Safr Technologies, Inc.
31 Hudson Yards
11th Floor
New York, NY 10001
Master Service
Agreement
|
Effective Date: _ , 2021
|
Initial Term: 3 months,
thereafter monthly
|
This
Master Services Agreement is entered by Safr Technoligies, Inc. a Delaware
corporation (“COMPANY”) and ____________ (“CUSTOMER”) as of the Effective Date indicated above.
This Master Service
Agreement consists of this General Information Sheet, the General
Terms and Conditions attached hereto, and the Exhibits attached hereto (collectively the “Agreement”). Each Company and Customer is sometimes
referred to as a party; and both Company and Customer are sometimes referred to as
the parties.
Exhibit
A – Software Applications and Hosting Services: [Safr Care™] Exhibit
B – Set-Up, Deployment, and
Implementation Services
Exhibit
C – Support Services Exhibit D – Service
Fees
Exhibit E – User Warranties and Indemnities
Exhibit
F – Business Associates Agreement
This Agreement constitutes the entire agreement of the
parties and supersedes all agreements, whether oral or written, between the parties hereto, with respect
to the subject matter of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified
only in writing and signed by an authorized representative of each party. If there
is any conflict between any language in any Exhibit and the language in
the General Terms and Conditions to this Agreement, the language in the General
Terms and Conditions shall control.
Each of the undersigned represents and warrants that
he or she is duly authorized to sign this Agreement on behalf of the party he or she represents. Each party has read, understands and
agrees to the terms and conditions of this Agreement and all Exhibits
hereto, as of the effective date above.
|
Safr Technologies, Inc.
|
Customer
|
|
By (signature):
________________________
Name:
|
By (signature):
____________________
Name:
|
|
__________________
Title:
|
_______________
Title:
|
|
____________________________
Address:
|
_______________________
Address:
_____________________
|
GENERAL TERMS AND CONDITIONS
1.
Laws Governing Health Information.
Customer is subject
to laws governing confidentiality of health information
and is a covered entity under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") which creates
specific obligations upon the Customer with respect to protected health information. Because this Agreement provides for services involving
protected patient and/or health information, Customer acknowledges and agrees that this Agreement
may be terminated at Companies
convenience, if any regulations adopted by the Department of
Health and Human Services
("HHS") or if any other new Federal or state laws or regulations are enacted or promulgated
which require, in Company’s sole
discretion, changes to the Agreement, the Services to be provided by Safr Technoligies, Inc, or the Safr Care System. In the event of any such termination of this Agreement, Company intends to
adopt a new form of master service
agreement incorporating any new requirements,
and such requirements may result in changes in
the service fees and/or other terms and conditions. Customer
(assuming it had not been in breach of this Agreement) will be offered
the new form of Company master
service agreement.
2.
Provision of Services
2.1
Services. Subject to the terms and conditions of this Agreement, Company will provide
the Services described
in the Exhibits A, B and C.
2.2
Patients. Customer hereby warrants,
represents, certifies and agrees that each person for whom any protected health information is subject
to the Services, that Customer has
obtained the necessary form of consent and release
from each such people or organizations for his or her protected patient information to be subject
to the Services.
2.3
License. During the term of this Agreement and subject to its term and conditions, Company
hereby grants to Customer a nonexclusive and nontransferable license
for Customer and its Users to access
and use the computer system
used by Company to provide
the Services (the “Safr
Care System”) solely
about the provision of the Services.
3.
Use of the Services
3.1
Acceptable Use Policy: Customer shall comply with all applicable laws and regulations, including without limitation HIPAA, and further
agrees to adhere to Safr Technology’s Web Site Terms and Conditions and Privacy Statement. Such policy may be changed
from time to time, and the current
policy may be viewed at www.gosafr.com as it relates to Customer’s use
of the Services. Upon ten (10) days’
notice to Customer, Company, in its sole discretion, may modify its Web Site Terms and Conditions and
Privacy Statement, and Customer
shall be notified of such modifications via electronic mail. Customer shall
be responsible for notifying its Users of any
modifications to Users within five
(5) business days of Customer’s receipt of such modifications. However, Customer acknowledges and agrees that in no event shall Company’s acceptable use policy be deemed to modify, lessen or otherwise change federal
or state laws or regulations applicable to protected
patient information.
3.2
Suspension or Termination of Services. If Company becomes aware of or suspects any unlawful use of the Services
by a User, or any use in violation
of the Web Site Terms and Conditions and Privacy Statement, Company shall attempt
to notify Customer and provide
reasonable detail of such violation. However, Company reserves the right to immediately suspend or terminate the provision
of Services to any User or the Customer
in the event of any use which Company
determines in its sole discretion may be unlawful or in violation of the Web Site Terms and Conditions and Privacy Statement, or when reasonably necessary to protect Company’s interests. In the event a User uses the
Services in an unlawful manner or in violation of the Web Site Terms and Conditions and Privacy
Statement, and thereby causes
damage or added expense to Company, Customer shall be liable to Company for such damage or added expense. Company, at its sole discretion, may waive all or a portion of any such liability arising
from any violation of this Agreement
by Customer.
