitly acknowledged by us in the Sales Order.
1.2 Services. These Service Terms apply to the following, as applicable, as specified in the Sales Order: (i) your Use (as defined in Section 2.1) of our owned or licensed software (the “Software”) in connection with the Software Services (as defined in Section 2.1); and (ii) your purchase of (1) installation, implementation, training and other professional services related to the initiation of the Software Services (the “Professional Services”); (2) maintenance and support services related to the Software Services (“Support Services”) and (3) hosting services related to the Software Services (“Hosting Services” and, collectively with the Software Services, Professional Services and Support Services, the “Services”), in each case as applicable as specified in the Sales Order.
1.3 Supplemental Service Terms. Certain of our Services may require additional terms and conditions, which may be set forth in your Sales Order and are incorporated into these Service Terms, to the extent applicable. Please review your Sales Order to confirm if any additional terms and conditions apply.
1.4 Changes. Any changes to the scope, specifications or other requirements associated with any Services, and any corresponding adjustments to Fees, schedules or other terms, will be set forth in an amended or subsequent Sales Order. We are not responsible for any change unless and until such change is expressly set forth in a Sales Order and mutually agreed in writing.
2. ACCESS AND USE
2.1 License; Subscription. Subject to all terms and conditions of this Agreement, including compliance with these Service Terms and payment of all applicable Fees (as defined in Section 5.1), we grant you a limited, non-exclusive, non-sublicensable, non-transferable (except as set forth below under Section 12) right during the Software Services Term (as defined in Section 4.1) to access and use (collectively, “Use”) the Software and its accompanying documentation as made available by us (the “Software Services”) only with respect to the location(s) operated by you and set forth in the Sales Order (the “Authorized Location(s)”) in accordance with (i) these Service Terms and (ii) any additional Use restrictions (including any limitations on the number of authorized employees or any third parties authorized to Use the Software Services, downloads, copies or installations or on the scope of authorized Use). Unless otherwise set forth in the Sales Order, the Software Services are purchased as location-based subscriptions, and each Authorized Location must have a valid subscription that cannot be shared with other locations or users. You understand and agree that the Software Services may only be Used by the Authorized Locations identified on the applicable Sales Order. Any reassignment of locations, additional locations or other changes to the amounts set forth in the Sales Order must be expressly approved by us and may require a new Sales Order. We will use commercially reasonable efforts to maintain availability of the Software Services, except for (i) scheduled downtime (of which we shall give advance electronic notice); (ii) service downtime or degradation due to a Force Majeure Event (as defined in Section 11); (iii) any other circumstances beyond our reasonable control, including your use of Third Party Materials (as defined in Section 3.8); (iv) Use of the Software Services other than in accordance with these Service Terms; or (v) any suspension or termination of your Use of the Services as contemplated by this Agreement. In the case of any Software Services provided by us through the installation of the object code version of the Software, the term “Use” shall include the right to install and run the Software at the Authorized Location(s). You will be responsible for maintaining the security of logins and passwords in accordance with industry standards and applicable law. Any breach of the terms and conditions of this Agreement by any Authorized Location or User (including any unauthorized access) shall constitute your breach. You shall notify us immediately if you learn of any unauthorized disclosure, access or use of any login or password assigned to you or your users.
2.2 Beta Services. During the Software Services Term, we may elect to make additional features or products (“Beta Services”) available to you at no charge, to which the following special terms and conditions apply: (i) you may use or decline to use any Beta Services; (ii) Beta Services may not be supported and may be changed or terminated at any time without notice; (iii) Beta Services may not be as reliable or available as the Services; (iv) Beta Services are not considered Services under this Agreement; however, all Customer restrictions, obligations and limitations that apply to Services shall also apply to Beta Services; (v) any Beta Services trial period will expire one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation; and (vi) notwithstanding anything to the contrary in this Agreement, Beta Services are provided “as-is” and no warranty or obligations will apply, nor will we have any liability for any harm or damage arising out of or in connection with a Beta Service. You agree that your Use of the Services is not contingent on the delivery or availability of any future functionality or features, including any comments made by us regarding future functionality or features.
3. PROPRIETARY RIGHTS; LICENSES; CONFIDENTIALITY
3.1 Ownership. You acknowledge that the Software and all specifications, documentation, systems, information, data, documents, materials, designs, plans, works, content, devices, methods, processes, equipment, hardware, software (including application program interfaces (“APIs”)) and other technologies that are provided or made available in connection with, or that otherwise comprise or relate to, the Software or Services, and all improvements, enhancements or modifications thereto or derivative works thereof (collectively, the “Forian Materials”), are the sole property of Forian or our licensors. As between us and you, ownership and title to (i) the Forian Materials; (ii) any software, applications, inventions or other technology or materials developed or delivered in connection with the Services; and (iii) all intellectual property rights related to any of the foregoing (as well as all intellectual property rights in the Services) shall remain with us. The Software is made available for authorized Use, not sold, to you, and you have no intellectual property rights therein, other than the limited rights expressly granted hereunder. Ownership and title to your data and any proprietary content submitted by you (i.e. other than Third Party Materials), together with related trademarks, trade names or trade dress owned by you (collectively, “Customer Materials”), shall remain with you. If you request certain customization to the Software, either to facilitate integration with your owned or licensed software or to provide customized functionality (“Customized Software”) and we agree to provide such Customized Software, then, as a condition to any development work commencing with respect thereto: (i) we and you shall enter into a Sales Order specifying the terms and conditions of development, licensing, subscription, sale, Use and related fees with respect to any such Customized Software; and (ii) unless explicitly stated in such Sales Order, such Customized Software shall constitute Forian Materials and ownership thereof shall remain with us. You acknowledge and agree that the Forian Materials contain valuable proprietary information and trade secrets of Forian, and are protected intellectual property rights of Forian.
