1.1 These terms and conditions form part of the Agreement between Client and MedOne (as such terms are defined below). The Agreement governs MedOne’s provision and Client’s use of the Services. When MedOne accepts an Order a contract between MedOne and Client is formed. The terms and conditions of that contract are made up from the various documents that comprise the Agreement.
2.1 Capitalized terms used in these Terms and not otherwise defined have the following meanings:
Agreement means the agreement between Client and MedOne and comprises:
· these Terms. The Terms are mainly provisions of a legal nature.
· all applicable Orders. Each Order sets out Service specific information including volumes and charges.
· Third Party Software Terms. The Services may include software components licensed to MedOne by other companies and these companies require certain terms and conditions to be included in the Agreement
· the AUP. The Acceptable Use Policy prohibits certain types of activity e.g. hacking and spamming, and sets out general rules that apply to use of the Services.
· the Usage Pricing Terms. Prices and charges for the Services.
· Service Description. This document describes the features and functions of the Services.
· Service Level Terms. The performance and other metrics applicable to the Services.
Administrator means the single employee, agent or independent contractor authorized by Client to provision, manage and administer the Services.
API means an application programming interface made available by MedOne in connection with certain Services, including the technical and administrative specifications, standards, requirements, procedures and communication protocols promulgated by MedOne in connection with such application programming interface.
AUP means the Acceptable Use Policy that describes rights and obligations for use of the Services, located at https://cloud.med-1.com.
Authorized User means the Administrator or a Sub-Administrator, as applicable.
Business Day means any day on which banks in Israel are generally open for business, not including Friday.
Client means the entity ordering Services from MedOne, as identified in the applicable Order(s).
Client Application means software that the Client install on the Services for its use.
Client Content means the Client Applications and any other content, materials or data that Client uses, installs, uploads or hosts on the Services.
Confidential Information has the meaning given in Section 9.
Credentials mean a unique log in name and password specific to Client for Authorized Users to access and use the Services.
Dimension Data means Dimension Data Cloud Solutions Australia Pty and any of its affiliates, subsidiaries, officers, directors, employees and representatives.
Documentation means the developer guides, getting started guides, user guides, quick reference guides, and other documentation for the Services that MedOne provides to Client in the Welcome Pack or makes available via one or more web-based user interfaces.
Effective Date of an Order means the date that MedOne accepts the Order from the Client, as set forth in the applicable Order by the Client.
Excusing Event has the meaning given in the Service Level Terms.
Fees mean the fees payable by Client to MedOne for the Services, as described in Section 12and the applicable Order.
Geography means a geographic region in which one or more Locations from which Services are being provided are located. The Geographies for a Service are set out in the applicable Service Description.
Location means a physical location which MedOne offers provision of Services from, or in which MedOne maintains an MCP necessary to provide the Services.
Logo means the logo which appears on MedOne's user interface seen by Authorized Users, while accessing the Services.
Management Portal means a portal used by Authorized Users to allow Client to manage and administer certain Services on its own. Where applicable the URL for the Management Portal will be included in the Welcome Pack.
Marks means MedOne’s and any of its affiliates trademarks, whether used individually or collectively and whether registered or unregistered.
MCP means a managed cloud platform used by MedOne to provide Services to Client. An MCP consists of computing hardware and software resources including automation and orchestration tools.
MedOne means MedOne I.C.-1 (1999) Ltd. and any of its affiliates and subsidiaries.
MedOne Application means a software application that MedOne uploads, installs or hosts on the Services and that is available to Client.
MedOne Content means the Services, MedOne Applications, Logo and any other content, materials or data that MedOne installs uploads or hosts on MCP.
Minimum Commitment Plan means a Plan that includes a Minimum Commitment Term.
Minimum Commitment Term means a number of consecutive months for which Client commits to pay a minimum Fee to access and use Services, as indicated in the applicable Order.
Minimum Usage Commitment means the minimum Fee which Client commits to pay each month during the Minimum Commitment Term.
Optional Services means those optional services described in the Service Description for Optional Services (“SDOS”) located at https://cloud.med-1.com.
Order means an order for Services submitted by Client and accepted by MedOne.
Plan means a plan for MedOne’s provision of, and Client’s payment for, Services, as described in the applicable Order.
Public Software means open source software as that term is defined by the Open Source Initiative. Public Software includes software distributed under the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, or derivatives or similar licenses.
Services means the services (including any Optional Services) indicated in the applicable Order, in each case, provided by MedOne to Client as and more fully described in the applicable Service Description(s), for Client's internal use.
Service Commencement Date means the time indicated in the applicable Order from when MedOne will commence providing the Services being either: (i) a calendar date; or (ii) the occurrence of an event or completion of a milestone. Client is deemed to have access to the Services when MedOne sends to Client via email the Welcome Pack containing Credentials.
Service Description means the document setting out the features, functions, limitations and restrictions applicable to the Services.
Service Levels mean the service levels for a particular Service as set out in the Service Level Agreement (the “Service Level Terms”) attached hereto as Exhibit [B].
Service Level Credit means a percentage rebate from the Fees that Client may receive for a Service Level Failure, calculated as set out in the Service Level Terms.