3.3
Additional Restrictions. Customer agrees that
Customer will not, and will not permit any third party, to: (i) use the Safr Care System or the Services
other than as expressly permitted
under this Agreement and subject to its terms
and conditions; (ii) attempt to download or otherwise obtain a copy of any software on the Safr Care System unless specifically authorized in writing
by Company; (iii) decompile, disassemble,
or otherwise attempt to derive source code from any software on the Safr Care System.
3.4
Compliance with Laws. Each party
agrees to comply with all applicable laws, rules and regulations, including any Internet regulations or
policies and applicable export laws, in its performance under this Agreement.
3.5
Security and Privacy. Safr Care will maintain
(or in its sole discretion cause a third party to maintain) a protected and secured computer
environment as specifically described
in Exhibit A. - PART B (HOSTING AND SECURITY).
Safr Care will also post its then current Web Site Terms and Conditions and Privacy Statement
as set forth in Section
3.1 above.
3.6
Modifications. Company reserves the right to modify the features and functionality of the Safr Care
System from time to time, provided that Company will not modify the Safr Care
System in a manner that would have a significant adverse effect on Users’ use
of or ability to use the Services,
without providing at least thirty (30) days prior notice to Customer of any such modification.
4.
Ownership and Additional Licenses.
4.1
Proprietary Rights. Company shall retain all proprietary
rights in and to the Services and Safr Care System. All software, source and object code,
specifications, designs, processes, techniques, concepts, improvements, discoveries, and inventions (whether patentable or not) made or developed in connection with the Services
shall be the sole and exclusive property
of Company. As between Customer
and Company, Customer shall have obtained all
consents from Users allowing Safr
Care to create, store, distribute and transmit such User Information in performing under,
or as otherwise expressly permitted by, this Agreement.
5.
Payment
5.1
Fees. Exhibit D sets forth the fees for the Services.
5.2
General Payment
Terms. All amounts payable under this Agreement shall be made
in U.S. dollars. Customer shall be
responsible to pay any sales, use, excise, property or any other taxes, duties or governmental fees asso-
ciated with
the provision of Services or of Customer’s or
Users’ access to or use of the Safr Care System. All payments are due ten days after invoice. Company
may charge an interest penalty
of 1.5% per month, or, if less, the
maximum amount allowed by applicable law, for payments made by Customer after the due date. Payments due from Customer are not
subject to any set-off claims.
6.
Disclaimer of Warranties.
6.1
No Warranties. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED
IN AN EXHIBIT HERETO, THE SERVICES AND SOFTWARE APPLICATIONS ARE PROVIDED, AND THE SAFR CARE
SYSTEM IS MADE AVAILABLE, BY COMPANY TO CUSTOMER AND USERS “AS IS.” COMPANY MAKES NO WARRANTY OF ANY KIND,
WHETHER EXPRESS OR IMPLIED,
REGARDING THE SERVICES
OR THE COMPANY SYSTEM AND SPECIFICALLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE COMPANY
WARRANTS, FOR THE CUSTOMER'S BENEFIT
ALONE, THAT THE INTERNET-BASED APPLICATION THAT THE COMPANY
MAKES AVAILABLE TO CUSTOMER VIA THE INTERNET
FOR USE WITH THE SERVICES (THE "SAAS
APPLICATION") CONFORMS IN ALL MATERIAL
RESPECTS TO THE SPECIFICATIONS FOR THE CURRENT VERSION
OF THE SAFR CARE SYSTEM. THE COMPANY
HAS NO CONTROL OVER INTERNET
PERFORMANCE OR ACCESS, THE GLOBAL POSITIONING SYSTEM (GPS) SATELLITE
NETWORK AND THE WIRELESS DATA NETWORKS THAT THE CUSTOMER CHOOSES
TO UTILIZE AND THEREFORE DISCLAIMS
ALL PERFORMANCE WARRANTEES RELATED TO THESE SERVICES.
UNDER SOME TRANSIENT CONDITIONS (E.G., THE MOBILE ASSETS PASS UNDER BRIDGES,
THROUGH TUNNELS, ETC.) ERRONEOUS DATA, SUCH AS SPEED,
LOCATION, DIRECTION OR OPERATIONAL STATUS,
MAY BE TRANSMITTED.
6.2
Internet Usage. Except as otherwise expressly
provided in this Agreement and Exhibits hereto, Company makes no warranties regarding the quality, reliability,
timeliness or security of the Services or the Safr Care System or that the Services, the Software Applications or the Safr Care System will
be uninterrupted or error free. Company assumes no responsibility or liability for the deletion or failure to
store, or to store properly, any
electronic data other than as required under law. Customer and Users assume the entire risk in
downloading or otherwise accessing
any data, files or other materials obtained from third parties as part of the Services or by means of the Safr
Care System.
6.3
Customer’s Responsibilities. Customer shall be solely responsible for any warranties made by Customers to any third parties with
respect to the Services or the Safr
Care System.
7.
Limitation of Liability.