3.2 Licenses. You grant us and our authorized subcontractors (i) a worldwide, perpetual (but revocable hereunder) royalty-free license to host, copy, transmit and display your data, and any Third Party Materials (as defined in Section 3.8) created by or for you using the Services or for use by you with the Services, each as is reasonably necessary for your Use as contemplated by this Agreement; and (ii) a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to use, copy, modify, prepare derivative works of and incorporate into the Services (and any modifications or derivatives thereof, any of our other products and services and any documentation or other materials related to the foregoing) any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation, functionality or performance of the Services. Subject to the limited licenses granted herein, neither us nor our authorized subcontractors acquire any right, title or interest from you or your licensors under this Agreement in or to any Customer Materials or Third Party Materials.
3.3 Our Use of Data. Notwithstanding anything to the contrary herein, we shall have the right to collect and analyze data and other information relating to the provision, Use and performance of the Services and related systems and technologies (including information concerning Customer Materials and data derived therefrom) (collectively, “Usage Data”) and may perpetually use such Usage Data for our legitimate business purposes, including to improve and enhance the Services and for other development and innovation, diagnostic and corrective purposes in connection with such Services and our other offerings; provided that, except as necessary (i) to provide the Services, (ii) to assist with the administration of Third-Party Materials or (iii) as required by law, unless you consent otherwise or initiate the sharing of such data yourself, (y) any external disclosure or use of Usage Data by us will be in an aggregated form that does not identify or otherwise readily permit the identification of you, any Users or other individual and (z) any Personal Data (as defined Section 3.9.1) shall only be used to provide the Services or as otherwise required to meet our obligations under these Service Terms.
3.4 Marketing. You acknowledge that we may use and display your name and logo on our website and in our marketing materials in connection with identifying you as a customer. Upon your written request, we will promptly remove any such references from our website and, to the extent commercially feasible, our marketing materials.
3.5 Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”), regardless of format or medium, including the Disclosing Party’s financial information, technical and non-technical data, services, products, processes, operations, reports, analyses, test results, technology, samples, specifications, protocols, performance standards, formulations, compounds, know-how, methodologies, trade secrets, trade practices, marketing plans and materials, strategies, forecasts, research, concepts, ideas, and names, addresses and any other characteristics or identifying information of the Disclosing Party’s existing or potential licensors, suppliers, customers or employees, the terms of this Agreement (including pricing terms) or any information derived from any of the foregoing; provided that such information is either (i) clearly designated as “Confidential” in writing (if communicated in writing) or at the time of disclosure (if disclosed orally or visually) or (ii) of the nature and type that it should reasonably be regarded as confidential. Your Confidential Information includes your data. Our Confidential Information includes the Services and the Forian Materials (including any benchmarking results or data). Your Confidential Information includes the Customer Materials. Confidential Information shall not include any information which (i) is or becomes available to the public other than as the consequence of a breach of this Agreement; (ii) is actually known to or in the possession of Recipient without any limitation on use or disclosure prior to receipt from the Disclosing Party; (iii) is rightfully received from a third party in possession of such information who is not under obligation to the Disclosing Party not to disclose the information; or (iv) is independently developed by Recipient without use of or reference to the Confidential Information. The burden of proving the applicability of these exceptions shall be on Recipient.
3.6 Non-Disclosure of Confidential Information. Recipient shall (i) hold in strict confidence and trust all Confidential Information, using the same degree of care that it uses to protect the confidentiality of its own confidential information of similar type, and in any event no less than a reasonable degree of care; and (ii) not disclose, sell, rent or otherwise provide or transfer, directly or indirectly, any Confidential Information to any individual or entity (“Person”) without the prior written consent of the Disclosing Party. Notwithstanding the preceding sentence to the contrary, Recipient may disclose Confidential Information to its or its affiliates’ employees, agents, contractors, legal counsel and accountants who need to know such information, only to the extent reasonably necessary, consistent with the obligations of the parties under this Agreement and who are bound by confidentiality obligations no less stringent than those set forth in this Agreement; provided that, with respect to agents or contractors, we consent to such access promptly following our receipt of written notice. Recipient shall use the Confidential Information only in connection with the intent of this Agreement and not for any other purpose whatsoever. Recipient shall require any of its representatives who obtain Confidential Information to comply with this Agreement and shall be responsible for any breach of this Agreement by such representatives.
