PRIVIA SUBSCRIPTION AND SERVICES AGREEMENT
This Privia® Subscription and Services Agreement (this "Agreement") sets forth the terms and conditions pursuant to which Privia LLC ("Privia" "we," or "us"), provides access to Privia to an individual customer ("Customer" or "you"). PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY AFFECT YOUR RIGHTS AND LIMIT OUR LIABILITY.
2. DEFINITIONS. Certain capitalized terms, if not otherwise defined elsewhere herein, shall have the meanings set forth below.
- 2.1 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer and its Authorized Users to access the Application Service.
- 2.2 "Application Error" means any material nonconformity of the Application Service with the Documentation.
- 2.3 "Application Service" means the services ordered by Customer through a Customer Order and provided by Privia by means of access to the features and functionality of the Application Service, solely to the extent set forth and further described herein, and as limited by, the Customer Orders executed by the Parties.
- 2.4 "Application Update" means any version of the Application Service, developed subsequent to the Effective Date (as defined in Section 3.1) of a Customer Order, which implements minor improvements or augmentations, or which corrects failures of the Application Service to materially to conform to the then-current Documentation.
- 2.5 "Application Upgrade" means any version of the Application Service, developed subsequent to the Effective Date, which implements additional features or functions, or which produces substantial and material improvements with respect to the utility and efficiency of the Application Service, but which does not constitute merely an Application Update (as reasonably determined by Privia), and which is not marketed by Privia as a separate product and/or service.
- 2.6 "Authorized Users" shall have the meaning set forth in Section 3.3.
- 2.7 "Confidential Information" means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- 2.8 "Customer Content" means any data, media or content provided or used by Authorized Users for use in connection with the Application Service.
- 2.9 "Customer Order" means a document signed by both Parties identifying the Application Service. Each Customer Order shall be agreed upon by the Parties as described in Section 3.1.
- 2.10 "Distributable Code" means the executable, object code version of any software provided by Privia to Customer that may be used by Authorized Users to access the features and functions of the Application Service, either through downloaded and installed components or through browser-based access to the Application Service.
- 2.11 "Documentation" means the documentation provided by Privia relating to the Application Service.
- 2.12 "Eligible Support Recipients" shall have the meaning set forth in Section 6.2(a).
- 2.13 "Privia Website" means the web sites accessible at http://www.Privia.com and/or other web sites designated by Privia that permit access to the Application Service.
2.14 "Technical Support" means the provision of responses by qualified Privia personnel to questions from Eligible Support Recipients related to use and operation of the Application Service, including basic instruction or assistance related to functional errors in the Application Service, as described in Section 7.
3. ORDERS, ACCESS AND USE.
3.1 Orders. The Application Service to be provided by Privia under this Agreement shall be set forth and described in one or more Customer Orders executed by the Parties from time to time during the Term. The Parties shall negotiate and sign each Customer Order separately. Each Customer Order shall set out a description of the applicable Application Service to be provided by Privia, the costs associated with such Application Service, the schedule of payments for the Application Service, and any unique additional terms. No Customer Order will be deemed accepted by Privia unless and until Privia accepts such Customer Order in writing. Privia may review and reject Customer Orders in its sole discretion. A Customer Order shall become effective on the later date of the signatures of the Parties ("Effective Date"). If Customer submits its purchase order in connection with an Customer Order, and to the extent that any term, condition, or provision which may appear on Customer's purchase order conflicts with, modifies, or is in addition to the terms and conditions of this Agreement or an Customer Order, such term, condition or provision shall be of no force and effect notwithstanding the acceptance of such Customer Order.
3.2 Provision of Access. Subject to the terms and conditions contained in this Agreement, Privia hereby grants to Customer a non-exclusive, non-transferable right during the Order Term (as defined in Section 13.1) applicable to each Customer Order to allow Customer to access the features and functions of the Application Service through the use of any Distributable Code on computers under the control or supervision of Authorized Users, pursuant to a Customer Order and solely for Customer's internal business purposes by permitting no more than the cumulative number of Authorized Users for which Customer has paid the applicable subscription fee as set forth on one or more Customer Orders. Privia acknowledges that Customer may be in the business of providing services to third parties unrelated to the use of the Application Service ("Clients") and that such Clients may directly access and/or use the Application Service or may receive intangible benefit from use of the Application Service but only as Authorized Users and in order to collaborate with Customer relating to the services being provided to said Clients and that such use shall be considered part of Customer's internal business purposes. As soon as commercially practicable after the Effective Date, Privia shall provide to Customer the necessary Access Protocols to allow access to the Application Service and shall electronically deliver to Customer the Deliverable Code.