IT IS UNDERSTOOD AND AGREED THAT THE
COMPANY AND THE THIRD-PARTY PROVIDERS ARE NOT
INSURERS AND THAT THE AMOUNTS
PAID TO COMPANY HEREUNDER ARE FOR THE SAAS SERVICE
PROVIDED BY THE COMPANY AND NOT FOR THE VALUE OF ANY PROPERTY, LOSS OR INJURY. IN THE EVENT OF ANY LOSS OR INJURY
TO ANY PERSON OR PROPERTY
BEING MONITORED
BY THE SAFR CARE SERVICE, CLIENT AGREES TO EXCLUSIVELY LOOK TO ITS
INSURER TO RECOVER
DAMAGES, AND CLIENT WAIVES ALL RIGHTS
OF SUBROGATION OR ANY OTHER RIGHT
OF RECOVERY AGAINST THE COMPANY THAT
ANY INSURER OR OTHER PERSON MAY HAVE
AS A RESULT OF PAYING ANY CLAIM FOR LOSS OR INJURY TO ANY OTHER PERSON.
IN ADDITION, CLIENT AGREES
THAT IT SHALL NOT BRING ANY CLAIM OR ACTION AGAINST ANY THIRD-PARTY PROVIDER ARISING FROM CLIENT’S USE OF THE
MOBILE MONITORING SERVICE.
FOR PURPOSES OF THIS AGREEMENT, “THIRD-PARTY PROVIDERS” MEANS ANY PERSON OR COMPANY THAT SUPPORTS OR
MAINTAINS THE SAFR CARE SERVICE, AND
INCLUDES, BUT IS NOT LIMITED TO
MAPPING DATA PROVIDERS AND DATABASE VENDORS. IN NO EVENT SHALL COMPANIES LIABILITY
ARISING OUT OF THIS AGREEMENT FOR ANY DAMAGES
FROM ANY CAUSE WHATSOEVER (INCLUDING LIABILITY
UNDER ANY WARRANTY OR REMEDY SET FORTH IN AN EXHIBIT),
REGARDLESS OF FORM OF ACTION,
WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, EXCEED
THE AMOUNT PAID OR TO BE PAID BY CUSTOMER
TO COMPANY HEREUNDER IN THE TWELVE
(12) MONTHS PRIOR
TO ANY CLAIM. IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT,
SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, EVEN IF THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. COMPANY
WILL NOT BE LIABLE FOR ANY ACTUAL
OR ALLEGED INFRINGEMENT BY ANY THIRD-PARTY PRODUCTS OR APPLICATIONS AVAILABLE THROUGH THE SERVICES. EXCEPT AS SPECIFICALLY SET FORTH HEREIN,
THE SAFR CARE SERVICE,
AND ALL SERVICES ARE PROVIDED
BY THE COMPANY AND THE THIRD-PARTY PROVIDERS
"AS-IS" AND "WHERE IS.” THE COMPANY
SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY,
ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE
AS TO THE MONITORING SERVICE, AND SERVICES PROVIDED
UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT THE SAFR CARE SERVICE
OR ITS OPERATION WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, ERROR-FREE OR
FREE OF VIRUSES OR OTHER HARMFUL
AGENTS. CLIENT ACKNOWLEDGES THAT THE SAFR CARE
SERVICE IS SUPPORTED
BY SATELLITE AND OVER LOCAL
EXCHANGE, INTER-EXCHANGE AND INTERNET BACKBONE
CARRIER LINES AND THROUGH ROUTERS,
SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY LOCAL AND LONG-DISTANCE CARRIERS,
UTILITIES, SATELLITE COMPANIES, COMMUNICATIONS COMPANIES, INTERNET
SERVICE PROVIDERS AND OTHER
THIRD PARTIES, ALL OF WHICH ARE BEYOND THE COMPANY’S’ CONTROL. CLIENT ACCEPTS ALL RISK ARISING OUT OF OR
RELATING TO THE DELAY, FAILURE,
INTERRUPTION, OR CORRUPTION OF THE MOBILE MONITORING SERVICE. UNDER NO CIRCUMSTANCES, INCLUDING
NEGLIGENCE, WILL COMPANY
OR ANYONE ELSE INVOLVED IN ADMINISTERING, MAINTAINING OR PROVIDING THE SAFR
CARE SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES
THAT RESULT FROM THE USE OF OR INABILITY TO USE THE MOBILE MONITORING SERVICE,
INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY,
DEATH, LOSS
OF REVENUE
OR LOST PROFITS, OR DAMAGES
THAT RESULT FROM MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, SERVER DOWNTIME, ERRORS,
DEFECTS, VIRUSES, DELAYS IN OPERATION
OR TRANSMISSION, FAILURE
OF PERFORMANCE, OF THE MOBILE MONITORING SERVICE, EVEN IF THE
COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.
Confidential Information.
8.1
Each party agrees to keep confidential and to use only for purposes of performing
under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which
is appropriately marked as confidential or which could
reasonably be considered of a proprietary or confidential nature (“Confidential Information”), and, except as otherwise permitted
by this Section, the terms of this Agreement and all negotiations relating thereto (but not the existence of this Agreement
generally). The obligation of confidentiality
shall not apply to: information which
is already public at the time of its disclosure or becomes public through
no unlawful act of the receiving party;
is known by the receiving party at the time of disclosure as evidenced
in writing; is rightfully obtained
from a third party who has
the right to disclose it; or which is required by a court to be disclosed following sufficient notice
to the disclosing party of any motion to obtain any court order to such
effect. The Disclosing Party's Confidential Information remains
the property of the disclosing party.