3.7 Compelled Disclosure. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure, or pursuant to the listing rules of any stock exchange to which such party is subject, in each case if no suitable protective order or equivalent remedy is available; provided that, to the extent permitted, Recipient gives the Disclosing Party written notice of such court order, government order, legal requirement or listing rule requiring disclosure immediately upon knowledge thereof and allows the Disclosing Party a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law; and further provided that Recipient shall furnish only that portion of the Confidential Information which it is advised by a written opinion of counsel is legally required, and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
3.8 Third Party Materials. The Software Services may enable you to link to, transmit data to or otherwise access applications, websites, specifications, documentation and systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, equipment, hardware, software (including APIs) and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided by you or a third party (and are non-proprietary to us) and that interoperate with the Software Services (“Third Party Materials”). Except to the extent otherwise expressly set forth in the applicable Sales Order, we do not control and are not responsible for Third Party Materials and we may assess fees for the integration of Third Party Materials with the Software Services. You acknowledge that (i) the nature, type, quality and availability of Third Party Materials may change at any time; (ii) features of the Software Services that interoperate with Third Party Materials depend on the continuing availability of APIs for use with the Software Services; and (iii) that certain Software Services may incorporate third party advertising at no cost or obligation to you. We may update, change or modify the Software Services as a result of a change in, or unavailability of, Third Party Materials, including APIs. If any third party ceases to make its Third Party Materials, including APIs, available on reasonable terms for the Software Services, as determined by us in our sole discretion, we may cease providing access to the affected Third Party Materials without any liability to you. Any changes to Third Party Materials, including APIs (including their availability or unavailability), does not affect your obligations under this Agreement, and you will not be entitled to any refund, credit or other compensation due to any such changes (except as otherwise expressly agreed by the parties in writing). In addition, Third Party Materials may be subject to separate license agreements or terms directly between you and the third party licensor, including, with respect to our Cannalytics® solution, Looker Data Sciences, Inc., the current versions of which are available at the following URL: https://looker.com/trust-center/legal/customers/msa/msa-apr2019. You shall agree to, and take all actions necessary or required by such third party licensor in connection with, any such third party agreements or terms. Except as expressly stated otherwise in this Agreement, (i) we are not responsible for providing any Third Party Materials to you and (ii) licenses, warranties and support for Third Party Materials, if any, will be given by the relevant third party licensors in their license agreements, and not by us. For Third Party Materials embedded in the Services, if any, we grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable sublicense to use such Third Party Materials, solely as embedded in the Services, solely to the extent necessary and for the purpose to properly Use the Services in accordance with this Agreement.
3.9 Data Processing and Transfer.
3.9.1 Data Processing. We and you acknowledge and understand that “personal data” (“Personal Data”) (as defined in any applicable data protection, data privacy and data security laws (collectively, the “Data Protection Laws”)) of “data subjects” (as defined in the Data Protection Laws) shall only be collected, used and/or disclosed pursuant to this Agreement in compliance with the Data Protection Laws. The categories of “personal data” processed by Forian will depend on the specific Services and may include: (i) transaction details, including, as applicable, name, date of birth, address, state-issued license number, payment information, purchasing history, email address and phone number from your customers through our Services, which may include patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”), and other Data Protection Laws (collectively, “HIPAA Data”) and (ii) information from your employees when they contact our customer service representatives or otherwise interact with us, including through www.biotrack.com, www.cannalytics.io and www.forian.com or other websites or online services or portals sponsored by us. The categories of data subjects are: your personnel and customers communicating or transacting with you through our Services. For clarity, any de-identified Personal Data is de-identified in accordance with HIPAA and pseudonymized in accordance with the General Data Protection Regulation 2016/679 (“GDPR”), to the extent applicable.
4. TERM AND TERMINATION
4.1 Term. The term of the Software Services shall be as set forth in the applicable Sales Order and shall continue while any subscriptions are in effect, subject to earlier termination in accordance with this section (as extended by any renewal, the “Software Services Term”). Support Services are included in subscription-based Software Services. The term for which we will provide Support Services for any non-subscription based Software Services shall be as specified in the Sales Order, subject to earlier termination in accordance with this section (as extended by any renewal, the “Support Services Term”). The term for which we will provide Hosting Services shall be as specified in the Sales Order, unless terminated sooner in accordance with this section (as extended by any renewal, “Hosting Services Term”).
4.2 Termination. In addition to any other remedies either party may have, either party may terminate this Agreement (i) upon thirty (30) days’ (or, with respect to your failure to pay any Fees, five (5) days’) prior written notice if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured at the expiration of such period; or (ii) immediately if the other party (w) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (x) 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 (which proceeding, if involuntary, is not dismissed within thirty (30) days); (y) makes or seeks to make a general assignment for the benefit of its creditors; or (z) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take change of or sell any material portion of its property or business; (iii) notwithstanding clause (i) above, immediately if the other party’s breach directly relates to any of Section 3 (Proprietary Rights; Licenses; Confidentiality) or Section 7.1 (Restrictions); and (iv) in accordance with Section 11 (Force Majeure) upon a qualified Force Majeure Event (as defined in Section 11).
