Software-as-a-Service

Terms and Conditions

The following terms and conditions apply to the Agreement formed between HealthCare Facility Compliance Corp., a Delaware corporation, with offices located at 50 Tice Blvd, Suite 340, Woodcliff Lake NJ 07677 (“HCF”) and the Customer executing the HCF Software-as-a-Service Customer Order Form that is accompanied by this document (“Customer”).

1. DEFINITIONS. As used in this Agreement:

• “Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against a party or its personnel in relation to their activities under or pursuant to this Agreement.
• “Authorized Customer Entities” means specific Customer-affiliated entities named in a Customer Order Form who are authorized to access and use the Service during the Subscription Term.
• “Authorized User(s)” means end users of Customer and Authorized Customer Entities who have completed HCF’s online registration process or who otherwise receive a user ID or other access credentials from HCF or Customer authorizing them to access and use the SaaS.
• “Authorized Purpose(s)” means those purposes set forth in a Customer Order Form or on HCF’s Web Site describing the purposes for which the applicable SaaS and associated Content are permitted to be used by Customer and its Authorized Users. If no Authorized Purpose is stated, the Authorized Purpose shall be internal business use by Customer and Authorized Customer Entities.
• “Confidential Information” means all non-public written or oral information, disclosed by either Party to the other, related to the business or operations of either Party or a third party that has been identified as confidential or that by the nature of the information or circumstances surrounding its disclosure ought reasonably to be understood as being confidential.
• “Content” means any data, media, information and/or other type or form of content displayed, distributed or otherwise made available to a Party through the SaaS or other Services, including User Content and HCF Content.
• “Customer Data” means any data owned by Customer or an Authorized Customer Entity that is submitted to the Service for processing transmission, and/or storage.
• “Customer Order Form” means an order form issued by HCF and executed by Customer and HCF setting forth the necessary information relating to the SaaS and/or other Services to be provided to Customer under this Agreement and the fees payable to HCF.
• “Data Privacy and Security Laws” means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, of or by any United States federal or state government entity, or any authority, department or agency thereof governing the privacy, data protection and security of Personally Identifiable Information and security breach notification relating to Personally Identifiable Information, and any other laws in force in any jurisdiction (regulatory or otherwise) in which the SaaS is being utilized.
• “HCF Content” means Content owned, originated or controlled by HCF that is made accessible to Customer or its Authorized Users via the SaaS or other Services.
• “HCF’s Web Site” means the web interface of the SaaS platform that HCF offers for interaction with and receipt of the Services.
• “Including” (and its derivative forms, whether or not capitalized) means including without limitation.
• “Intellectual Property Rights” means the legal rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by applicable law.
• “Losses” means, in connection with a Claim (as defined in Section 5.3 below) that is subject to defense and indemnification by a Party under this Agreement, all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, and any resulting liabilities, damages, settlements, judgments and awards, including associated taxes, interest and penalties.
• “Mobile App” refers, if and when applicable, to proprietary HCF software, in object code form, that is made available by HCF for installation on mobile devices to allow interaction and use with the SaaS.
• “SaaS” means HCF’s proprietary web-based software-as-a-service platform and related services made available to Customer’s Authorized Users under this Agreement, as identified on the applicable Customer Order Form, including its technology components, such as HCF’s Web Site, applicable Mobile App(s), and related documentation.
• “Services” means, collectively, the SaaS and any professional services performed by HCF pursuant to this Agreement.
• “Subscription Term” means the period during which Customer’s Authorized Users are permitted to access and use the SaaS, as set forth in the applicable Customer Order Form.
• “Support Services” has the meaning given in Section 4.
• “Update” means any improvement, enhancement, modification and/or changes to the SaaS offered or provided by HCF to its subscribers at no charge.
• “User Content” means any Content submitted, posted or displayed by Authorized Users of the SaaS or the Mobile App.
• “User Data” means any data or information (other than User Content) received or collected by HCF concerning Authorized Users of the SaaS or the Mobile App, including data provided by Authorized Users to register to use the SaaS or a Mobile App.