Upon any termination of this Agreement, the receiving
party will return the Disclosing Party's Confidential Information to the disclosing party, and all copies thereof, in
the possession or control of the
receiving party unless otherwise provided
in this Agreement. During the term of this Agreement, either party may use the other party’s name and may reference this Agreement in news releases,
articles, brochures, marketing
materials, advertisements and other publicity or promotions, subject to the other party’s prior written
approval, which approval
will not be unreasonably withheld,
conditioned or delayed;
provided that any such use is not in violation of any laws, including without limitation, laws
relating to unfair advertising, and
does not injure the goodwill of a party's trademarks and service marks.
9.
Indemnification.
9.1
Company Indemnity. Subject to Section 7, Company will defend,
indemnify and hold Customer harmless
from any and all
third-party claims, actions, suits
or demands ("Claims") made against
Customer to the extent that any such claim, action, suit or demand is based on a Claim that the Services infringe any valid United States patent, copyright, trade secret or other proprietary right of a third party. Company will pay those damages and costs finally awarded against Customer
in any monetary settlement of such suit or action which are specifically attributable to such Claim.
These obligations do not include
any Claims to the extent
they are based on use of the Services in violation
of this Agreement or in combination with any other software or hardware,
or any modification to the Services pursuant to Customer’s specifications. If any portion of the Services becomes, or in Company’s opinion
is likely to become, the subject of a claim of infringement, then Company may, at its option and expense,
(a) procure for Customer the right to continue using such Services; (b) replace or modify the Services so that they become non-infringing; or terminate the Services. The indemnity
obligations set forth in this Section 9.1 are contingent upon: (a) Customer
giving prompt written
notice to Company
of any such Claim(s); (b)
Company having sole
control of the
defense or settlement of the Claim;
and (c) at Company’s request and expense, Customer reasonably cooperating in the investigation and defense
of such Claim(s). The foregoing
states Company’s entire liability for
infringement claims.
9.2
Customer Indemnity. Customer shall defend, indemnify and hold Company
harmless from and against any and all third-party claims,
actions, proceedings, suits or demands
("Third Party Claims") arising from, in connection with,
or regarding any conduct, act or omission of the Customer or any of its Users which would constitute a
violation of any law, including
without limitation HIPAA, or of a term or condition of this Agreement. Customers'
obligations of defense, indemnity and hold harmless
shall include Company’s
costs, including its attorney fees,
resulting from any Third-Party Claim.
10.
Term and Termination.
10.1
Term. This Agreement will commence on the Effective Date and continue
for the period
set forth on the cover
page of this Agreement (“Initial
Term”). Thereafter, the Agreement
will automatically renew for additional one-month periods (“Monthly Term”) unless either party provides the other with written notice
of its intent not to renew at least 45 (forty-five) days prior to the end of the then current
term. The Initial Term and any Monthly
Term are collectively referred to as the “Term.”
10.2
Termination for Breach. Either party may terminate this Agreement by giving to the
other party written notice of such
termination upon the occurrence of any of the
following events: (i) the
other party fails to make payment hereunder
when due; (ii) the other party materially breaches or defaults in any of the material terms or conditions of this Agreement and fails to cure such breach or
default within 30 days of receipt of
written notice thereof, (iii) the other party
makes any assignment for the benefit of creditors, is insolvent or unable to pay its debts as they mature
in the ordinary course of business,
or (iv) any proceedings are instituted by or against the other party in bankruptcy or under any insolvency laws or for reorganization,
receivership or dissolution. In
addition, Company may terminate
this Agreement upon any notice or reasonable belief that Customer or any of its Users may be violating obligations imposed by HIPAA or other federal or state
laws regarding protected patient
information or privacy.
10.3
Effect
of Termination. Upon any termination
of this Agreement: (i) Customer will immediately destroy all copies of any Company Confidential Information in its possession or under its control; (ii) COMPANY will destroy any Customer
Confidential Information in its
possession or under its control (except if Company has any claims against the Customer or any
of its Users, then Company may elect
to hold and preserve any and all such materials for potential evidentiary use in any court proceeding or arbitration until
final resolution of any such claims). Upon termination of this Agreement, Customer
shall pay all unpaid fees due to
Company.
10.4 Survival. Sections
4.1, 6, 7, 8, 9, 10.4, and 11 and all
provisions of the Exhibits (except those requiring the continuation of Services or the payment for Services not yet performed) will survive any expiration or
termination of this Agreement.
11.
Miscellaneous
11.1
Notices. Notices under this Agreement must be in writing
and will be deemed given
when delivered
personally, by
facsimile (with confirmation of receipt), on the third business day after deposit with the U.S. Post Office of conventional mail (registered or certified,
postage prepaid with return receipt
requested), or by the date of delivery by Federal Express or Airborne Freight. Notices
will be addressed to the parties
at the addresses appearing in the introductory paragraph of this
Agreement, but each party may change the address by written notice in accordance with this paragraph.
11.2
Assignment. This Agreement will be binding upon and inure to the benefit
of the parties, their successors and permitted
assigns. Customer may not transfer,
sublicense or otherwise assign this Agreement
or any of its rights or obligations hereunder without
Company’s prior written
consent, and Company
may for any reason or no reason withhold its consent.