3.3 Authorized Users. For purposes of this Agreement, the term "Authorized Users" shall mean any single user of the Application Service who is granted access to the Application Service by Customer through the assignment of a user ID and for which Customer has paid the appropriate fees for such user and for Authorized Users who access the Application Service through the Distributable Code who have agreed to the associated clickwrap agreement described below. Each unique user ID may not be shared or used by more than one user, but may be reassigned from time to time by Customer to new users replacing users that no longer require access to the Application Service by designating each user ID as "active" or "inactive" as determined by Customer's designated administrators.
3.4 Distributable Code. Subject to the terms and conditions of this Agreement, Privia hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and license to distribute the Distributable Code solely to Authorized Users, and solely for use by such Authorized Users in conjunction with Customer's deployment of the Application Service. Customer acknowledges that any use of the Distributable Code shall be subject to the terms of a separate clickwrap agreement accompanying the Distributable Code and Customer shall take no actions that would prevent, amend or revoke such a license, and shall take whatever steps may reasonably be necessary to allow Authorized Users to review and accede to the terms of such clickwrap agreement.
3.5 Usage Restrictions. Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application Service, or Distributable Code is compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (ii) create any derivative product from any of the foregoing, except with the prior written consent of Privia; or (iii) allow third parties (other than Authorized Users) to gain access to the Application Service or use the Application Service as a service bureau; (iv) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer's rights under Sections 3.2 and 3.4. Customer will ensure that its use of the Application Service and the Documentation complies with all applicable laws, statutes, regulations or rules.
3.6 Retained Rights; Ownership.
(a) Ownership and use of Customer Content. Customer retains all right, title and interest in and to the Customer Content, and Privia acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Privia further acknowledges that Customer retains the right to use the Customer Content for any purpose in Customer's sole discretion. Subject to the foregoing, Customer hereby grants to Privia a non-exclusive, non-transferable right and license to use the Customer Content during the Term for the limited purposes of performing Privia's obligations hereunder.
(b) Ownership of Application Service and Distributable Code. Subject to the rights granted in this Agreement, Privia retains all right, title and interest in and to the Application Service and Distributable Code, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Privia retains the right to use the foregoing for any purpose in Privia's sole discretion.
4. PRIVIA OBLIGATIONS
4.1 Service Availability; Technical Support. Privia shall: (i) subject to its confidentiality obligations under Section 9, not use, edit or disclose to any party other than Customer any Customer Content; (ii) maintain the security and integrity of the Application Service and the Customer Content; (iii) provide telephone and online standard support to Customer's Eligible Support Recipients, at no additional charge, in accordance with Section 6.2 below; and (iv) use commercially reasonable efforts to make the Application Service generally available to Customer not less than 99.5% of the total time during the applicable Order Term for which Customer has purchased a Subscription to the Service, except for: (a) planned downtime (of which Privia shall give at least eight (8) hours notice via email and which Privia shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. ET Friday to 3:00 a.m. ET Monday); or (b) any unavailability caused by circumstances beyond Privia’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Privia employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Privia's possession or reasonable control, and network intrusions or denial of service attacks. The Parties acknowledge and agree that Privia will have no obligation to provide support to Customer with respect to (i) use of the Application Service other than according to the Documentation or the terms of this Agreement; or (ii) any combination of the Application Service with hardware that is not compatible with the hardware specified by Privia and/or software or technology not provided by Privia.
4.2 Responsibility for Application Service Hosting. Privia shall, at its own expense, provide for the hosting of the Application Service, provided that nothing herein shall be construed to require Privia to provide for, or bear any responsibility with respect to, the development or provision of, any telecommunications or computer network hardware or software required by Customer to provide access from the Internet to the Application Service. Privia will provide Customer with storage for Customer's use, as specified on the Customer Order Form.
5. CUSTOMER OBLIGATIONS.
- 5.1 Authorized Users Access. Customer may permit Authorized Users to access and use the features and functions of the Application Service only as contemplated by this Agreement. Customer acknowledges and agrees that, as between Customer and Privia, Customer shall be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User which, if undertaken by Customer, would constitute a breach of this Agreement or the clickwrap agreement accompanying the Distributable Code, shall be deemed a breach of this Agreement by Customer. Customer shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User's use of the Application Service, and shall cause Authorized Users to comply with such provisions.