Service Level Failure means, for a particular Service Level during a particular calendar month, a failure by MedOne to meet a Service Level during such calendar month (excluding any failure comprising or caused by an Excusing Event). A Service Level Failure may include an Incident if the particular Incident has a Service Level attached to it.
Software means the software (including the API) that MedOne makes available for Client’s use as part of the Services, including both MedOne’s software and Third Party Software.
Sub-Administrator means an employee, agent, independent contractor, automated application account of Client whom the Administrator authorizes to access and use the Services.
Terms means the terms and conditions in this Agreement.
Third Party Software means any third party software, including both proprietary third party software and Public Software, that MedOne uses or makes available to Client in connection with the Services.
Third Party Software Terms means the terms and conditions including end user license terms applicable to Client’s use of Third Party Software, as published by such third party.
Usage means Client’s monthly usage of Services, as measured in units of the currency set out in the applicable Order and as further described in the applicable order (“Usage Pricing Terms”).
Usage-Based Plan means a Plan under which Client pays for Services based on Client’s Usage.
User(s) has the meaning given in the Acceptable Use Policy.
Welcome Pack means the materials including Administrator’s Credentials and access instructions that MedOne provides to Client to allow Client to access the Services.
Grant of License
3.1 Subject to: (i) Client’s payment of all Fees; and (ii) the other terms and conditions of the Agreement, MedOne grants to Client a limited, non-exclusive, non-transferable, non-sublicenseable right and license during the term of each applicable Order for Client to access and use the Services as described in the applicable Service Description(s). This license includes the right to use the Documentation and APIs in connection with the Services. For the avoidance of any doubt, such license does not include the right to resell the Services to any third party.
3.2 Except as expressly permitted by the Agreement, Client will not and will ensure that Users do not:
(a) reproduce, download, frame, mirror, display, create derivative works from the Services or otherwise modify any Services;
(b) decompile, disassemble, or otherwise reverse engineer any Services;
(c) access or use any Services in order to build any competing product or service;
(d) license, sub-license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise make available any Services to any third party, or use any Services on a service bureau basis;
(e) access or use any Services in breach of the AUP or any law or regulation, including anti-spam laws and regulations;
(f) remove, obscure or alter any trademarks, brand names, or other proprietary notices appearing on or contained within any Services;
(g) use or access any Services other than as expressly permitted by the Agreement;
(h) interfere with or impede the functionality or proper working of any Services or the servers or networks used to make the Services available, or violate any requirements, procedures, policies or regulations of such networks.
3.3 Authorized Users may access the Services either through a web-based user interface or through Client’s own Client Application using the API. MedOne may modify and republish the API from time to time. Client must ensure that its Client Applications and systems are compatible with the then current API. Notwithstanding the foregoing, if MedOne removes or changes a material feature or function of the API, MedOne will use commercially reasonable efforts to maintain backwards compatibility with the previous version of the API for ten (10) months from the date of the change.
Third Party Software
3.4 The Services may include Third Party Software in which case the Third Party Software Terms will apply. Client acknowledges that it may be required to engage third party software vendors to license certain Third Party Software directly from them. This may include, but shall not be limited to, hypervisor technology licenses supplied by VMware under a service provider type -licensing program (“VSPP”)] If Client enters into a license agreement with such Third Party Software provider (“Third Party License Agreement”) to access or utilize any portion of the Services, then the Client will comply with, and will cause all Authorized Users to comply with, any Third Party License Agreement terms, conditions and requirements that are made available by the Third Party Software Provider, as may be amended from time to time. Client's use of Third Party Software will be governed by Third Party Software Terms. If there is any conflict or inconsistency between the Third Party Software Terms and the other documents comprising this Agreement with respect to Third Party Software then the Third Party Software Terms will prevail to the extent of the conflict or inconsistency.
3.5 Client acknowledges and agrees that although MedOne may provide information, including through the Documentation, relating to the technology licensed under any Third Party Software or the Third Party License Agreement, Client is solely responsible for ensuring its and its Authorized Users’ compliance with such terms, conditions and requirements. To clarify, Client is required to engage VMware within its territory under the VSPP program and comply with VMware’s corresponding license and other terms.
No Other Rights
3.6 As between the parties, MedOne or its affiliates, as applicable, is the sole and exclusive owner of all right, title and interest (including intellectual property rights) in and to the Services and the Software. Subject only to the specific licenses granted in this Agreement, MedOne expressly reserves all rights with respect to the Services and the Software. Client will not acquire or claim any right, title or interest (including intellectual property rights) in or to the Services or the Software, whether by implication, operation of law or otherwise.
3.7 Client's right of use the Services under this Agreement are personal and non-assignable, and Client will not sell any Services through a sales agent or to a sub-distributor or sub-reseller without the express written permission of MedOne.
Claims to be Made Against MedOne
3.8 Client undertakes to bring any and all claims arising out of or in connection with the Services or this Agreement against MedOne only, and not to claim against, sue or bring any legal proceedings against MedOne’s service providers including Dimension Data. Any claim made against Dimension Data by the Client will constitute a material breach of this Agreement by Client, and Client will be held responsible and shall fully indemnify MedOne for any for any damages, costs, expenses, judgments, settlement amounts, and other liabilities (including reasonable attorney’s fees and costs) finally awarded against MedOne by a court or tribunal of competent jurisdiction arising from Client's infringement of this Section 3.8.