11.3
Force Majeure. Neither party shall be responsible for any delays,
errors, failures to perform, interruptions or disruptions in the Services
or the Safr Care System caused by or resulting from any act, omission or condition
beyond a party’s reasonable control, whether or not foreseeable or identified, including without
limitation acts of God, strikes, lockouts, riots, acts of war,
governmental regulations, fire, power failure, earthquakes, severe weather, floods
or other natural
disaster, third party's
hardware, software or communications equipment
or facilities, spam, denial of service
attacks or other third party breaches
of the Safr Care System or Services
(each a “Force Majeure Event”).
11.4
General Provisions. This Agreement will be governed by and construed in accordance with the laws of the State of New York exclusive of its conflict
of law principles. Nothing
contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship between Company and Customer. If any provision of this Agreement is held invalid,
illegal or unenforceable, such provision will be
reformed only to the extent necessary and in
such a manner to affect the original intention of the parties; all remaining provisions continue in full force and effect.
Any failure by either party to strictly
enforce any provision
of this Agreement will not operate as a waiver of that provision or any
subsequent default or breach of the
same or a different kind. In any
action or proceeding between the
parties, the prevailing party shall be entitled to recover its costs, including
attorney fees. All disputes between
the parties shall be resolved
in binding arbitration to be conducted in New York, New York, through
the offices and under the commercial
rules of the American Arbitration Association.
The prevailing party shall be awarded its reasonable attorney fees and costs, including arbitration costs.
EXHIBIT A
APPLICATION AND HOSTING SERVICES
SAFR CARE™ APPLICATION SERVICES
1.
Rights to Use
Software - Safr
Care™ is licensed monthly, subject to terms and conditions described in the Agreement, General Terms and Conditions
and Exhibits, for use through the Internet through the SAFR CARE System.
2.
Customer
Information - COMPANY
will rely upon technical information and requirements information that it
obtains from Customer for any Set-Up,
Deployment and Implementation Services. Customer
shall be responsible to COMPANY for the consequences of inaccuracies
of information that it provides to COMPANY.
3.
Publicity and Demonstrations - COMPANY may release Customer’s name, location and Products licensed, in a standard
news release and in COMPANY
publications that state an overall
or partial listing
of Customer names and products. Except as set forth
above, Customer shall be notified in writing of all public written releases by COMPANY
regarding Customer prior to release. At a time of day convenient for Customer
and with the permission of the Customer, COMPANY may take interested parties to the Customer
premises to demonstrate the system.
4.
Delays - Any breach or delay by Customer of
its obligations under this Agreement, other action by Customer, or force beyond COMPANY’s
control which causes
a delay in COMPANY’s performance of its obligations hereunder shall set back the schedules for COMPANY’s performance to the extent of the delay.
5.
Non-solicitation
- Customer agrees
that it will not, without COMPANY’s
consent, hire, either as employees or
as independent contractors, former COMPANY
employees or contractors who have worked on the set-up, deployment, implementation or support for the services
to be provided under this Agreement until 2 years after payment by Customer to COMPANY of the last amount due
under this Agreement. Customer and COMPANY
acknowledge that the loss or damage
to COMPANY resulting from a breach of this non-solicitation covenant is
difficult to ascertain at this time, however
that a sum equal to two times the amount that Customer
has paid or will pay to the former COMPANY employee or contractor is a reasonable estimate of the damages
resulting from loss of such employee or contractor to COMPANY. Accordingly, if Customer breaches this non-solicitation covenant, COMPANY shall be entitled, as liquidated damages,
to a payment equal to two times the amount
that Customer has paid or will pay to the former
COMPANY employee or contractor.
6.
Set-Up, Deployment and Implementation Services
and Support Services
– Set-Up,
Deployment and Implementation (including training) will be provided
as specified in Exhibit B, and Support
Services will be provided as specified in Exhibit C. Fees for all such Services are set forth
in Exhibit D. For trips with expenses
to be reimbursed by Customer, Customer
shall approve the expenses in advance. COMPANY's
personnel will submit only reasonable
expenses for reimbursement. Such
expenses shall include coach airfare, moderately priced hotels, meals,
and rental cars.
Customer’s in-house trainers, system administrators, and users will receive training
only as specified in Exhibit B, and in groups of no more than
approximately ten people, for half-days, in a suitable facility provided
by the Customer.
7.
Setup / Configuration - COMPANY shall provide Setup / Configuration Assistance to the Customer as described in Exhibit
B and for the fees
described in Exhibit D.
EXHIBIT B
SET UP, DEPLOYMENT, AND IMPLEMENTATION
SERVICES
1.
Set Up Services
Customer or Customer’s IT
contractor shall do all the actual workstation, local server, local network,
printer and remote access configuration, data entry and software configuration required to access the Application Services at the SAFR
CARE System. Set Up Services may
include advice, review and consultation on Customer’s local workstation configuration and SAFR CARE software
configuration. COMPANY’s role shall
be telephone, modem and advice, review, and consultation.
2.
Deployment and Implementation Services
Deployment and Implementation Services includes assistance in customizing the configurable options
in Safr Care, help
in designing your office work flow as it relates to Safr Care, and
hands-on end-user training. We
provide expert advice on the optimal
configuration to match your organization’s goals. Customer must participate throughout the duration of the set-up
to add the practice specific tables of data and assist as needed in the configuration.
3.
Other Services
If it is determined that a specific
activity is considered to be outside
the scope of the activities identified above or as Support
Services set forth on Exhibit C, COMPANY will recommend retaining
additional assistance for that specific activity. Any additional services to be provided
by COMPANY will be billed on a time and materials basis.