4.3 Effect of Termination. In the event of any expiration or termination of the Software Services Term or the Support Services Term (for any non-subscription Software Services), effective as of such expiration or termination: (i) you shall immediately cease Use of any Forian Materials and return or destroy (and certify such destruction of) all Forian Confidential Information and any installed Software, if applicable, including removal of such installed Software from all computerized data storage devices or components (including any hard-drive or database); (ii) all access to the Software Services, including any portal, reporting or other functionality, will be disabled; and (iii) our obligations set forth in Section 6 shall immediately cease to apply (except for any obligations therein to the extent expressly subject to a different time period) and you shall no longer be able to make, receive or access releases, additions or updates to any non-subscription Software Services. In the event of any expiration or termination of the Hosting Services Term, as applicable, effective as of such expiration or termination, (i) our license to host shall terminate and our obligations with respect to Hosting Services shall immediately cease and (ii) we shall make a single object code version of any installed Software, as applicable, available to you at all times during the Software Services Term (with releases, additions or updates provided at all times during the Support Services Term). Upon your written request made within thirty (30) days after the effective date of expiration or termination of this Agreement, we will make your data available for export or download in the commercially reasonable manner specified by us; provided, however, that after such thirty (30) day period, we will have no obligation to maintain or provide any of your data, and we will thereafter, except as otherwise expressly set forth in the applicable Sales Order, delete or destroy all copies of your data in our systems or otherwise in our possession or control, except for data (1) contained in an archived computer system back-up in accordance with security and/or disaster recovery procedures and applicable law; (2) to the fullest extent permitted under applicable law, contained in latent data, including deleted files and other non-logical data types such as memory dumps, swap files, temporary files, printer spool files and metadata that are not generally retrievable or accessible without the use of specialized tools and techniques; (3) to the fullest extent permitted under applicable law, included in materials prepared for regulatory compliance, archival or record retention purposes; or (4) for which destruction is legally prohibited. For the avoidance of doubt, nothing in this Section 4.3 shall be read to imply any obligation of us to maintain data in compliance with your record-keeping obligations under applicable law.
4.4 Fees Upon Termination. All Fees are non-cancellable and all amounts paid are non-refundable; provided, however, that if this Agreement is terminated by you in accordance with Section 4.2, we will refund to you any prepaid Fees under the Sales Order on a pro-rated basis covering the remainder of the Sales Order after the effective date of termination. If this Agreement is terminated by us in accordance with Section 4.2, you will pay to us any unpaid Fees covering the remainder of all Sales Orders. In the event of any expiration or termination of the Support Term (other than by you in accordance with Section 4.2) or you otherwise allow the Support Term to lapse, we may require you to make payments for all lapsed periods as a condition of resuming Support Services. In no event will termination or expiration relieve you of your obligation to pay any Fees payable to us for periods prior to the effective date of termination or expiration. Any services provided by or on behalf of us in connection with the expiration or termination of this Agreement that are not included in the Software Services, Support Services or Hosting Services, as applicable, including the export or download of Customer’s data (or any services provided in connection therewith), shall be pursuant to a Sales Order at then-current rates for such Services.
4.5 Suspension. In addition to any other remedies we may have, in lieu of termination, we may elect to immediately suspend your, or any Authorized Location’s, Use of the Services in the event and for the duration of our belief in good faith after reasonable inquiry that (i) you breached any of Section 2 (Use), Section 3 (Proprietary Rights; Licenses; Confidentiality), Section 5 (Fees), Section 7.1 (Restrictions) or Section 7.2 (Responsibilities); (ii) you are engaged in fraudulent, infringing or unlawful activities; or (iii) any Use of the Services or Services by or on behalf of you is reasonably likely to lead to any injury, property damage, violation of law or third party agreements or terms or any liability on the part of us or any of our affiliates, licensors or contractors. Any suspension under this Section 4.5 shall not relieve you of your obligation to pay Fees or to comply with any other restrictions or obligations under this Agreement.
4.6 Surviving Provisions. All sections of this Agreement which by their nature should survive termination will survive termination, including provisions regarding accrued rights to payment, appropriation of funds for Fees, ownership, confidentiality obligations, warranty disclaimers, and limitations of liability.
5.1 Fees. As a condition of your receipt of the Services hereunder, you shall pay to us the fees and other amounts set forth in the Sales Order (“Fees”) in the manner specified in the Sales Order. Subject to Section 4.4 (Fees Upon Termination), all Fees are non-cancellable and all amounts paid are non-refundable. If your use of the Services requires the payment of additional Fees (per the terms of this Agreement), including adding any Authorized Location, you will be invoiced for such additional usage and you shall pay the additional Fees in the manner provided therein. We reserve the right to change the Fees and to institute new charges and Fees at the end of the initial Software Services Term or, as applicable, the initial Support Services Term or Hosting Services Term or then-current renewal term, as applicable, upon thirty (30) days prior written notice to you (which may be sent by email); provided, however, that any Fees during a Trial Period (as defined in Section 13.6) shall increase to the standard Fees upon expiration of the Trial Period without notice. If you believe that we have billed you incorrectly, you must contact us no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be made in accordance with the notice provisions of Section 13.9. Except as set forth in the applicable Sales Order, all payments shall be received by us within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum rate permitted by law, whichever is lower, plus all costs and expenses incurred in connection with collection of unpaid amounts. You are responsible for providing complete and accurate billing and contact information to us and promptly notifying us of any changes to such information.
5.2 Taxes. You are responsible for the payment of all applicable sales, value-added, use, ad valorem, excise, importation/exportation or other taxes, duties, fees, tariffs, levies or other governmental charges payable in connection with the Services other than taxes based on our net income. If you provide us with satisfactory evidence of a tax exemption, we will not bill you for taxes to which the exemption applies.
6. OUR SUPPORT
A copy of our Support Services and your related responsibilities for the Software Services set forth in the applicable Sales Order have been provided with the Sales Order and are incorporated herein (“Support Services Terms and Conditions”). Additional terms or conditions with respect to Support Services specific to certain Software, equipment or hardware provided by us will be set forth in the applicable Sales Order.
7. YOUR RESTRICTIONS AND RESPONSIBILITIES
Our support and other obligations under this Agreement are further conditioned on your performance of your obligations and responsibilities hereunder, including those set forth below.