4. Client's Responsibilities
4.1 Client must not:
(a) Use the Services for any other purpose other than its internal use;
(b) resell or license the Services to any third party;
(c)waive, alter or change any provision of the AUP and the Third Party Terms;
(d) incur any expense or obligation in the name of MedOne;
(e) use any Third Party Software not in accordance with its terms;
(f) disseminate any unauthorized material regarding the Services or MedOne’s business; or
(g) brand or co-brand the Services in any way.
4.2. Client will not infringe MedOne's and/or Dimension Data's rights in its Marks and will use the Marks only in accordance with the terms of this Agreement.
4.3. Any use of the Marks by Client must include an acknowledgment of the proprietary rights of MedOne to the Marks.
4.4. MedOne reserves the right to issue guidelines on the use of the Marks from time to time, and Client must comply with these guidelines. A failure to do so will constitute a material breach of the Agreement.
4.5. Client must not:
(a) alter, remove or conceal any Marks or copyright notices on any element of the Services at any time;
(b) modify or attempt to modify the Services without the prior written consent of MedOne;
(c) make any reference to MedOne in its publications without first obtaining MedOne's approval to the form and context of the reference, which approval will not be unreasonably withheld or delayed.
5. Client Applications
5.1 Client may install and host Client Applications on the Services. Client is solely responsible for: (i) ensuring that Client has the necessary rights, permissions and licenses to install and host the Client Applications on the Services; (ii) the acts and omissions of any users of the Client Applications; (iii) the functionality and operation of the Client Applications; and (iv) the support and maintenance arrangements for the Client Applications.
5.2 As between the parties, Client is the sole and exclusive owner of all right, title and interest (including intellectual property rights) in and to the Client Applications and other Client Content. Client grants to MedOne a limited, non-exclusive, non-transferable, non-sublicenseable right and license during the term of each applicable Order to host the Client Applications and other Client Content solely in connection with providing the Services and performing its other obligations under the Agreement.
6. Authorized User Accounts
6.1 In its first applicable Order for Services, Client will designate one (1) Administrator. The Administrator is authorized by Client to provision Services, order additional Services manage Client’s use of Services and appoint Sub-Administrators as set forth in clause 6.3below. Client may also automate the provisioning, ordering and management of Services through the API. Any and all actions, requests and orders made using an Administrator’s Credentials or through the API will be deemed to have been authorized by Client and Client will be responsible for the associated Fees.
6.2 The Administrator will be responsible for ensuring that former Authorized Users who are no longer authorized to access the Services do not access the Services.
6.3 The Administrator may designate one or more Sub-Administrators and allocate to them Credentials. Sub-Administrators may perform all acts of the Administrator other than appointing Sub-Administrators. Appointment of Sub-Administrators may constitute additional Usage and be subject to additional Fees as described in the Usage Pricing Terms.
6.4 Each Authorized User's Credentials may only be used by that Authorized User; a single set of Credentials may not be shared or used by more than one person. The Client will ensure that each Authorized User will keep his or her Credentials secure.
6.5 Client is responsible for the acts and omissions of Authorized Users, and to ensure that Authorized Users comply with the Agreement, including the AUP. Client will not permit persons other than Authorized Users to access the Services. Client is responsible for: (i) maintaining the confidentiality of Credentials and ensuring that Credentials are only used by Authorized Users; and (ii) the acts and omissions of Authorized Users and any person using Client’s Credentials. Client will notify MedOne promptly in writing if Client becomes aware of: (i) any loss, theft, or unauthorized use of any Credentials; or (ii) any breach of this Agreement by an Authorized User.
7. Service Levels and Maintenance
7.1 The Service Levels are in the Service Level Terms. Client will be entitled to Service Level Credits as set out in the Service Level Terms and Section 12.11. Failure to meet Service Levels is not a breach of the Agreement by MedOne and Service Level Credits are Client’s sole and exclusive remedy and MedOne’s sole and exclusive liability for MedOne’s failure to meet the Service Levels.
7.2 MedOne performs scheduled maintenance on the Services including maintenance related to the Software, MCP and other equipment and materials used for providing the Services. Occasionally MedOne may need to perform emergency or unscheduled maintenance. Maintenance activities may cause interruptions to the Services although MedOne will use reasonable efforts to inform Client in advance of any maintenance related Service interruptions and their likely duration.
8.1 The Terms set forth below shall have the following meanings:
Incident means a failure of the Services to conform with the applicable Service Description and includes an Emergency Incident and Other Incident.
Emergency Incident means an Incident that renders the Service inoperative or causes a complete failure to any type of Service and impacts any of the Clients.
Other Incident means any Incident other than an Emergency Incident.
Incident Correction means a bug fix, patch, or other modification or addition that brings the Services into conformity with the applicable Service Description.
Service Request means a request by Client to MedOne for Technical Support.
Support means Incident Correction and Technical Support.