EXHIBIT C SUPPORT
SERVICES
1.
During the term
of this Agreement, COMPANY will provide to Customer technical support via
telephone, modem, or email for the covered
COMPANY software. On-site
visits are not covered as part of these Support Services and may incur an additional charge for services and travel
expenses. Technical support consists
of answering questions, trouble-shooting, and
working with the databases. It does not include training. If Customer
discovers a serious duplicable program error, COMPANY will, within a reasonable period of time, either provide a
work-around or a version of the Software, which does not contain the error.
2.
Smart Telephones
with Window Mobile 8, Apple IOS or Android and Safr Care Mobile App – App
available at Windows Marketplace, Apple App Store &
Google Store
PC Requirements for Microsoft Silverlight 4 and Windows
WPF and associated technologies are listed below.
Windows
Operating System: Windows Vista, Windows
7, Windows 8, Windows 8.1, and Windows
10 1 GHz Processor or faster
processor (or equivalent)
1G of RAM
and 1G of free hard drive space
High Speed Internet Connection - 15.0 Mbps Download Recommend and 1.5 Mbps upload speed with
a redundant provider as a back up
EXHIBIT E
USER WARRANTIES AND INDEMNITIES
The undersigned, agrees, warrants and represents that:
1.
I, representing customer
and all customer obligations, agree to not reproduce, copy or duplicate this
Safr Care proprietary software in any way for the course of thirty-six months
following the termination of this contract for any cause.
2.
I am aware that the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"), the
Americans with Disabilities Act, and other federal and state statutes
and laws, including without limitation state
privacy acts (collectively "Privacy Laws" herein) require that I comply with all such Privacy
Laws;
3.
I
shall be responsible for complying with all such Privacy Laws and do not rely in any way upon Safr
Technologies, Inc. (" COMPANY")
for education or training
on compliance.
4.
I shall comply with Company's
rules and policies in using any of the Services (including Safr Care™
application services provided
to Customer).
5.
I shall comply with Safr
Technologies, Inc., Web Site Terms and Conditions and Privacy Statement, the
form of which may change from time to time, but which will be posted at Safr’s Web Site at www.gosafr.com.
6.
I
shall notify COMPANY
immediately if I become aware or otherwise am informed of any violation by the Customer
or any of its Users
of the Privacy Laws or COMPANY’s
User Terms and Conditions.
7.
I shall defend, indemnify and hold
COMPANY harmless against all actions, claims, damages, proceedings, losses,
fines, costs (including attorney fees) arising from any
breach of the warranties described above.
8.
I understand that the laws of the State
of New York shall apply to the User Warranties and Indemnities. I agree that COMPANY shall be entitled
to obtain injunctive and related equitable relief against me to enforce
these warranties and indemnities in any court located in New York County,
New York, and that any such court shall have exclusive jurisdiction over me. I further agree that if I breach any of the above warranties and indemnities, COMPANY
will likely suffer
irreparable harm for which a monetary award
will be inadequate. I therefore agree that injunctive relief and related
equitable relief may be obtained
by COMPANY without the posting of any bond by COMPANY. I agree that nothing herein is to be
construed as any waiver, discharge or release by COMPANY of any other rights or remedies available to it in law or equity.
9.
I declare, under penalty of
perjury under the laws of the State of Massachusetts that I have read the
foregoing, am competent to understand this document, and enter it of my
own free will.
Name:
Dated:
Title:
Authorized User for Customer:
Exhibit F
HIPAA BUSINESS ASSOCIATE AGREEMENT
This
HIPAA Business Associate Agreement (“Agreement”) is made and entered
into effective as of the ____ day of _______, 2021 by and between Safr
Technologies, Inc. (“Covered Entity” or “SAFR CARE”) and _______________
(“Business Associate”, “you”, “your”). In order to comply with the Health
Insurance Portability and Accountability Act and the standards set forth at 45
CFR Parts 142, 160, 162 and 164 (collectively “HIPAA”) and the Health
Information Technology for Economic and Clinical Health Act (“HITECH”) to
safeguard Protected Health Information (“PHI”, or “ePHI”), Business Associate
agrees:
Pursuant to the terms of that certain “Underlying
Agreement”, SAFR CARE contracts with you to provide “Services”. In connection
with your provision of such Services, you create, receive, maintain, or
transmit PHI from SAFR CARE, the person who is the subject of PHI
(“Individual”) or applicable Governmental entity or Health Plan. As a result,
Business Associate must: (i) maintain the privacy/ confidentiality of all PHI;
and (ii) comply with the requirements of HIPAA and HITECH applicable to
Business Associates.
Specific
definitions:
(a) Business
Associate. “Business Associate” shall generally have the same meaning
as the term “business associate” at 45 CFR 160.103, and in reference to the
party to this agreement, shall mean _________________________.
(b) Covered
Entity. “Covered Entity” shall generally have the same meaning as the
term “covered entity” at 45 CFR 160.103, and in reference to the party to this
agreement, shall mean Safr Technologies, Inc.
(c) HIPAA
Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach
Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
1.
Your
Obligations.