2. ACCESS TO AND USE OF THE SAAS.

• 2.1. Limited-Purpose Access Grant. Subject to Customer’s and its Authorized Users’ continuing compliance with this Agreement and payment of the applicable fees, HCF hereby grants to Customer a limited, personal, non-exclusive, non-transferable right for Authorized Users of Customer and any other Authorized Customer Entities to access the features and functions of the SaaS during the Subscription Term, solely through HCF’s Web Site or Mobile App and solely for the Authorized Purpose(s). This access grant may not be sublicensed, in whole or in part. The scope of Customer’s use of the SaaS is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations set forth in the applicable Customer Order Form.
• 2.2 Access Protocols. On or as soon as reasonably practicable after the execution of this Agreement, HCF shall provide to Customer the necessary access credentials or protocols, passwords and network links or connections to allow Customer’s Authorized Users to access the SaaS (the “Access Protocols”). The Parties further agree that prior to installing the Mobile App, each Authorized User shall be deemed to have accepted any End User License Agreement (“EULA”) provided upon download of the Mobile App. Customer acknowledges and agrees that, as between Customer and HCF, Customer shall be responsible for all acts and omissions of Authorized Users, including any act or omission by an Authorized User, which, if undertaken by Customer, would constitute a breach of this Agreement. Customer shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement that are applicable their use of the SaaS and shall cause them to comply with such provisions.
• 2.3. Account Administration. Customer shall designate at least one Authorized User to act as an administrator who will act as Customer’s principal point of contact with HCF for purposes of this Agreement.
• 2.4. User Content. The SaaS may enable Customer’s Authorized Users to search for, find, store, manage and use User Content of interest that is provided or made accessible through the SaaS. Customer acknowledges that HCF does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, reliability or other attributes of any User Content, nor does HCF review or attempt to verify the accuracy or currency of any User Content. As between Customer and HCF, Customer is solely responsible for (i) determining the suitability of any User Content for its intended use by Customer and Authorized Customer Entities, and (ii) as necessary for its intended use, verifying the authenticity and accuracy of the User Content prior to using it. HCF has no obligation to preview, verify, flag, modify, filter or remove any User Content. Either HCF or Customer may remove or disable access to any User Content at its sole discretion, but is not responsible for any failures or delays in removing or disabling access to any User Content unless otherwise provided herein, including User Content that may be considered harmful, inaccurate, unlawful or otherwise objectionable.
• 2.6. Compliance. (a) Customer’s and its Authorized Users’ access to and use of the SaaS is subject to their continuing compliance with all of the following: (a) the terms and conditions set forth in this Agreement; (b) HCF’s online Terms of Use and online Privacy Policy available on HCF’s Web Site; (c) third party service terms and conditions governing any Content accessed through the SaaS that is published or distributed by a third-party web site, and (d) Applicable Laws, including Data Privacy and Security Laws. In the event of a conflict between this Agreement and the online Terms of Use, this Agreement shall prevail and control.
• (b) In addition to complying with applicable Data Privacy and Security Laws in its capacity as a service provider, HCF will employ commercially reasonable security and access controls designed to protect the types of data collected and stored by the Service, including Personally Identifiable Information, if any.
• 2.7. Restrictions. Customer agrees not to act outside the scope of the rights that are expressly granted by HCF in this Agreement. Further, Customer will not (i) use the SaaS in any manner that is inconsistent with this Agreement; (ii) modify any program code of the SaaS or attempt to create or permit the creation of any derivative works of the SaaS; (iii) access or use the SaaS in any way to develop or support, or assist another party in developing or supporting, any products or services competitive with the SaaS; (iv) decompile, reverse engineer (unless required by law for interoperability), or use any other method in an attempt to view or recreate any of the source code of the SaaS or extract any trade secrets from it; (v) use the SaaS to operate the business of a third party or to process data or content provided by a third party for the operation of a third party’s business, or otherwise use the SaaS on a third party’s behalf, or to act as a service bureau or provider of application services to any third party; (vi) knowingly or intentionally re-use, disseminate, copy, or otherwise use the SaaS or associated Content in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of HCF or any third party; or (vii) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights granted by this Agreement with respect to the SaaS.
• 2.8. No Interference with Service Operations. Customer and its Authorized Users will not take any action designed or intended to: (a) interfere with the proper working of the SaaS; (b) circumvent, disable, or interfere with security-related features of the SaaS or features that prevent or restrict use, access to, or copying the SaaS or any Content or other data, or that enforce limitations on use of the SaaS or Content; or (c) impose (or which may impose, in HCF’s sole discretion) an unreasonable or disproportionately large load on the SaaS infrastructure.
• 2.9. Access and Use Outside the U.S. The Service is offered for use in the U.S. and any other territory set forth in the Customer Order Form. As between Customer and HCF, Customer is solely responsible for compliance with Applicable Laws relevant to its Authorized Users accessing or using the SaaS while outside the U.S. and such other territory.