Support Services Designee means an individual designated by the Client for the purpose of informing MedOne of any problem encountered by the Client, and which will be responsible for all communication with MedOne with respect to provision of Support by MedOne. Support Services Designee shall be designated in the Order which shall include his/hers contact details and its identity and/or contact details may be changed by the Client only upon notice to MedOne in accordance with the provisions of these Terms.
Technical Support means answering questions and providing information regarding the Services or their functionality, but not including Incident Correction.
Provision of Support
8.2The Support Services Designee shall submit Service Request to MedOne in which he/she will inform MedOne of any issue encountered during the use of the Services which requires the assistance of MedOne, and shall be MedOne's sole referee with respect to all matters regarding obtainment and provision of the required Support. MedOne will make efforts to resolve the issue and shall keep the Support Services Designee informed with respect to its progress. Service Requests to MedOne shall be submitted in the way and through the communications designated in the Order.
8.3When submitting a Service Request, Support Services Designee will provide MedOne's representatives with sufficient detail to enable them to: (i) classify the Incident or Service Request, and (ii) forward the Incident or Service Request to the appropriate technical support specialists. In the case of an Incident, Client will provide a detailed explanation of all the circumstances under which the Incident occurred or is occurring. MedOne will reasonably classify each call as an Emergency Incident, Other Incident or Service Request. If a call is misclassified initially, MedOne may reclassify it and respond accordingly, subject to providing Client a written notice. On each call, MedOne's representative will assign a unique ticket number to Client, which Client can use to track its request. Following receipt of Client’s Incident report or Service Request, MedOne will contact Client, via email or telephone to: (A) provide Client with information regarding the Incident or Service Request; and (B) collect any additional information from Client necessary or useful to facilitate Incident Correction or to respond to the Service Request.
9. Confidentiality and Data Security
9.1 “Confidential Information” means all information (whether in written, oral, electronic, or other form) that is disclosed or otherwise made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement that is appears to be confidential or proprietary by its nature. Confidential Information of MedOne includes any information regarding the Services, including the Software, Documentation, all pricing information and any other non-public portion of the Services. Confidential Information of Client includes all Client Content. These Terms and any Orders shall be deemed to be Confidential Information of both parties, and notwithstanding anything to the contrary in this Section 9, neither party shall disclose the terms of any such document to any third party, other than to its affiliates and their respective legal counsel and accountants, without the other party’s prior written consent. Confidential Information does not include information that: (i) is or becomes publicly known other than as a result of any wrongful action or inaction of the Receiving Party; (ii) was already known to the Receiving Party prior to receiving it from the Disclosing Party; (iii) is obtained by the Receiving Party from an unrelated third person without a duty of confidentiality owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
9.2 Subject to Section 9.3, the Receiving Party will not use Confidential Information of the Disclosing Party for any purpose other than to exercise its rights or perform its obligations under this Agreement. The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third persons except to its employees, consultants or contractors who have a need to know such Confidential Information and in the case of MedOne to Dimension Data, to exercise the Receiving Party’s rights or to perform the Receiving Party’s obligations under this Agreement and who are bound by confidentiality provisions (including provisions relating to non-use and nondisclosure) no less restrictive than those in this Agreement. The Receiving Party will protect the Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own information of a similar nature or sensitivity, but in any event with no less than reasonable care. The Receiving Party will promptly advise the Disclosing Party in writing of any unauthorized disclosure, misappropriation or misuse of the Disclosing Party’s Confidential Information of which the Receiving Party becomes aware.
9.3 This Agreement will not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, but, to the fullest extent permitted by law, the Receiving Party will promptly notify the Disclosing Party of such a required disclosure to allow intervention by the Disclosing Party (and will cooperate with the Disclosing Party) to contest or minimise the scope of the disclosure (including application for an injunction or similar protective order).
9.4 Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of the other party’s Confidential Information and that the other party will be entitled, without waiving any other rights or remedies, to seek injunctive or other equitable relief to protect its Confidential Information.
9.5 The Services allow customization by Client, including options to install third-party software, implement security controls, establish and enforce user access controls, and select the Location(s) in which Client Content will be stored. Client acknowledges that it is responsible for using the Services properly and for taking its own steps to maintain appropriate security, protection, and backup of Client Content, which may include: (i) the use of encryption technology to protect Client Content from unauthorized access; and (ii) routine back-up and archiving of Client Content. Client is responsible for selecting the Location(s) in which Client Content will be hosted and Client will comply with all applicable laws with respect to Client Content and its use of the Services. MedOne uses reasonable security standards to protect the physical security of the data centers used to maintain Client Content but MedOne is not responsible for and assumes no liability related to the foregoing Client obligations.
Client will comply with applicable laws with respect to the use of the Services. MedOne is not responsible for and assumes no liability related to the forgoing Client obligation.
9.6 Subject to Section 9.7, Client acknowledges that the Services operate in such a way as to not permit MedOne to access Client Content and MedOne has no ability to manipulate, modify or control Client Content.