You agree that you will maintain the privacy/confidentiality of all PHI
including electronic PHI as required by all applicable laws and regulations,
including, without limitation, the requirements of HIPAA and HITECH, including
the following obligations:
(A) Use and
Disclosure of PHI. You agree that you will not use or disclose PHI, other
than to perform the Services, as otherwise expressly permitted by the terms of
this Agreement or as required by law; provided, however, you may use and
disclose PHI to manage and administer your business, including the transaction
of business on behalf of SAFR CARE to another vendor. You agree to ensure that
all Subcontractors, agents, representatives or parties with whom you conduct SAFR
CARE business agree in writing to the same restrictions, conditions and
security measures that apply through this Agreement to you.
(B) Safeguards.
You represent and warrant that you will develop and implement appropriate
Administrative, Physical and Technical safeguards and security measures set
forth in 45 CFR 164.308, 164.310, 164.312, and 164.316 to prevent the use or
disclosure of electronic PHI for purposes other than as set forth in this
Agreement. You will provide SAFR CARE with such information concerning such
safeguards as SAFR CARE may from time to time request.
(C) Accounting
of Disclosures. In fulfillment of your obligations under 45 CFR 164.410,
you agree to maintain a record of all disclosures of PHI made for reasons other
than the provision of the Services and will provide the following information
regarding any such disclosure to SAFR CARE, or to the Individual whose PHI was
disclosed, upon our request as necessary to satisfy SAFR CARE’s obligations
under 45 CFR 164.528.:
i.
The date of
such disclosure;
ii.
The name and,
if known, the address of the recipient of such PHI;
iii.
A copy of the
request for disclosure, if any, accompanied by any necessary consents or
authorizations;
iv.
A brief
description of the PHI disclosed; and
v.
A statement
that would reasonably inform the Individual of the purpose of the disclosure.
(D) Notifications.
You agree to notify SAFR CARE immediately upon your discovery of any
unauthorized use or disclosure of PHI by you that is in violation of the
requirements of this Agreement (a “Breach”) including any breach of unsecured
PHI as required at 45 CFR 164.410, and any security incident of which you
become aware. Business Associate will make a written report to SAFR CARE within
24 hours after Business Associate knows or should have reasonably known of such
Breach. Business Associate will cooperate promptly with SAFR CARE as is
reasonably required in order for SAFR CARE to comply with applicable breach
reporting and notification laws, including but not limited to, Section 13402 of
the HITECH Act (collectively, “Breach Notification Laws”).
i.
“Unsecured PHI”
means PHI that is not secured through the use of technology or methodology that
renders the PHI unusable, unreadable or indecipherable to unauthorized
individuals. If electronic PHI is encrypted, it is considered to be secured
under the Breach Notification Laws. No Breach notification is required if the
electronic PHI was secure.
ii.
“Incident”
means the attempted or successful unauthorized access, use, disclosure,
modification or destruction of information or interference with information
system operations.
(E) Reciprocal
requirement. Business Associate must take the same steps a Covered Entity
must take if it knows of a pattern or practice of the other party in material
breach of the Business Associate Agreement.
(F) Mitigation.
You agree to establish and implement procedures for mitigating any deleterious
effects of any improper use and/or disclosure of PHI.
(G) Disclosures
to Workforce and/or Third Parties. You agree to require your employees,
agents and independent contractors (“Workforce”) to adhere to the restrictions
and conditions regarding PHI contained in this Section, including, without
limitation, the following:
i.
You agree not
to disclose PHI to any member of your Workforce, unless you have advised such
person of your obligations under this Section and the consequences of a
violation of these obligations. You agree to take disciplinary action against
any member of your Workforce that uses or discloses PHI in violation of this
Section.
ii.
Except as
otherwise authorized under this Agreement, you agree not to disclose PHI to any
third party without first obtaining our written approval. In addition, except
as otherwise authorized under this Agreement, you agree not to disclose PHI to
any third party without first obtaining the written agreement of such third
party to be bound by the requirements of this Section for the express benefit
of you and SAFR CARE.
iii.
Any use of PHI
by your Workforce or disclosure of PHI to your Workforce or to third parties
must be limited to the minimum amount of PHI necessary to achieve the purpose
for such use or disclosure.
(H) Access
to Records by Subject of Records. You agree to notify SAFR CARE immediately
in the event you receive a request from an Individual or the Individual’s legal
representative to review any of the Individual’s PHI in your possession or
control. In fulfillment of your obligations under 45 CFR 164.524, you agree to
make available to SAFR CARE, and, to an Individual or the Individual’s Legal
Representative for their review, any of the Individual’s PHI in your possession
or control, in the form or format (including electronic) as agreed to by SAFR
CARE and the Individual or the Individual’s Legal Representative.
(I) Amendment
to PHI. You agree to notify SAFR CARE immediately in the event you receive
a request from an Individual to amend or otherwise modify any PHI in your
possession or control. In fulfillment of your obligations under 45 CFR 164.526,
you agree that, at our request, you will make any amendments to PHI that SAFR
CARE has directed or authorized pursuant to 45 CFR 164.526. Modification of
this Agreement may be made in accordance with any change in the applicable
HIPAA or HITECH laws.
(J) Government
and SAFR CARE Access to Records. You agree to make your policies, books and
records relating to the use and disclosure of PHI available to the Secretary of
the U.S. Department of Health and Human Services and/or SAFR CARE for the
purpose of determining compliance with HIPAA and HITECH requirements, within 24
hours of any such request.