- 5.2 Customer Responsibility for Data and Security. Customer and its Authorized Users shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order accessing the Application Service.
- 5.3 Provision of Customer Data. Prior to storing any Customer Content using the Application Service, Customer shall, at its own expense, obtain all third party consents and/or permissions that may be necessary or appropriate with respect to such Customer Content.
- 5.4 Use of the Service. Customer agrees that Customer will not use the Application Service in any manner for spamming, sending chain letters, junk mail, or using a distribution list to communicate with a person who has not given Customer specific permission to contact them in such a manner. Customer agrees not to use the Application Service to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind, including, but not limited to Customer Content. Customer agrees to use the Application Service only in a lawful manner and in accordance with this Agreement. Customer will be solely responsible for (a) sending or storing material and/or Customer Content containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (b) any act that may interfere with or disrupt the integrity or performance of the Application Service or the Customer Content contained therein; or (c) any attempt by any Authorized User or other Customer employee, contractor or agent to gain unauthorized access to the Application Service or its related systems or networks. Customer shall indemnify Privia for all damages resulting from such Customer responsibilities.
- 5.5 Assistance to Privia. Customer will, at its own expense, provide assistance to Privia, including, but not limited to, by means of access to, and use of, Customer facilities and Customer equipment, as well as by means of assistance from Customer personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Privia to perform its obligations hereunder.
6. MAINTENANCE AND SUPPORT.
- 6.1 Technology Maintenance.
- (a) Error Corrections. Privia will use commercially reasonable efforts to adapt, re-configure or re-program the Application Service, as applicable, in order to correct in a timely fashion any Application Errors reported to Privia by Eligible Support Recipients, provided that if Privia determines in good faith that any such Application Error is the result of errors or misstatements in the Documentation, Privia may correct such non-conformity solely by amending the Documentation, as necessary, and further provided that any failure or inability by Privia to correct any such Application Error, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Privia's obligations hereunder.
- (b) Procedural Workarounds. In the event that Privia fails or is unable to correct any Application Error, as required by this Support Agreement, Privia will use commercially reasonable efforts to develop in a timely fashion procedures or routines, for use by end users of the Application Service, which, when employed in the regular operation of, or access to, the Application Service, will avoid or substantially diminish the practical adverse effects of the relevant Application Error, provided that any failure or inability by Privia to develop any such procedure or routine, or failure or inability to do so in a timely fashion, will in no event be deemed a breach of Privia's obligations hereunder.
- (c) Application Updates; Application Upgrades. From time to time Privia may, in its discretion, develop Application Updates and/or Application Upgrades. Privia will, during the Term of this Support Agreement, make such Application Updates and/or Application Upgrades available to Customer, by notifying Customer that an Application Update and/or Application Upgrade will be implemented for Customer's hosted version of the Application Services, provided that Customer has paid all fees due under this Agreement. Any such Application Updates and/or Application Upgrades provided hereunder will be deemed to constitute part of the relevant Application Service and will be subject to all the terms and provisions hereof, including, without limitation, terms and provisions related to access to, usage restrictions and ownership of such Application Service.
- 6.2 Technical Support.
- (a) Support Obligation. Customer will be permitted to designate in writing to Privia up to three (3) designated Customer support representatives for purposes of obtaining Technical Support from Privia ("Eligible Support Recipients"). Customer may appoint new Eligible Support Recipients at any time to replace an Eligible Support Recipient who ceases to be employed by Customer or who ceases to provide such internal support services for Customer. Customer will notify Privia of the names of its Eligible Support Recipients as reasonably requested by Privia. Privia will provide Technical Support to such Eligible Support Recipients by means set forth in the following sections, subject to the conditions regarding availability or response times.
- (b) Telephone and Email Assistance. Privia's normal business hours are 8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday excluding company holidays for purposes of obtaining support in the use of the Application Service. Technical Support may be requested by email (firstname.lastname@example.org) or calling a provided support number during normal business hours. After hours support is provided through automatic on-call notification for severity 1 and severity 2 issues by sending a request to email@example.com.