9.7 Where Client requests support from MedOne that requires access to Client Content, Client may be required to issue temporary Credentials to MedOne to permit such access to Client Content. To the extent Client grants MedOne access to Client Content, MedOne agrees to:
(a) access and use the Client Content solely for the purpose of providing Services to Client;
(b) maintain physical, technical, and administrative safeguards to protect the Client Content against unauthorized access, use, or disclosure while it is accessible by MedOne; and
(c) not disclose the Client Content to any third party, except: (i) to its employees, consultants contractors or Dimension Data for purposes of providing Services to Client, provided that such recipients are bound by confidentiality provisions no less restrictive than those set out in this Agreement; and (ii) to the extent required by a judicial order or other legal obligation, provided that, to the fullest extent permitted by law, MedOne will promptly notify the Client of such a required disclosure to allow intervention by the Client (and will cooperate with the Client) to contest or minimize the scope of the disclosure.
9.8 Client agrees that unless backup services are included in the applicable Order as part of Optional Services, MedOne will not create, maintain or implement backups of any Client Content and that Client is solely responsible for all backup, archiving and data retention of Client Content.
10. Representations and Warranties
10.1 Each party represents and warrants to the other that:
(a) it has the full power and authority to enter in and perform this Agreement and that the execution and delivery of this Agreement has been duly authorized;
(b) it will comply with all applicable laws, rules, regulations and ordinances in the performance of this Agreement; and
(c) its performance of this Agreement does not put it in breach of any other agreement.
10.2 MedOne represents and warrants to Client that it will perform the Services materially in accordance with the applicable Service Description(s).
Third Party Software
10.3 MedOne will pass on to Client the benefit of any warranties and indemnities it receives under the Third Party Software Terms to the extent MedOne has the right to do so. Otherwise MedOne makes no, and expressly disclaims all, representations and warranties with respect to Third Party Software and Client’s use of Third Party Software is at Client’s sole risk.
10.4 EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET OUT ABOVE, THE SERVICES AND ANY OTHER INFORMATION, TECHNOLOGY, CONTENT AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MEDONE DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL, OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. WITHOUT LIMITATION OF THE FOREGOING, MEDONE DOES NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ADVICE, RESULTS OR INFORMATION OBTAINED BY CLIENT FROM MEDONE OR THROUGH ANY SERVICES, ANY DOCUMENTATION, OR THE COMMUNITY FORUM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT. IN ADDITION, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.3ABOVE, MEDONE MAKES NO, AND EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS, CONDITIONS AND WARRANTIES REGARDING THIRD PARTY SOFTWARE, AND THE ONLY REPRESENTATIONS, CONDITIONS AND WARRANTIES WITH RESPECT TO THIRD PARTY SOFTWARE ARE THOSE THAT ARE MADE BY THE APPLICABLE THIRD PARTY LICENSORS AND SET FORTH IN THE THIRD PARTY TERMS.
11.1 Subject to clause 13below, MedOne will defend Client from any third party claim, suit, action or proceeding, and will pay all related damages, costs, expenses, judgments, settlement amounts, and other liabilities (including reasonable attorney’s fees and costs) finally awarded against Client (i.e., by a non appealable decision) by a court or tribunal of competent jurisdiction, arising from any allegation that the Services, when used as authorized by the Agreement, in the form provided by MedOne, infringe, misappropriate or violate any copyright, patent, trade secret, trademark or other intellectual property rights of a third party. If Client seeks indemnification under this Section, it must:
(a) provide MedOne with prompt notice of the claim;
(b) give MedOne sole control of the defense and related settlement negotiations; and
(c) reasonably cooperate with MedOne, at MedOne’s expense, in defending or settling the claim.
11.2 Notwithstanding the foregoing, Client may participate with MedOne in (but not control) the claim using counsel of its choice at its own expense, and MedOne will not enter into any settlement or other compromise of the claim that materially affects Client without Client’s written approval, which approval will not be unreasonably withheld, delayed, or conditioned.
11.3 Client will defend MedOne from any third party claim, suit, action or proceeding, and will pay all related damages, costs, expenses, judgments, settlement amounts, and other liabilities (including reasonable attorney’s fees and costs) finally awarded against MedOne by a court or tribunal of competent jurisdiction arising from:
(a) any violation (or alleged violation) of applicable law by Client.
(b) any allegation that any Client Content infringes, misappropriates or violates any copyright, patent, trade secret, trademark or other intellectual property rights of a third party;
(c) any disputes with third party licensors or providers of any Client Content;
(d) any acts or omissions of Authorized Users, including any breach of the license restrictions set out in Section 3.2; or
(e) any claim made by Client which infringes Client's obligations set forth in Section 3.8above.
If MedOne seeks indemnification under this Section, it must:
(a) provide Client with prompt notice of the claim;
(b) give Client sole control of the defense and related settlement negotiations; and
(c) reasonably cooperate with Client, at Client’s expense, in defending or settling the claim.
Notwithstanding the foregoing, MedOne may participate with Client in (but not control) the claim using counsel of its choice at its own expense, and Client will not enter into any settlement or other compromise of the claim that materially affects MedOne without MedOne’s written approval, which approval will not be unreasonably withheld, delayed, or conditioned.