7.1 Restrictions. You shall not, and shall not permit any other Person to, access or use the Services except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, nor permit any other Person to, do any of the following in connection with the Services (or any portion or component thereof or documentation or other materials associated therewith), except as this Agreement or our applicable documentation expressly authorizes: (i) except to the extent specifically mandated by applicable law, copy, download, modify or create derivative works or improvements of the Services or Forian Materials; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Forian Materials (or any logins, passwords or other access credentials) to any Person, including on or in connection with the internet or any time-sharing, service bureau, software/platform as a service, cloud or other technology or service; (iii) except to the extent specifically mandated by applicable law, reverse engineer, disassemble, decompile, decode, or adapt the Services or Forian Materials or otherwise attempt (x) to derive or gain access to the source code thereof, (y) to re-identify methodologies or processes used therein, or (z) to extract any ideas, algorithms or procedures therefrom, in each case in whole or in part; (iv) bypass or breach any security device or protection used by or in connection with the Services or Use the Software or Forian Materials other than through the proper use of your then-valid access credentials via expressly authorized connections; (v) input, upload, transmit or otherwise provide to or through the Forian Materials or the Services (or any related systems, software, hardware, data, materials or services (collectively, “Related Applications”)) any information or materials that are unlawful or injurious or any virus, worm, malware or other malicious computer code designed to disrupt, disable or harm the Forian Materials or the Services (or any Related Applications); (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Forian Materials or the Services (or any Related Applications) or our provision of any products or services to any third party, in whole or in part; (vii) remove, delete, alter or obscure any trademarks, specifications, documentation, end user license agreement, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices in connection with the Forian Materials; (viii) Use the Forian Materials or the Services (or any Related Applications) in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law or that is obscene, defamatory, harassing, high-risk (i.e. where failure could lead to death or serious bodily injury or physical or environmental damage), unsolicited, misleading, harmful or otherwise inappropriate or unauthorized; (ix) Use, modify, integrate or distribute the Forian Materials or the Services (or any Related Applications) in any manner that does or is reasonably likely to subject the foregoing to any open source license terms; or (x) Use the Forian Materials or the Services (or any Related Applications) for purposes of competitive or benchmarking analysis of the Forian Materials or the Services, the development, provision or use of a competing software service or product, or for any other purpose or in any other manner that is to our detriment or commercial disadvantage or that is not expressly authorized under this Agreement.
7.2 Responsibilities. In addition to any responsibilities set forth in our Support Services Terms and Conditions attached hereto and with respect to any Third Party Materials, you shall (i) Use the Software Services (together with any associated content) in compliance with your published policies then in effect and all applicable laws and regulations; (ii) provide and maintain, at your expense, a physical, electrical, operational and communications environment that complies with any applicable specifications needed to connect to, access or otherwise Use the Software Services (including hardware, modems, servers, software, operating systems, networking, broadband capacity, supported web browsers, web servers and similar equipment, site, storage, electrical, operational, configuration, security and installation requirements compliant with our specifications made available to you; (iii) provide and maintain, at your expense, the security of any equipment, accounts, passwords, credentials and files and for all access and Use of the Software Services; (iv) maintain an agreement for Support Services continuously in force in the event of any non-subscription Software Services; (v) with respect to Customer Materials (including Personal Data), be responsible for (1) the accuracy, quality and legality of all Customer Materials, (2) the means by which you collect, acquire, record, store, use, process, transfer or otherwise provide it (including obtaining any necessary consents under Data Protection Laws and the regular monitoring and verification of the accuracy of Customer Materials’ input and output and the accuracy and completeness (and reporting) of Customer Materials (including tax data) entered into the Software Services and the conformance of such data with appropriate file formats as reasonably required by us), (3) making commercially reasonable efforts to prevent unauthorized Use of Customer Materials or the Software Services, including the maintenance of appropriate physical, administrative and technical safeguards to protect the Customer Materials and issuance of appropriate instructions and training to all employees with access to Personal Data with respect to your obligations under this Agreement and applicable law and (4) if applicable, maintaining back-up systems for all Software and Customer Materials processed through such Software Services; (vi) make commercially reasonable efforts to identify and resolve identified problems prior to calling our support personnel; (vii) make commercially reasonable efforts to make the appropriate personnel available to attend initial implementation and training sessions and provide trained personnel familiar with the Software Services to assist our support personnel during support calls; (viii) adhere to the support schedule specified under our Support Services; (ix) promptly coordinate scheduled dates with us, as applicable, for installation of any installed Software upgrades, as applicable; (x) obtain and maintain any licenses, registrations and authorizations that may be required for the import, installation, maintenance or other use of the Software Services under the laws and regulations applicable in the jurisdiction where the installed Software is located, as applicable; (xi) designate a qualified individual responsible for coordination and facilitation of the Software Services’ configurations, updates, changes and maintenance; (xii) assume sole responsibility for responding to and determining the validity of all requests for the release of any records (including the records of any of your citizens) in our control or possession (subject to Section 3.7, we will not release any such records without your prior written consent); (xiii) assume sole responsibility for providing all support services to your customers and shall not refer any customer to us directly for support requests, but may communicate such requests to us together with contact information for the requesting customer and additional fees for such citizen support may be applied in our discretion at our then-current rates. You further agree that we may, and authorize us to, interact remotely with our Software in order to configure, test, troubleshoot, update, analyze, use, or modify the Software or the environment in which it operates or to provide Support Services.