3. CONFIDENTIALITY OBLIGATIONS.

• 3.1 Confidential Information. Confidential information means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure: including, without limitation, each party’s respective business plans and processes; financial and employee data; proprietary technology and product information and designs; the SaaS, HCF Web Site, Mobile Apps, HCF Content; Customer Content; and the terms of the Agreement. Without limitation, HCF’s prices to Customer are its Confidential Information. Confidential Information excludes information that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without breach of any obligation to the Disclosing Party; (iv) was independently developed by the Receiving Party, subject to HCF’s Intellectual Property Rights set forth in this Agreement; or (v) is SaaS usage metrics in an aggregate form and not attributable to the Disclosing Party.
• 3.2 Disclosure. The Receiving Party shall (i) not disclose and use the same degree of care to protect the Disclosing Party’s Confidential Information against unauthorized disclosure that it uses to protect its own Confidential Information (but in no event less than reasonable care); and (ii) not use Confidential Information except to the extent necessary under this Agreement. To the extent necessary under this Agreement, each party may disclose the Confidential Information of the other party to employees or subcontractors who are bound by written obligations of confidentiality and non-disclosure at least as protective as those set forth herein. In the event of a court order or government regulation compelling disclosure of any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice thereof, and shall reasonably cooperate with the other party to seek confidential or other protective treatment. Each party’s obligations set forth in this Section 3 shall remain in effect after termination of the Agreement for 3 years. Each party will promptly return to the other party all Confidential Information of the other party in its possession or control upon request from the Disclosing Party.
• 3.3 Client List. HCF may include Customer’s name on HCF’s client list and may describe briefly, and in general terms, the nature of the services provided by HCF to Customer.

4. SUPPORT SERVICES.

• 4.1. Technical Support. At no additional charge and during HCF’s normal business hours (which are 8:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday, excluding HCF-designated holidays unless otherwise specified in the applicable Customer Order Form), HCF will provide reasonable technical support and assistance for Authorized User requests by telephone or sent via email at an address provided by HCF. HCF may also offer upgraded support services for an additional fee.
• 4.2. Updates. Customer will be given access to Updates of the SaaS that HCF implements during the Subscription Term. Customer acknowledges, however, that HCF may in the future offer optional value-added functions, features, or other capabilities for a separate fee.
• 4.3. Scheduled Maintenance. HCF reserves the right to take down applicable servers hosting the SaaS to conduct scheduled and emergency maintenance. HCF will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours. HCF will not be responsible for any damages or costs incurred by Customer due to unavailability of the SaaS during scheduled or emergency maintenance.