11.4 MedOne will have no obligation to Client under this Section 11with respect to:
(a) any modification of the Services by anyone other than MedOne;
(b) Third Party Software;
(c) any combination of the Services with any Client Content or other software, hardware, network, infrastructure, or other materials not provided by MedOne if the claim would not have arisen but for such combination;
(d) use of the Services other than as permitted by the Agreement or contrary to the applicable Service Description(s); or
(e) Client’s continued use of the Services after notice of an alleged or actual infringement.
11.5 If the Services are the subject of an infringement claim (or MedOne reasonably believes that such a claim is likely), then MedOne may at its option and expense:
(a) procure for Client the right to continue to use the Services;
(b) modify the Services to be non-infringing or provide non-infringing substitutes with substantially similar functionality; or
(c) if MedOne cannot accomplish (a) or (b) using commercially reasonable efforts, terminate the Services and refund to Client the unused portion of any Fees paid in advance for the affected Services.
12. Fees and Payments
12.1 Client will pay the Fees to MedOne.
12.2 Unless otherwise specified in the applicable Order Client will make all payments within 30 days as of end of the month in which the invoice was furnished to Client.
12.3 All other terms of payment shall be as set forth in the Order.
Payment and Taxes
12.4 Any Client-specific payment terms, including currency, dates and manner of payment, interest rates on late payment, and taxes, will be described in the applicable Order.
12.5 MedOne may charge Client additional Fees on a time and materials basis at MedOne’s then-current rates for any of the following: (i) Re-establishment (whether following suspension under Section 14 or otherwise) or other assistance requested by Client outside the scope of the applicable Order; or (ii) provision of Support to Client if MedOne determines that Client’s request was not related to an Incident.
12.6 These Fees will be invoiced to Client in the month following the month in which they accrue.
Unforeseen Fee Increase
12.7 Notwithstanding anything to the contrary in this Agreement, MedOne may increase the Fees if the costs or charges incurred by MedOne for electricity, communication, or Third Party Software materially increase. MedOne will promptly notify Client in writing of any such increase which will take effect on the last day of the calendar month immediately following the date of the notice. If Client does not agree to the increase, Client has the option to terminate on thirty (30) days’ written notice the Order(s) affected by the increase. This termination right may only be exercised during the sixty (60) day period commencing from the date of the notice and failure by Client to terminate constitutes acceptance by Client of the Fee increase.
Other Payment Terms
12.8 MedOne may apply any payment received from Client under any Order towards any amounts that Client owes to MedOne under this Agreement or otherwise. Client gives MedOne permission to provide any registered credit bureau with information about the payment of amounts Client makes under this Agreement.
12.9 Subject to Section 12.12, Client may not withhold payment of any amount due to MedOne for any reason.
12.10 If Client disputes any part of an invoice on genuine grounds, Client must pay the undisputed part of the invoice before the due date.
Service Level Credits
12.11 Service Level Credits will be applied towards Fees as described in this Section.
MedOne will provide Client with a report within seven days after the last day of each month detailing (a) each Service Level Failure that occurred during the preceding month and (b) any Service Level Credit associated with that Service Level Failure (“Service Level Failure Report”). Client will review the Service Level Failure Report and notify MedOne in writing within seven days of receipt of the Service Level Failure Report if Client (i) disputes the accuracy of the Service Level Failure Report or (ii) if of the view that a Service Level Failure has been omitted from the Service Level Failure Report (“Service Level Report Dispute”). In the notice Client will specify the particular details around the Service Level Report Dispute and the reasons for the Service Level Report Dispute. MedOne will apply all undisputed Service Level Credits to Client’s invoice for the calendar month following the calendar month. The parties will meet within a further seven days and negotiate in good faith to attempt to resolve all the disputed items in the Service Level Failure Report Dispute. If the parties are unable to resolve the disputed items in the Service Level Failure Report Dispute, then either party may proceed with any remedy available.
All invoices to which any Service Level Credit is to be applied by MedOne is called the “Service Level Credit Invoice.”
Service Level Credits may only be redeemed against the applicable Service Level Credit Invoice, and will not be redeemable against any other invoices unless otherwise agreed by MedOne in its sole discretion. Following any expiration or termination of the applicable Order, each unused Service Level Credit (i.e., each Service Level Credit that has not been applied to a Client invoice) will be treated as follows: (i) if the Order expired in accordance with its terms, then Client will be entitled to apply such unused Service Level Credit against purchases of Services by Service Provider during the 12 months following the month during which the Service Level Credit was incurred; and (ii) if Client terminated the Order for MedOne’s breach in accordance with these Terms, then MedOne will pay the Service Level Credit to Client. Any Service Level Credits not requested or not redeemed by Client as set forth herein will automatically expire. Except as expressly stated herein, in no event will Service Level Credits be redeemable for cash.
In order to be eligible for Service Level Credits, Client must be current on all undisputed outstanding invoices both at the time such Service Level Credits would otherwise have accrued and at the time such Service Level Credits would otherwise be payable hereunder.