7.3 Acknowledgement of Hosting Provider. You acknowledge and agree that except as set forth in the Sales Order, the storage of Customer Materials in connection with our Software Services and Hosting Services is provided through Amazon Web Services (as the identify of such provider may be modified by us from time to time, the “Hosting Provider”) and is therefore governed by and subject to your compliance as an end user with Hosting Provider’s applicable terms and policies (collectively, the “Hosting Provider Terms”), the current versions of which are available at the following URL: http://aws.amazon.com/legal/. In addition, compliance certifications of Hosting Provider in connection with its environment are available at the following URL: https://aws.amazon.com/compliance/programs. In the event that the storage of Customer Materials is transitioned to a replacement Hosting Provider during the Software Services Term or Hosting Services Term, as applicable, we shall provide at least sixty (60) days’ prior written notice to you of such transition and use our commercially reasonable efforts to avoid or mitigate any material interruption to the Services while transitioning to such replacement Hosting Provider.
7.4 Payment Processing. In the event that the Software Services will interoperate with Third Party Materials that permit payment processing, you acknowledge that (i) certain payment processor integrations may requires additional integration fees, (ii) all Account Data (as such term is defined by the Payment Card Industry (“PCI”) Data Security Standards “PCI DSS”) to be transferred during the integration of the Software Services with such Third Party Materials will occur only within specifically designated and mutually agreed fields (e.g., “Account Data”, “Account Number” or “Account Expiration”, or syntactical variants thereof) and in no other field; (iii) you are solely responsible for all payments owed to any payment processor and (iv) we are not responsible or liable for any payment processor acts or omissions. As between us and you, you shall be solely and exclusively responsible for ensuring that all transactions processed through the Software Services comply fully with the PCI DSS and with the “red flag” requirements of the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”). You assume liability for, and shall defend, indemnify, and hold harmless us and our employees, directors, shareholders and agents from and against, any claims, liabilities, losses, costs or expenses arising out of (a) your failure or alleged failure to comply with PCI DSS or FACTA requirements, (b) any claims, charges, fines, fees or penalties by any bank, credit card company or payment processor for (i) charge-backs related to any payment processed through integration with the Software Services or (ii) online payment processing fees related to online payments or (c) a security breach of the payment processing Third Party Materials resulting in a loss, alteration or unauthorized disclosure of or access to any Personal Data or other Confidential Information.
8. LIMITED WARRANTY AND DISCLAIMER
8.1 Limited Warranty and Disclaimer. We warrant that the Services will be performed in a professional and competent manner by appropriately qualified personnel and in substantial accordance with our applicable specifications and documentation at all times during the applicable term. We provide no direct warranty as to any equipment or hardware recommended by us, but will reasonably facilitate any communications between you and the third party manufacturer during the period of any warranty offered by such third party manufacturer. To the fullest extent permitted under applicable law, any warranty under this Agreement shall be void, and we shall have no responsibility or liability under this Agreement, in the event that performance of the Services has been affected by (i) accident, abuse, misuse or neglect; (ii) a delay of more than sixty (60) days in properly reporting to us, in writing, any relevant non-conformance; (iii) operation in or connection to any unsuitable, unauthorized, unsupported, incompatible or third party software, hardware, network, configuration, system or physical, electrical, or operating environment (including Third Party Materials); (iv) installation, implementation, repair, or modification of the Services by any Person other than us or our authorized subcontractors; (vi) your network or connectivity problems, including failure to maintain sufficient broadband capacity and supported browsers; or (vii) the performance of (or failure to perform by) third parties, and is expressly conditioned on your compliance with any applicable specifications, as made available to you, as they may be updated by us from time to time, including any hardware, operating system, network, configuration, security, installation or other requirements. HOWEVER, WE DO NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8.1, THE FORIAN MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND WE DISCLAIM ALL REPRESENTATIONS, CONDITIONS, GUARANTEES OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AVAILABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ALL THIRD PARTY MATERIALS MADE ACCESSIBLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ANY REPRESENTATION, CONDITION, GUARANTEE OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
8.2 Remedies. You assume sole responsibility for any Use of the Services that is inconsistent with the terms and conditions of this Agreement. Our entire liability and your exclusive remedy with respect to any breach of the above warranty shall be, at our option in our sole discretion, either (i) reperformance, substantial correction of nonconformities in or replacement of materially nonconforming Services at no charge to you or (ii) refund of Fees paid for materially nonconforming Services.
8.3 Non-Warranted Services. We will be entitled to reimbursement at our then-current standard rates and prices for any services performed or products or parts provided in connection with Services not under warranty, including circumstances where a warranty is void for any of the reasons set forth in this Section 8.
9. LIMITATION OF LIABILITY
9.1 No Consequential Damages. To the fullest extent permitted under applicable law, none of us nor any other Person who has contributed to the design, development, production, distribution, installation, implementation, support, or maintenance of the Services shall be liable for any (i) incidental, consequential, indirect or special damages; (ii) lost business or anticipated savings, lost profits, lost goodwill or diminution in value; or (iii) lost, damaged, corrupted or inaccurate data, whether foreseeable or not, arising out of or in connection with the Services or this Agreement, even if such party has been advised, knew or should have known of the possibility of such damages and regardless of the form of action, whether in contract, extra-contractual or in tort, including negligence and strict liability.