- (c) Correction of Reproducible Errors; Severity Classifications. Reproducible errors submitted to Privia will be handled in accordance with the following error definition and problem resolution procedures. Resolution may take the form of a written response, supplementary documentation, work-around, fix, coding change, product patch, postponement to the next release or other correctional aids. Privia's response efforts begin when Privia has received all information from Customer necessary for Privia to be able to reproduce the suspected error. Response times are based on the time of receipt of reports received by telephone. Severity 1: The reported error relates to a critical loss of use of the Software causing it to be inoperable system-wide; no workaround is available; Severity 2: The reported error a causes significant loss of use of the Application Service; a procedural workaround is available and operation can continue in a restricted fashion; Severity 3: The problem causes minor loss of use of the Application Service. The impact is an inconvenience, which may require a workaround to restore functionality; Severity 4: The problem causes no loss of use of the Application Service. The result is a minor error, incorrect behavior, or a documentation error that does not impede the operation of a system.
- (d) Response Times: For Severity 1 and 2 issues Privia shall exercise commercially reasonable efforts to respond and provide resolution objectives within two (2) hours of receiving notice of a reproducible Application Error and exercise commercially reasonable efforts toward resolution until such resolution is achieved. For Severity 3 and 4 issues, Privia shall exercise commercially reasonable efforts to respond and provide resolution objectives within one (1) business day and shall exercise commercially reasonable efforts toward resolution in timeframes specified by Privia. Privia shall report progress to Customer periodically as Privia determines necessary thereafter. Except for Severity 1 and Severity 2 to which Privia shall immediately respond, response times shall be within Privia's normal support hours (8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday). A report received overnight or on a weekend will be considered received at 8:00 a.m. on the next business day. Privia will make reasonable efforts to accommodate requests for modifications; however, Privia is under no obligation to incorporate such requests from Customer in current or future releases of any Application Service.
- (e) Customer Access. Customer shall provide access to, and the assistance of, Customer personnel who possess information required by Privia for purposes of performing its Technical Support obligations hereunder. Customer acknowledges that Privia may remotely monitor Customer's use of the Application Service for purposes of providing maintenance and support pursuant to this Agreement. Privia shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Customer's failure to perform its obligations under this Section 6.2(e).
- 6.3 Limitations to Customer Assistance.
- (a) Eligible Recipients. Privia shall have no obligation to provide Technical Support, by any means, to any entity or individual other than Eligible Support Recipients.
- (b) Privia Corporate Holidays. Privia shall have no obligation to provide Technical Support during any Privia corporate holiday, which includes New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving Day, and Christmas Day.
- (c) Distributable Code. Customer acknowledges that Privia shall have no obligation under this Agreement to provide Technical Support with respect to use of the Distributable Code by Authorized Users.
- (d) Technical Support Exemptions. Unless otherwise agreed by the Parties, Privia shall have no obligation to provide Technical Support with respect to any Application Error resulting from (i) use of the Application Service other than according to the Documentation and the terms of this Agreement; (ii) modification of the Application Service by Customer or any third party, except as expressly permitted in writing by Privia; or (iii) any combination or integration of the Application Service with hardware that is not compatible with the hardware specified by Privia and/or software or technology not provided by Privia, regardless of whether such combination or integration is permitted under the terms of the License Agreement.
- (e) Version Requirements. Customer acknowledges that the Application Service is hosted by Privia and, accordingly, that Privia will automatically upgrade or update the Application Service as part of the updating or upgrading of other hosted customer installations of the Application Service.
- (f) General Protection of Privia Intellectual Property. Privia shall not be required to provide Technical Support to the extent the provision thereof might reasonably be expected to jeopardize or harm Privia's rights in any intellectual property, or reveal trade secrets or other proprietary information of Privia not generally available to the public or to end users of the Application Service.
- (g) Compliance with Third-Party Constraints. Privia shall not be required to provide Technical Support to the extent the provision thereof would violate Privia's obligations to its third party licensors and suppliers with respect to such third parties' intellectual property.
7. PROFESSIONAL SERVICES.
- 7.1 Provision of Professional Services. The Parties anticipate that Customer may desire to engage Privia to perform certain services in connection with the access rights granted to Customer by Privia under this Agreement, including, by way of example, configuration and/or training services. Subject to the terms and conditions set forth in this Agreement, Privia shall use commercially reasonable efforts to perform the services as set forth in Statements of Work (as defined below) separately executed by the Parties (the "Professional Services"). Privia shall perform the Professional Services in a professional manner in accordance with industry standards.