5. ALLOCATIONS OF RISK.

• 5.1. Representations and Warranties. (a) Each Party represents to the other (i) that the execution and performance of its obligations under this Agreement will not conflict with or violate any provision of Applicable Law or any other agreement or order by which the Party is bound; and (ii) 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.
• (b) HCF warrants that any professional service performed by HCF under this Agreement will be performed in a good and workmanlike manner. In the event of a breach of this warranty, HCF’s sole obligation and Customer’s sole remedy will be for HCF to correct or re-perform the affected professional service without undue delay to remedy the breach, at no charge to Customer.
• 5.2. DISCLAIMERS. (a) CUSTOMER REPRESENTS THAT IT IS ENTERING THIS AGREEMENT WITHOUT RELYING UPON ANY HCF REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HCF DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, AND ALL WARRANTIES THAT MAY OTHERWISE BE IMPLIED. NO WARRANTIES ARE MADE ON THE BASIS OF TRADE USAGE, COURSE OF TRADE, OR COURSE OF DEALING OR PERFORMANCE.
• (b) CUSTOMER ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST HCF, FOR THE SELECTION OF THE SAAS TO ACHIEVE CUSTOMER’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SAAS IN CUSTOMER’S BUSINESS. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SAAS, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS. HCF DOES NOT WARRANT THAT THE SAAS WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SAAS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
• (c) THE SAAS IS NOT DESIGNED OR PERMITTED TO BE USED IN OR FOR HIGH-RISK OR HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SAAS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). HCF EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE SAAS FOR HIGH RISK ACTIVITIES.
• 5.3. Indemnification of Customer by HCF. HCF agrees to defend, indemnify, and hold harmless Customer and its Affiliates from and against all third-party claims and actions (collectively, “Claims” and individually, a “Claim”), that may, at any time, arise out of or relate to a Claim that the SaaS (excluding, however, User Content) provided by HCF hereunder or Customer’s use of same in accordance with the terms hereof infringes any third party’s Intellectual Property Rights; and, in connection therewith, associated Losses. If any portion of the SaaS becomes the subject of an infringement Claim, HCF may, at its option: (a) obtain permission for Customer’s continued use of the SaaS; (b) replace or modify the SaaS to avoid infringement, such update or replacement having substantially similar capabilities; or, if the foregoing (a) and (b) are not available on commercially reasonable terms, (c) terminate Customer’s use of the affected SaaS upon 30-days’ written notice and refund the pro rata portion of prepaid SaaS Monthly Subscription Fees covering the remainder of the Subscription Term after the date of termination. The foregoing shall be Customer’s sole and exclusive remedy associated with such infringement Claim. Notwithstanding the foregoing, HCF shall have no liability for any Claim to the extent arising from: (i) any use of the SaaS which exceeds the scope of the subscription granted to Customer or due to the Customer Content; (ii) use of the SaaS by Customer not in compliance with Applicable Laws; (iii) use of the SaaS after HCF notifies Customer to discontinue use; or (iv) modifications to the SaaS or use of the SaaS in combination with any software, application or service made or provided other than by HCF.
• 5.4. Indemnification of HCF by Customer. Except for any Claims in respect of which HCF is obligated to indemnify Customer under Section 5.3, Customer agrees to defend, indemnify and hold harmless HCF and its Affiliates from and against all Claims, that may, at any time, arise out of or relate to: (a) use of the SaaS or any Content by or on behalf of Customer or an Authorized Customer Entity other than in accordance with this Agreement; (b) the posting, display, distribution, broadcast or other use of User Content by or on behalf of Customer or an Authorized Customer Entity, including Claims that any such use infringes or otherwise violates the rights of any third party, including Intellectual Property Rights, privacy, publicity or other personal or proprietary rights, or that the User Content posted, displayed, distributed, broadcast or otherwise published contains libelous, defamatory or otherwise injurious or unlawful material; and, in each case, associated Losses.
• 5.5. Indemnification Procedures. If any third party makes a Claim covered by Section 5.3 or Section 5.4 against an indemnitee (a “Covered Party”) with respect to which the Covered Party intends to seek indemnification under this Agreement, the Covered Party shall give prompt written notice of the Claim to the indemnifying Party, including a brief description of the amount and basis for the claim, if known. Upon receiving such notice, the indemnifying Party shall be obligated to defend the Covered Party against the Claim, and shall be entitled to assume control of the defense and settlement of the Claim. The Covered Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control. The indemnifying Party shall keep the Covered Party reasonably apprised as to the status of the Claim. Neither the indemnifying party nor any Covered Party shall be liable for any settlement of a Claim made without its consent. Notwithstanding the foregoing, the Covered Party shall retain responsibility for all aspects of the Claim that are not subject to indemnification by the indemnifying Party hereunder.
• 5.6. Limitation of Liability. Except as expressly provided in this Section 5.6, neither Party shall have any liability under or in connection with this Agreement for any indirect, incidental, consequential, special, exemplary or punitive damages, nor any liability for lost profits, loss of data, loss of business opportunity, or business interruption, regardless of the theory of liability (including theories of contractual liability, tort liability, or strict liability), even if the liable Party knew or should have known that those kinds of damages were possible. Each Party’s maximum cumulative liability under or in connection with this Agreement shall never exceed the injured Party’s actual direct damages, capped at an amount equal to the total amount paid under this Agreement by Customer to HCF during the 6-month period preceding the occurrence of the event giving rise to liability. Except as otherwise stated, the foregoing limitations of liability shall not be applicable to a Party’s indemnification obligations under this Section 5 or to any damages that the liable Party is not permitted to disclaim (or, as applicable, limit) under Applicable Law or Customer’s breach of HCF’s Intellectual Property Rights as set forth in this Agreement. Customer acknowledges that this Section 5.6 is an essential part of this Agreement, absent which the economic terms and other provisions of this Agreement would be substantially different.