13. Limitation of Liability
13.1 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR CLIENT’S OBLIGATIONS UNDER SECTION 11(INDEMNIFICATION) OR CLIENT’S BREACH OF SECTION 3.2, OR ANY PARTY’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION, PERSONAL INJURY OR DEATH DUE TO ITS NEGLIGENCE, TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW :
(a) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, OR LOSS OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND
(b) IN NO EVENT WILL MEDONE'S MAXIMUM AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
(c) ALL THE ABOVE LIMITATIONS OF LIABILITY ARE CUMULATIVE AND NOT PER INCIDENT.
14.1 MedOne reserves the right to suspend or restrict Client’s or any User’s access to and use of the Services if:
(a) Client or any Authorized User breaches this Agreement, including by violating the AUP;
(b) Client or any Authorized User fails to cooperate with any reasonable investigation by MedOne of a suspected breach of this Agreement;
(c) MedOne reasonably determines that suspension is necessary to prevent or mitigate damage or disruption to MedOne’s systems or networks;
(d) Client fails to pay any Fees when due;
(e) there is an unusual spike or increase in Client’s use of the Services that impacts MedOne’s ability to deliver the Services;
(f) as the result of any Excusing Event; or
(g) if Dimension Data suspends the provision of services to MedOne in a manner that would cause MedOne to suspend the Services provided to the Client (collectively “Service Suspensions”).
MedOne will use commercially reasonable efforts to provide: (i) prior notice of a Service Suspension; and (ii) updates regarding resumption of Services following a Service Suspension.
14.2 Client Content stored on the Services may be unavailable during a Service Suspension. Without limiting Section 13, MedOne will have no liability for any damages, liabilities, or losses resulting from a Service Suspension.
15. Term and Termination
15.1 This Agreement commences on the Effective Date of Client’s first Order and, unless terminated earlier, continues until the last expiration or termination date of any of Client’s Orders. The initial term of each Order will be stated in the Order. Subject to the terms of the applicable Order, each Order with a Minimum Commitment Plan will automatically renew for an additional twelve (12) month period (each a “Renewal Term”) upon expiration of the initial term or the then-current Renewal Term, unless either party provides written notice of termination at least 90 days prior to the expiration date of the Order.
15.2 Either party may terminate this Agreement or any or all Orders by notice to the other party, for any reason or no reason, with termination to be effective (i) no later than seven (7) days following such notice for Usage-Based Plans or (ii) at the end of the Minimum Commitment Term, as determined by Section 15.1, for Orders with Minimum Commitment Plans.
15.3 Clients who are not committed under any Minimum Commitment Plan may terminate this Agreement at any time, upon two (2) Business Days prior written notice to MedOne, at any time, provided that if the Client has ordered Services under a Usage Based Plan, the fees due by it shall be calculated accordingly.
Termination for Cause
15.4 Either party may terminate this Agreement (and all Orders) or any individual Order upon notice to the other party if the other party materially breaches any term or condition of this Agreement or any Order and fails to correct such breach within fifteen (15) days following notice specifying such breach. Without limitation, Client’s failure to pay Fees on time and Client’s (or any User’s) noncompliance with Section 4.2 will constitute material breaches. In addition, MedOne may immediately terminate any Order or particular Services under an Order by notice to Client if continuing to provide the applicable Services to Client becomes infeasible as the result of a Force Majeure Event.
15.5 Without limiting the generality of the aforesaid in Section 15.4above, the Client hereby acknowledges that MedOne may terminate this Agreement immediately upon the request of Dimension Data as a result of Client breaching the terms of this Agreement. Also, MedOne may terminate this Agreement in the event that its agreement with Dimension Data will terminate, upon 60 days prior notice.
15.6 In addition to the aforesaid, either party will be entitled to terminate this Agreement if:
(a) a party has executed an assignment for the benefit of creditors or filed for relief under any applicable insolvency, bankruptcy, reorganization, moratorium or similar debtor relief laws for a period of 90 days as of the commence of such procedures;
(b) a receiver, administrator or liquidator has been appointed in respect of a party or a material portion of its assets or properties, and nomination was not removed for a period of 90 days;
(c) an involuntary petition in bankruptcy (or for the appointment of a receiver, administrator, examiner, liquidator, provisional liquidator, trustee or similar officer) has been filed against a party or any other insolvency or bankruptcy proceeding has been commenced against a party, which petition or proceeding has not been dismissed, vacated or stayed within 90 days; or
(d) a party commences a process of liquidation, dissolution or winding-up, and such process was not cancelled during a period of 90 days after it was commenced.
Effect of Termination
15.7 Upon expiration or termination of this Agreement or any Order :
(a) MedOne will cease providing the applicable Services and Client’s rights and licenses granted under this Agreement with respect to those Services will immediately terminate;
(b) all outstanding invoices will become immediately due and payable;
(c) the remainder of all monthly Fees for the remaining Minimum Commit Term (if applicable) will become immediately due and payable (termination by Client due to MedOne’s breach excepted); and
(d) MedOne will not be required to maintain or store, and may delete, Client Content hosted or stored in connection with the terminated Services, unless otherwise agreed in the applicable Order.
15.8 Either party’s termination of this Agreement or any Order will be without prejudice to any other remedies that it may have at law or otherwise, and will not relieve either party of breaches occurring prior to the effective date of termination. The following Sections of these Terms will continue and survive after any expiration or termination: Sections 2, 3.2, 3.4, 3.5, 3.6, 9, 10.4, 11, 12, 13, 15.7, and 16.