- 7.2 Issuance of Statements of Work. The Customer may request that Privia perform services by delivering a written request describing the proposed Professional Services. Privia shall prepare a draft statement of work and submit to Customer for Customer's approval (each, a "Statement of Work"). Such Statement of Work shall describe the specific services, fees, costs and expenses payable by the Customer to Privia in connection with the performance of such services. Until Customer's acceptance in writing of the proposed Statement of Work, Privia shall have no obligation to perform the proposed Professional Services. Each Statement of Work shall become effective upon execution by authorized representatives of both Parties. Modifications in any Statements of Work shall become effective only when a written change request is executed by authorized representatives of both Parties.
- 7.3 Suitability. Privia shall assign employees and subcontractors with qualifications suitable for the work described in the relevant Statement of Work. Privia may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
- 7.4 Customer Responsibilities. Customer shall make available in a timely manner at no charge to Privia all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer required by Privia for the performance of the Professional Services. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to Privia, office space, services and equipment (such as copiers, fax machines and modems) as Privia reasonably requires to perform the Professional Services.
- 7.5 Non Solicitation. Customer acknowledges and agrees that the employees and consultants of Privia who perform the Professional Services are a valuable asset to Privia and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the termination or expiration of this Agreement, it shall not knowingly solicit for hire (whether as an employee, independent contractor or consultant) any Privia employee or consultant who performs any of the Professional Services. Customer agrees that for each individual that Customer hires in violation of this Section 7.5, Customer shall pay to Privia liquidated damages equal to twenty percent (20%) of the annual cumulative value of salary and benefits paid or payable to that individual by either Customer or Privia, whichever amount is greater. Such prohibitions shall not apply to employees or consultants who answer public advertisements, or who apply for employment with Customer without any solicitation.
- 7.6 Proprietary Rights. Unless otherwise expressly agreed in any particular Statement of Work, except to the extent that the same constitutes or embodies Customer's Confidential Information, ownership of all work product, developments, inventions, technology or materials shall be solely owned by Privia, subject to the usage rights to the Application Service granted to Customer under the relevant Statement of Work and this Agreement.
- 7.7 Statement of Work Term. A Statement of Work shall become effective on the date of execution by both Parties and shall remain in effect until the earlier to occur of (i) completion of all outstanding Statements of Work hereunder; or (ii) termination of this Agreement in accordance with Section 13. Notwithstanding the foregoing, unless otherwise stated in the applicable Statement of Work, the term of each Statement of Work shall last until performance thereunder is completed.
8. FEES AND TAXES.
- 8.1 Fees. In consideration for the access rights to the Application Service granted to Customer and the Professional Services performed for Customer under this Agreement, Customer will pay to Privia, without offset or deduction, all fees required by a particular Customer Order and/or Statement of Work. Except as expressly provided herein, in a Customer Order or Statement of Work, all fees are nonrefundable. Subscription fees for Customer Orders subsequent to the initial Customer Order will be prorated to have the same renewal date as the initial Customer Order unless the remaining Term (as defined in Section 13) is less than six (6) months, in which case the fees for the subsequent Customer Order will be for twelve months and the fees for all prior Customer Orders will be incremented to provide for a new renewal date equal to the renewal date of the latest Customer Order. Unless otherwise provided in such Customer Order or Statement of Work, all such fees shall be due and payable within thirty (30) calendar days after Customer's receipt of an invoice from Privia with respect thereto. Privia reserves the right to charge, and Customer agrees to pay, a late charge equal to one and one-half percent (1½%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance.
- 8.2 Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Privia's income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to Privia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Privia will be Customer's sole responsibility, and Customer will, upon Privia's request, provide Privia with official receipts issued by appropriate taxing authorities, or such other evidence as Privia may reasonably request, to establish that such taxes have been paid.
9. TREATMENT OF CONFIDENTIAL INFORMATION.
- 9.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party's Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
- 9.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing restrictions, Privia may use aggregated statistical data regarding Customer's use of the Application Service without limitation provided that Customer will not be identifiable by name in such aggregated information.
- 9.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 9.1 and 9.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party's rights under this Agreement, including to make such court filings as it may be required to do.
10. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. Customer represents and warrants that it owns or otherwise has sufficient intellectual property rights, including all "artist's rights" and "moral rights," to grant Privia access to and use of the Customer Content in accordance with the terms of this Agreement.
11. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
- 11.1 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICE, THE DISTRIBUTABLE CODE, THE DOCUMENTATION, AND ANY OTHER SOFTWARE OR SERVICES PROVIDED BY PRIVIA ARE PROVIDED "AS IS," AND PRIVIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. PRIVIA DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY SERVICES OR SOFTWARE PROVIDED BY PRIVIA WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE OR DISTRIBUTABLE CODE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
- 11.2 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL PRIVIA BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF PRIVIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF PRIVIA TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED TOTAL AMOUNT OF ALL SUBSCRIPTION FEES PAID TO PRIVIA BY CUSTOMER UNDER SECTION 8.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- 11.3 Essential Basis of the Agreement. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
- 12.1 Indemnification of Customer. Privia shall indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from any claim by any third party that: (a) the Application Service and/or the Documentation infringes such third party's U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party's copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; or (b) Privia's gross negligence or willful misconduct, provided that Customer promptly notifies Privia in writing of the claim, cooperates with Privia, and allows Privia sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Privia, at Privia's sole discretion, to enable it to continue to use the Application Service or the Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing. If Privia determines that none of these alternatives is reasonably available, Customer shall, upon written request from Privia, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 12.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Application Service or the Documentation by Customer, or (ii) combination, operation or use of the Application Service with, hardware that is not compatible with the hardware specified by Privia or software or other technology not provided by Privia, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a "Customer Indemnity Responsibility"). IN NO EVENT SHALL PRIVIA'S LIABILITY UNDER THIS SECTION 12.1 EXCEED THE CAP ON LIABILITY SET FORTH IN SECTION 11.2. THIS SECTION STATES PRIVIA'S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
- 12.2 Customer's Indemnity Obligations. Customer agrees to hold harmless, indemnify, and, at Privia's option, defend Privia from and against any losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from (a) Customer's gross negligence or willful misconduct; or (ii) a Customer Indemnity Responsibility, provided that Privia promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim; provided that Customer will not settle any third-party claim against Privia unless such settlement completely and forever releases Privia from all liability with respect to such claim or unless Privia consents to such settlement, and further provided that Privia will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
13. TERM AND TERMINATION.
- 13.1 Term. This Agreement commences on the Effective Date and continues until all Order Terms (as defined below) or renewal terms have expired or been terminated. Order Terms commence on the "start date" indicated on a Customer Order and continue for the duration of time specified therein ("Order Term"), unless earlier terminated in accordance with this Section 13. The Order Term(s), together with any renewal terms are collectively referred to as the "Term").
- 13.2 AUTOMATIC RENEWAL. UNLESS AND UNTIL TERMINATED BY EITHER PARTY PURSUANT TO SECTIONS 13.3 OR 13.4, OR EITHER PARTY PROVIDES WRITTEN NOTICE OF NON-RENEWAL TO THE OTHER PARTY AT LEAST SIXTY (60) DAYS PRIOR TO THE SCHEDULED EXPIRATION OF THE THEN-CURRENT TERM, THE TERM SHALL AUTOMATICALLY RENEW FOR THE THEN CURRENT NUMBER OF AUTHORIZED USERS AND BE EXTENDED UPON ITS EXPIRATION (REGARDLESS OF WHETHER PREVIOUSLY RENEWED OR EXTENDED) FOR 12 MONTHS. THE TERMS AND CONDITIONS APPLICABLE TO ANY SUCH RENEWAL OR EXTENSION SHALL BE THE SAME AS THOSE SET FORTH HEREIN, FOR THE APPLICATION SERVICE SERVICES CONTRACTED IN THE INITIAL CUSTOMER ORDER AND ADDITIONAL CUSTOMER ORDERS, EXCEPT THAT, UNLESS EXPRESSLY PROVIDED OTHERWISE IN THE APPLICABLE CUSTOMER ORDER, THE FEES APPLICABLE TO SUCH RENEWAL OR EXTENSION SHALL BE AT PRIVIA'S THEN CURRENT RATES.
- 13.3 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period.
- 13.4 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party's creditors.
- 13.5 Effect of Termination. Upon any termination of this Agreement, each Party shall (i) immediately discontinue all use of the other Party's Confidential Information (expressly including the Application Service); (ii) subject to Section 13.6, delete the other Party's Confidential Information from its computer storage or any other media, including, but not limited to, the Distributable Code and any online and off-line libraries; (iii) return to the other Party or, at the other Party's option, destroy, all copies of such other Party's Confidential Information then in its possession; and (iv) promptly pay all amounts due and remaining payable hereunder.