6. DURATION AND TERMINATION.

• 6.1. Duration of Agreement. This Agreement commences on the Subscription Term start date set forth in the first Customer Order Form executed by both Parties and continues until all Customer Order Forms entered into by the Parties have expired or been terminated in accordance with this Agreement.
• 6.2. Termination. Either Customer or HCF may terminate this Agreement, and all Customer Order Forms or only affected Customer Order Forms (a) for cause upon written notice to the other Party if the other Party has committed a material breach of this Agreement and the breach remains uncured 30 days after the breaching party has received written notice of the breach from the non-breaching party, or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
• 6.3. Effect of Termination on Fees. If this Agreement is terminated by Customer pursuant to Section 6.2, any pre-paid fees for the unused portion of the terminated Subscription Term will be refunded to Customer. In all other cases, all fees paid or payable for the terminated Subscription Term are non-cancellable and non-refundable, and any unpaid fees for the remainder of the terminated Subscription Term will become immediately due and payable.
• 6.4. Other Effects of Termination. Effective immediately upon expiration or termination of this Agreement, (i) all rights granted under this Agreement will become void, (ii) Customer shall cease all use of the SaaS, and (iii) neither Party will have continuing rights to use any Confidential Information of the other Party or to exercise any Intellectual Property Rights of the other Party that were licensed under this Agreement. However, Customer shall have 30 days after any such expiration or termination to download or otherwise obtain an extract of any Customer Data stored by the Service at the time of expiration or termination.
• 6.5. Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration will survive the expiration or termination of this Agreement (or the applicable Customer Order Form) for any reason.