(K) SAFR
CARE’s Right to Audit. Business Associate shall provide SAFR CARE with
access to all records and security controls relating to the Business
Associate’s use, maintenance, and disclosure of PHI. Upon reasonable notice,
Business Associate shall permit employees, representatives, or other designees
of SAFR CARE (including outside auditors and/or regulators) to enter Business
Associate’s premises or any agreed upon backup facilities in order to inspect
such records and security controls to ensure Business Associate’s
compliance/continuing compliance with the terms of this Agreement and
applicable law. Business Associate agrees to assist SAFR CARE in all reasonable
respects during any such audit and agrees to grant SAFR CARE access to its
facilities for purposes of an audit upon prior written notice, during normal
business hours, unless otherwise permitted by applicable laws, rules, or
regulations.
(L) Disposition
of Records upon Termination. You agree to return to SAFR CARE or otherwise
destroy all PHI in your possession or control upon termination of this
Agreement. If such return or destruction of records is not feasible, you agree
to continue to extend the protections of this Section to such PHI and limit any
further use of such PHI to those purposes that make the return or destruction
of such PHI infeasible.
(M) Indemnification.
You agree to indemnify, defend, and hold harmless SAFR CARE and the applicable SAFR
CARE Client, and their respective parents, subsidiaries and affiliates, and
their respective shareholders, directors, officers, employees, agents, legal
representatives, heirs, successors and assigns, from and against any and all
claims, causes of action, losses, liabilities, damages, costs and expenses,
including, without limitation, court costs and attorneys’ fees, arising out of,
resulting from or caused by a violation by you, or any of your Workforce,
agents or subcontractors, of any HIPAA or HITECH requirements or of the terms
or conditions of this Agreement.
(N) Notice
of Terminated Personnel. You agree to notify SAFR CARE of any transfer,
termination, or departure, for any reason, of any personnel of the Business
Associate who (a) possessed any SAFR CARE organizational credentials, keys, and/or
badges; (b) had access to any of the SAFR CARE premises; (c) had access to any SAFR
CARE system; and/or (d) had access to any system containing PHI. You agree to
notify designated SAFR CARE personnel of any such transfer, termination, or
departure within fifteen (15) days of its occurrence.
(O) Civil
and Criminal Penalties. Whether intentional or unintentional, Business
Associates are subject to the same penalities as covered entities, as stated in
the Omnibus Rule under HITECH (Section 13410 (e)(i)). The
penalty structure for a breach of HIPAA laws has a number of tiers, based on
the awareness the violator had of the violation. OCR establishes the penalty
based on a number of “general factors” and the seriousness of the HIPAA breach.
2.
Our
Obligations.
In connection with your performance of the Services:
(A) Notification
of Restrictions on Use of PHI. SAFR CARE agrees to notify you immediately
of any restrictions on the use of or disclosure of PHI that SAFR CARE has
agreed to or is required to abide by under 45 CFR §164.522, to the extent that
such restriction may affect your use or disclosure of PHI.
(B)
Notification
of Disclosure of PHI to an Individual.
SAFR CARE agrees to notify you immediately in the event an Individual desires
you to disclose their PHI in your possession or control to the Individual or
the Individual’s Legal Representative.
(C) Notification
of Amendment to Subject PHI. SAFR CARE agrees to notify you immediately in
the event that SAFR CARE or an Individual desires you to amend or otherwise
modify any of their PHI in your possession or control.
3.
Term and
Termination.
This Agreement will commence on the Effective Date of this Agreement and will continue
until such time as the Underlying Agreement expires or is terminated and all
PHI provided by SAFR CARE or created or received by you for SAFR CARE is
destroyed or returned to SAFR CARE or, if it is infeasible to return or destroy
PHI, continue to use appropriate safeguards and comply with subpart C of 45 CFR
Part 164 with respect to electronic PHI to prevent use or disclosure of PHI,
other than as provided for in this Section, for as long as you retain the PHI.
Notwithstanding the foregoing, in the event of a material violation by Business
Associate, SAFR CARE shall have the right to terminate this Agreement and the
Underlying Agreement immediately upon notice to Business Associate. The
obligations of Business Associate under this Section shall survive the
termination of this Agreement.
4.
Third
Party Beneficiaries.
There are no
intended third-party beneficiaries of the obligations under this
Agreement. Without in any way limiting the foregoing, it is the intent that
nothing contained in this Agreement give rise to any right or cause of action,
contractual or otherwise, in or on behalf of any person whose PHI is used or disclosed
pursuant to this Agreement or any person who qualifies as a personal
representative of such person.
5.
Amendment
of Underlying Agreement.
It is the intention that this Agreement serves as amendment and supplement to
the Underlying Agreement.
6.
Interpretation. In the event of a conflict
between the terms of this Agreement and the terms of the Underlying Agreement,
the terms of this Agreement will control. Any ambiguity in this Agreement shall
be interpreted to permit compliance with HIPAA and HITECH.
7.
Compliance
with Security Requirements.
Business Associate shall comply and shall ensure agents and subcontractors
comply with the Security Requirements of 45 CFR Part 142 with respect to
electronic transmission of PHI.
|
Safr
Technologies, Inc.
|
|
|
By:
|
By:
|
|
Print:
Syed
Gilani
|
Print:
|
|
Title:
CEO
|
Title:
|