- 13.6 Return of Customer Data. Upon a request by Customer made within thirty (30) days of the effective date of termination, Privia will make available to Customer for download or physical delivery, a file of Customer Content in comma separated value (.csv) format. After such thirty (30)-day period, Privia shall have no obligation to maintain or provide any Customer Content and shall thereafter, unless legally prohibited, delete all Customer Content in its systems or otherwise in its possession or under its control.
- 13.7 Survival. The provisions of Sections 3.6, 9, 10, 11, 12, 13, and 14 will survive the termination of this Agreement.
- 14.1 Changes to the Services. Privia expressly reserves the exclusive right to, without prior notice, at any time and from time to time,: (i) offer new, additional, or substitute services; (ii) modify, amend, or discontinue offering all or any particular services; and (iii) post a revised version of this Agreement on the Privia Website. Nevertheless, during the Term Privia shall not, except as expressly provided elsewhere in this Agreement: (a) materially and significantly reduce or decrease the functionality and features of the Application Service; or (b) cease offering any of the Application Service without offering a substitute of comparable functionality and features. Further, despite the posting at any time of a new version of this Agreement on the Privia Website, any previously executed Customer Orders and Statements of Work shall continue to be governed by the version of this Agreement in effect as of the date of such Customer Order or Statement of Work. You agree to accept as the true and accurate copy of this Agreement the version hereof maintained with respect to the date of the applicable Customer Order or Statement of Work by Privia in the course of its normal backup and archival process.
- 14.2 Governing Law. This Agreement shall be governed by and construed under the substantive laws of the State of Virginia, without regard to choice of law provisions thereof. The application of the United Nations Convention of Contracts for the International Sale of Goods and the provisions of any state law adopting, in whole or in part, or in any modified form, the provisions of the Uniform Computer Information Transactions Act are expressly excluded herefrom. The exclusive forum and venue for any legal or equitable claim or action brought in connection with this Agreement shall be the state and federal courts situated in Fairfax County in the State of Virginia. The Parties hereby irrevocably submit and consent to the personal and subject matter jurisdiction of such courts and irrevocably waive any objection or claim that venue is improper for any reason in such courts.
- 14.3 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party's reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days' written notice.
- 14.4 Notices. All notices required hereunder shall be in writing or in electronic format and shall be deemed to have been given when mailed by first class mail to the respective address, when sent via email to the respective email address, or when sent via receipted facsimile to the respective facsimile number, specified in the applicable Customer Order or in the applicable Subscription and as updated in accordance herewith.
- 14.5 Arbitration. Except for any claims or actions seeking injunctive relief for a breach or alleged breach of Section 3.6 or Section 9, any dispute, claim, or controversy arising out of, or relating to, this Agreement (a "Dispute") shall be addressed in accordance with this Section 14.5. Each Party agrees to notify the other in writing as soon as reasonably practicable after becoming aware of the basis of a Dispute and to use commercially reasonable efforts to informally resolve or settle the Dispute after providing or receiving such a notice. Nevertheless, if the Parties fail to resolve such a Dispute within thirty (30) days after the date that such notice was received; either Party may submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Any such arbitration shall be conducted in Herndon,VA before an arbitrator having at least five (5) years experience in the information technology industry. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
- 14.6 Attorneys' Fees. In any arbitration, suit, action, or proceeding relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection therewith. Privia shall also be entitled to reimbursement for any and all of its collection costs in the event of late payment or nonpayment by Customer.
- 14.7 Assignment; Delegation. Neither party may assign or transfer this Agreement without the other party's prior written approval, except in connection with the sale of all or substantially all of the party's stock or assets for which prior notice but not prior written approval shall be required.
- 14.8 Independent Contractors. Customer and Privia acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
- 14.9 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
- 14.10 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
- 14.11 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- 14.12 Causes of Action. No action arising from or related to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due.
- 14.13 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- 14.14 U.S. Government End-Users. Each of the Documentation and the software components that constitute the Application Service and Distributable Code is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service, the Distributable Code and the Documentation with only those rights set forth therein.
- 14.15 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
- 14.16 Entire Agreement. This Agreement and the terms and conditions set forth on Customer Orders and Statements of Work, set forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement, the Customer Orders and Statements of Work, and supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.
[End of Privia Subscription and Services Agreement]