7. PROPRIETARY RIGHTS.

• 7.1. Services and HCF Content. The Services (including the SaaS) and HCF Content, and all Intellectual Property Rights in and to them, are and shall remain owned by HCF (and its licensors, as applicable) and are protected by copyright, trademark, patent, trade secret and other laws and treaties. Subject to the terms and conditions of this Agreement, HCF hereby grants Customer and its Authorized Users a limited, personable, revocable, non-sublicensable and non-transferable license to access and use the functions and features of the SaaS and to reproduce and display HCF Content during the Subscription Term solely for the Authorized Purpose(s). Any derivative work Customer or its Authorized Users may create of any part of the SaaS or HCF Content, and all rights therein, shall be owned solely by HCF. To that end, Customer hereby irrevocably transfers and conveys to HCF, without further consideration, all right, title and interest that Customer or any Authorized User may have or acquire in any such derivative work and, upon HCF’s request, Customer shall perform, during and after the term of this Agreement, all acts that HCF reasonably deems necessary or desirable to permit and assist HCF, at its expense, to obtain, perfect, and enforce the full benefits, enjoyment, rights and title throughout the world in any such derivative works as provided herein.
• 7.2. User Content License. Customer hereby grants to HCF a non-exclusive, non-transferable right and license to access, use, host, copy, display, process, transmit, and deliver the User Content as necessary or convenient for HCF to comply with its obligations and exercise its rights under this Agreement.
• 7.3. Trademarks. If HCF agrees to create, at Customer’s request, any Customer-branded or co-branded user interfaces through which Authorized Users will access the SaaS, Customer hereby grants to HCF during the Subscription Term a non-exclusive, worldwide, royalty-free license to use and display the Customer’s name, logo and other trademarks (“Customer Trademarks”) designated by Customer on such user interface(s). In such event, HCF will use the relevant Customer Trademarks in accordance with Customer’s then-current trademark usage guidelines, if any, provided by Customer to HCF and only for the agreed purposes. Subject to the foregoing license, Customer will retain all Intellectual Property Rights that it may have in and to the Customer Trademarks, and all use thereof by HCF shall inure to the sole benefit of Customer.
• 7.4. HCF Content and Service Usage Data. As between HCF and Customer, HCF shall be and remain the sole owner of all HCF Content, as well as all data in de-identified form pertaining to usage of the Services.
• 7.5. Feedback. If HCF receives from Customer or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services or any other HCF products, offerings or services (“Feedback”), HCF may use, disclose and exploit such Feedback without restriction and without paying any royalties or other compensation, including to improve the Services and to develop, market, offer, sell and provide other products and services.
• 7.6. No Implied Licenses by HCF. Customer acknowledges that there are no licenses granted by HCF by implication under this Agreement. HCF reserves all rights that are not expressly granted herein. Customer acknowledges that, as between the Parties, HCF owns all Intellectual Property Rights and proprietary interests that are embodied in, or practiced by, the SaaS or other Services, with the exception of Intellectual Property Rights in or to Customer Data or to User Content that may be distributed through the SaaS.

8. GENERAL.

• 8.1. Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the Parties shall be governed by the internal laws of the State of New Jersey without regard to principles of conflicts of laws.
• 8.2. Force Majeure. Notwithstanding any other provision of this Agreement, no party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors. Customer acknowledges and agrees that the SaaS is a cloud application dependent upon Internet and third party data centers. The Customer waives all liability regarding damages involved from those Internet shutdowns or loss of User Content or other materials that might occur on the Public Internet outside the control of HCF.
• 8.3. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by a single arbitrator in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall bear its own costs, fees and expenses incurred in connection with the arbitration proceeding, including attorneys’ fees and expenses and witness costs and expenses. The arbitrator shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator between the parties in such amount as the arbitrator determines is appropriate. Arbitration shall take place in County of Bergen New Jersey unless the Parties mutually agree to another location. Notwithstanding the foregoing, a party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party’s rights or property. Any civil action seeking injunctive relief will be instituted and maintained exclusively in the federal or state courts sitting in the County of Bergen New Jersey.
• 8.4. Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for HCF and Customer shall be their respective addresses specified in the applicable Customer Order Form. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
• 8.5. Construction; Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or arbitrator by reason of such Party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
• 8.6. Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, then the Parties agree to replace it with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will remain in full force and effect.
• 8.7. Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either Party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
• 8.8. Entire Agreement; Amendments. This Agreement (including Customer Order Forms entered under it) constitutes the entire agreement between HCF and Customer with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing executed by the Parties’ duly authorized representatives.
• 8.9. Counterparts; Signatures. This Agreement may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. For purposes of this Agreement, a facsimile copy of a Party’s signature made by reliable means shall be sufficient to bind such Party.

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