9.2 Liability Limitation. To the fullest extent permitted under applicable law, and regardless of the form of action, whether in contract, extra-contractual or in tort, including negligence and strict liability, our aggregate liability under this Agreement, regardless of the number of occurrences or claims, shall be limited to the Fees you have paid to us during the preceding twelve (12) months for the specific Services out of which the claim arises. No action arising under or in connection with this Agreement may be brought more than one (1) year after either party becomes or should reasonably have become aware of the occurrence of events giving rise to the cause of action.
10. INFRINGEMENT INDEMNIFICATION
10.1 Indemnification by Us. We shall defend and indemnify you from liability to third parties to the extent resulting from infringement by the Software of any U.S. patent or any U.S. copyright issued as of the commencement date of the Software Services Term or misappropriation of any trade secret; provided that (i) we are promptly notified of (in no event more than five (5) business days after) any and all threats, claims and proceedings related thereto; (ii) we are given reasonable assistance and the opportunity to assume sole control over defense and settlement; and (iii) you are not in material breach under this Agreement (including with respect to payment of Fees). We will not be responsible for any settlement that we do not approve in writing. The foregoing obligations do not apply (a) with respect to portions or components of the Software (1) not supplied by us or our authorized subcontractors, (2) made in whole or in part in accordance with specifications provided by you, (3) that are modified without our approval after the Software are delivered or made available by us, or (4) combined with other hardware, software, products, systems, environments, services, processes or other materials not specifically approved by us where the alleged infringement relates to such combination; (b) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (c) where the liability arises or results from your business methods or your use of the Software is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Software is held by a court of competent jurisdiction to be or are believed by us to be infringing, we may, at our option and expense, (x) replace or modify the Software to be non-infringing; provided that such modification or replacement contains substantially similar features and functionality; (y) obtain for you the right to continue using the Software; or (z) if neither of the foregoing is commercially practicable in our reasonable discretion, terminate in whole or in part this Agreement or the applicable Sales Order and provide you a refund of any prepaid, unused Fees for the affected Software.
10.2 Exclusive Remedy. This Section 10 states our entire liability and your exclusive remedy with respect to any infringement or misappropriation related to the Software of any intellectual property rights.
11. FORCE MAJEURE
You acknowledge that we may be interrupted, delayed, or prevented from completing performance of any or all of our obligations under this Agreement due to an occurrence outside of our reasonable control, including fire, flood, explosion, natural disaster or act of God, war, riot, terrorist act, action or inaction of government, strike, labor dispute, materials shortage, shortage of adequate power, internet or telecommunications or conduct of third parties (“Force Majeure Event”). We will use reasonable efforts to mitigate the effects of a Force Majeure Event, but shall not be liable or responsible to you, or be deemed to have defaulted under or breached this Agreement, as a result of a Force Majeure Event.
12. ASSIGNMENT AND TRANSFER
We may assign or transfer our rights, interests and obligations in this Agreement or the Services, in whole or in part, in our sole discretion. You may not assign or delegate any of your rights, interests or obligations in this Agreement without our prior written consent (which consent we may withhold in our sole discretion). Any merger, consolidation, acquisition of all or substantially all of your assets or change in control, whether by contract or through the ownership of voting securities, including the ownership of more than fifty percent (50%) of the voting equity, partnership, or similar interest, shall be deemed an assignment requiring our prior written consent.
13.1 Relationship. Each of us agrees that our legal relationship under this Agreement is as independent contractors. Nothing in this Agreement shall be deemed to create a joint venture, agency, partnership, or other relationship between us, and neither party shall have any power by virtue of this Agreement to enter into any contract or commitment on behalf of the other or to bind the other in any respect whatsoever.
13.2 Entire Agreement; Amendment. This Agreement, including these Service Terms and the applicable Sales Order, is the complete and exclusive agreement between us concerning the subject matter of this Agreement and supersedes any and all prior or contemporaneous Sales Orders, agreements, verbal or written, and may not be modified except in writing executed by each of us (or as otherwise expressly set forth in these Service Terms). From time to time, in our sole discretion, we may amend the terms of this Agreement. Such changes will become effective upon notice to you but will not apply retroactively. By continuing to Use our Services or any Services, you agree to be bound by such amended terms of this Agreement. This Agreement shall take precedence over any additional or different terms and conditions you may provide, including any general terms of purchase, to which notice of objection is hereby given. In the event of any conflicts or inconsistencies, the following order of precedence shall apply, but only with respect to the specific subject matter of each: (i) the BAA, as applicable; then (ii) the Sales Order then (iii) the Service Terms (for the avoidance of doubt, where a Sales Order includes additional and more specific terms and conditions with respect to a concept addressed generally in these Service Terms or does not address a concept addressed herein, no conflict shall be deemed to exist).
13.3 Authority. Each of us acknowledges that (i) it has read and understands, and has had an opportunity to provide its comments to, the terms and conditions set forth in this Agreement and intends to be legally bound hereby; (ii) the representatives accepting or executing the Sales Order incorporating these Service Terms are authorized representatives; and (iii) the execution, delivery and performance of this Agreement will not result in any breach of or default under any provision of any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation to which it is a party or by which it is bound or which applies to its obligations hereunder. If you are a governmental entity or agency, you further represent and warrant to us that (y) this Agreement has been approved by your governing body and is a binding obligation and (z) all funds necessary to pay the Fees required hereunder are appropriated and/or arrangements have been made with a third party financing source.