16.1 If any provision of this Agreement is found to be invalid or unenforceable by a court or tribunal of competent jurisdiction but would be enforceable if some part of the provision were deleted, the provision in question will apply with such modification to make it valid and enforceable.
16.2 This Agreement and any dispute arising out of or in connection with it will be governed by the laws of the state of Israel, with exclusive jurisdiction to the competent courts of the Israel Central District, without giving effect to any choice of law rules.
16.3 Any notice, request, demand or other communication required or permitted by these Terms will:
(a) be in writing;
(b) reference this Agreement and the applicable Order; and
(c) be directed to the recipient’s address or email address (or facsimile number if applicable) specified in the applicable Order by prepaid registered post, hand delivery, or facsimile, and will be deemed to be properly given when received. In addition, MedOne may provide general notices related to the Services (including updates to these Terms, the Service Descriptions and the Service Level Terms), and the parties may communicate regarding support-related issues via the Community Forum and the Global Service Centre.
16.4 Neither party may assign, delegate or otherwise transfer, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, except that:
(a) MedOne may assign this Agreement without the prior written consent of Client to an affiliate or in connection with a merger, consolidation, or sale of all or a portion of MedOne’s assets or business; and
(b) MedOne may have any of the Services performed on its behalf by its affiliates or other third parties.
16.5 Subject to the foregoing, the rights and liabilities of the parties are binding on, and will inure to the benefit of, the parties and their respective successors and permitted assigns. Any attempted assignment, delegation or other transfer except in accordance with this Section will be ineffective.
Right to Reference
16.6 Unless Client advises MedOne otherwise in writing, Client consents to MedOne using its name in any of MedOne’s marketing, sales materials, press releases, public announcements and case studies.
16.7 Any waiver by either party of a breach of or a default under any provision of this Agreement must be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have under the Agreement operate as a waiver of any right or remedy.
16.8 If Client provides suggestions for changes or improvements or other feedback (“Feedback”) about the Services or any of MedOne’s other products or services, MedOne may use such suggestions and feedback for any purpose without obligation or payment of any consideration and Client assigns to MedOne all right, title and interest (including intellectual property rights) in and to the Feedback.
16.9 Except for the payment of Fees, neither party will be liable to the other for failure or delay in performing its obligations under the Agreement if such failure or delay is due to circumstances beyond its reasonable control, including acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, interruption of or delay in telecommunications or third party services, unanticipated product development problems, or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services (each, a “Force Majeure Event”).
Relationship of the Parties
16.10 Nothing contained in this Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
No Third Party Beneficiaries
16.11 Nothing in this Agreement, express or implied, confers or is intended to confer on, any person other than the parties and the respective successors or permitted assigns of the parties and Dimension Data, any rights, remedies, obligations or liabilities.
Changes to the Terms
16.12 Subject to Section 16.14, MedOne may change these Terms from time to time including when required by law or governmental entities (such change being a “Regulatory Change”). MedOne will provide notice to Client of changes. Client’s continued use of the Services following a change will be deemed acceptance by Client of the change provided that any material change to these Terms will not apply retrospectively to a claim or dispute between Client and MedOne in connection with these Terms that arose prior to the date of the change.
16.13 If Client is using Services under an Order with a Minimum Commitment Term, then Client may, on giving MedOne notice within ten (10) days of the applicable change, elect not to have the change apply and to continue to use the Services for the remainder of the Minimum Commitment Term under the previously existing Terms.
16.14 If an ambiguity or question of interpretation arises the Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof based on authorship will arise favoring one party over the other. Client waives any claims or defenses regarding the validity or enforceability of this Agreement arising from the fact of electronic submission or presentation of the Agreement to Client.
Entire Agreement and Precedence
16.15 This Agreement is the entire agreement of the parties on the subject matter and supersedes any previous understanding or agreements. Except as otherwise provided with respect to updating of certain terms by MedOne, no modifications, additions, or amendments to this Agreement will be effective unless set out in a writing referencing this Agreement and signed by a duly authorized representative of each Party.
16.16 If there is any conflict or inconsistency between these Terms and the terms in any other document that forms the Agreement then:
(a) the terms in an Order will take precedence and resolve the conflict or inconsistency solely with respect to the specific variable terms included in the Order concerning pricing, payment, term, termination, or specific Services ordered; and
(b) these Terms will take precedence with respect to all other matters.
16.17 Headings are inserted for reference purposes only and do not affect the interpretation of the Agreement.
16.18 For the purposes of interpreting this Agreement unless the context otherwise requires:
(a) the singular includes the plural, and the plural includes the singular;
(b) the words “include” and “including” will not be construed as terms of limitation, and will mean “including without limitation”;
(c) the words “writing” or “written” mean reduced to writing whether in electronic or hard copy form;
(d) references to the parties will refer to their permitted successors and assigns;
(e) references to any agreement, instrument or statute mean that agreement, instrument or statute as amended from time to time; and
(f) references to documentation or materials provided by MedOne or a document comprising the Agreement mean that material or document as amended by MedOne from time to time.