13.4 Compliance with Applicable Laws. Each of us shall comply with any law or regulation applicable, in the case of us, to the delivery or provision of the Services with respect to our business operations and, in the case of you, to the receipt and Use of the Services (including with respect to applicable taxation and privacy laws); provided, however, that with respect to the Services, nothing in this sentence shall be read to expand or affect the warranties and limitations set forth in Section 8. Any legal or regulatory compliance obligations shall remain your sole responsibility, and nothing herein is intended to shift such burden from you to us. For the avoidance of doubt, the Services are not intended to serve as a substitute for, or method of, compliance with, and is not designed to comply with, any legal or compliance obligations to which you may be subject (including with respect to accessibility or employee recordkeeping), and under no circumstances shall we have any liability to you arising from your non-compliance with such obligations.
13.5 Monitoring. We may monitor and evaluate your Use of the Services at our expense. You agree (i) to cooperate with our evaluation and to provide reasonable assistance and access to relevant information, which audit shall not unreasonably interfere with your normal business operations and (ii) that we shall not be responsible for any of your costs incurred in cooperating with this Section 13.5. You agree to pay within thirty (30) days of written notification any Fees applicable to your Use of the Services in excess of your rights. If you fail to remit payment, we may terminate the Services.
13.6 Trial Period. If specified in the Sales Order, you may subscribe for the Services for nonproduction, trial and evaluation purposes for a limited period (“Trial Period”), to which the following special terms and conditions apply: (i) the Trial Period shall be as set forth in the Sales Order, but may be terminated by us at any time in our sole discretion; (ii) no fees will apply, except for any Trial Period Fee specified in the Sales Order (which shall be applied against Fees in connection with Implementation Services to the extent applicable in our reasonable discretion); (iii) the Services are provided “as-is” and no warranty or obligations will apply, nor will we have any liability for any harm or damage arising out of or in connection with the use of the Services during the Trial Period; (iv) you may terminate this Agreement and all of your rights hereunder by providing us written notice thereof in accordance with Section 13.9 no less than ten (10) business days prior to the end of the Trial Period and, absent such notice, these Service Terms shall continue in effect for the services period set forth in the Sales Order (subject to earlier termination as provided in this Agreement).
13.7 Waiver; Severability. The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other party of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or a party’s right thereafter to enforce provisions in accordance with the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent.
13.8 Governing Law; Arbitration. This Agreement shall be construed and governed in accordance with the laws of the United States and the State of Delaware, without giving effect to: (i) the principles of conflicts of law and that body of law applicable to the choice of law; and/or (ii) the United Nations Convention on Contracts for the International Sale of Goods, and/or its implementing and/or successor legislation and/or its regulations. Any dispute arising under these Service Terms or this Agreement shall be submitted exclusively to binding arbitration in the State of Delaware in accordance with the rules of the American Arbitration Association, and each party consents to such exclusive forum; provided that nothing herein shall prevent either party from seeking a preliminary injunction or other equitable relief in a judicial proceeding to prevent irreparable harm pending arbitration. EACH PARTY HEREBY IRREVOCABLY (y) CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF THE SPECIFIED FORUMS, AND VENUE THEREIN AND (z) VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BETWEEN THEM BASED DIRECTLY OR INDIRECTLY ON THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY RELATED TO THIS AGREEMENT.
13.9 Notice. All notices required under this Agreement shall be given and made in writing and shall be delivered to the respective addresses identified in the Sales Order and deemed received (i) when received, if hand delivered or (ii) the day after it is sent, if delivered by an internationally-recognized common carrier’s overnight delivery service providing proof of delivery. Any notices sent to us shall be sent to our headquarters’ address indicated on our website (www.forian.com), Attention: Chief Executive Officer, with a required confirmatory email (which shall not constitute notice) to email@example.com under the subject line “Legal Notice”.
13.10 Construction. For purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. Unless the context otherwise requires, references in this Agreement: (i) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Sales Order and the schedules and exhibits attached hereto are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
13.11 Counterparts and Electronic Signatures. Each of us agrees that the Sales Order and other documents memorializing agreements between us may be executed and/or delivered by electronic means, including electronic signatures, images of signatures or copies of original signatures or documents and may be delivered by electronic mail, facsimile transmission or other electronic or non-electronic means in any number of counterparts, each of which is deemed to be an original and all of which taken together constitute one agreement. All documents executed and/or delivered by electronic means shall have the same force and effect as an original, signed document and the party receiving a document signed and/or delivered by electronic means may rely on and use such electronic document to the same scope and extent as if it were the original, hard copy document duly executed by the other party.
13.12 Equitable Relief. You acknowledge that any breach of Section 2 (Access and Use), Section 3 (Proprietary Rights; Licenses; Confidentiality) or Section 7.1 (Restrictions) may irreparably harm us, that the damages suffered by us as a result of such breach will be difficult to ascertain, and that we may not have an adequate remedy at law for such breach. You agree and consent that in the event of such breach, we shall be entitled, without posting bond, in addition to all other rights and remedies to which we may be entitled, to have a decree of specific performance or an injunction issued requiring any such violation to be cured and enjoining all Persons involved from continuing the violation. You acknowledge and agree that the restrictions in this Section 13.12 are reasonable and necessary to protect our legitimate business interests.
[end of Service Terms]
Forian provides innovative software solutions, proprietary data, and predictive analytics to optimize the operational, clinical, and financial performance of our healthcare customers.
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