SOFTWARE AS A SERVICE (SaaS) AGREEMENT
SOFTWARE AS A SERVICE (SaaS) AGREEMENT
This SOFTWARE AS A SERVICE (SaaS) AGREEMENT (“Agreement”) is made and provided as is, on this 1st day of November, 2021 (“Effective Date”) by and between Aurora Select Technologies INC. and Its’s contractually signed customers, and its affiliates. This agreement also describes the terms under which Aurora Select Technologies INC. will Provide certain software, services, online tools, marketing data, and marketing material to its contractually signed customers. Aurora Select Technologies will reserve the right to hold full ownership of all intellectual content. In consideration of the covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the terms and conditions contained in this Software as a Service (SaaS) Agreement.
1.GENERAL
1.1 Definitions. Capitalized terms used herein shall have the meanings ascribed to them in the body of this Agreement and/or in the Order Schedules, Exhibits and other documents attached hereto, or not, defined below. Terms other than those defined herein shall be given their plain English meaning, and those terms known in the information technology industry shall be interpreted in accordance with their generally known meanings. Unless the context otherwise requires, words importing the singular include the plural and vice-versa.
1.1.1 “Affiliate” means any entity controlling or controlled by or under common control with a Party, at the time of execution of the Agreement and for the duration of the agreement, where “control” is defined as (a) the ownership of at least fifty percent (50%) of the equity or beneficial interest of such entity, or (b) any other entity with respect to which such Party has significant management or operational responsibility in the business. (eventhough such Party may own less than fifty percent (50%) of the equity of such entity).
1.1.2 “Authorized User(s)” means with respect to the Services (other than the publicly available portal) any individual who is at least 18 years of age, and eligible to receive such services, websites under the definition the local law, in each case solely to the extent that with respect to such person there is an effective Order Schedule for such person’s access to the Services. Individuals accessing the publicly available portal shall be Authorized Users solely with respect to such access of the publicly available portal. For all purposes related to this Agreement, including all schedules, attachments, exhibits, manual(s), notices and communications related to this Agreement, the term “Covered Individual” may be used interchangeably with the terms insured, Member or Enrollee, and the meaning of each is synonymous with any such other.
1.1.4 “PIPA, PIPEDA Requirements” means those requirements with which Contractually Signed Customer and its affiliates must comply pursuant to their license agreements with Aurora Select Technologies INC. These requirements include but are not limited to: (a) the requirements established by the PERSONAL INFORMATION PROTECTION ACT (“PIPA”) and The Personal Information Protection and Electronic Documents Act (PIPEDA), governing access to and use of the Data and, as applicable, and (b) co-branding requirements pertaining to the use of trade names and marks, to the extent applicable to the Services. The PIPA and PIPEDA Requirements identified as of the effective date of this Agreement. Aurora Select Technologies INC. acknowledges the obligations of Contractually Signed Customer and its affiliates to comply with all applicable PIPA and PIPEDA requirements, which Software as a Service (SaaS) Agreement shall follow.
compliance is the customer’s responsibility, and all signed parties agree to cooperate with Aurora Select Technologies INC. in ensuring such compliance. Within thirty (30) days from notice unless the Parties mutually agree to a different timeframe, Aurora Select Technologies INC. agrees to comply with PIPA and PIPEDA Requirements issued after the Effective Date and agrees to perform remediation if Contractually Signed Customer determines Aurora Select Technologies INC. is noncompliant with applicable PIPA and PIPEDA Requirements, provided Contractually Signed Customer explains what specific rule necessitates a change and/or remediation upon each such notice.
1.1.1 “Collaboration Agreement” shall mean that certain Reference Based Benefits Collaboration Agreement entered into by the Parties if any, including all amendments thereto.
1.1.2 “Confidential information” has the meaning ascribed in Section 9.2.
1.1.3 “Covered Service” means a Service, Process or certain Software procedure, or Business Promise that is covered under a yearly agreement plan owned and administered by an Aurora Select Technologies INC. group of companies.
1.1.4 “Documentation” shall mean all descriptions, instructions or other materials that are incorporated into this Agreement during the Term which describe the specifications, operation, functionality or other information regarding the Aurora Select Technologies INC. System or Subscription Service.
1.1.5 “Exhibit” or “Exhibits” shall include, when applicable, the Business Associate Agreement (BAA), Legal Business Name, Number, Information and/or any other exhibits attached hereto.
1.1.6 “Force Majeure Event” has the meaning ascribed in Section 18.8 below.
1.1.7 “PIPEDA” The Personal Information Protection and Electronic Documents Act (PIPEDA).
1.1.8 “Intellectual Property” means all concepts, inventions (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, publicity rights, names, likenesses, know-how, ideas (whether or not protected under trade secret laws) and all other subject matter protected under patent (or which is not patented, but is subject matter that is protected under patent law), copyright, mask work, trademark, trade secret, or other laws, whether existing now or in the future, whether statutory or common law, in any jurisdiction in the world, for all media now known or later developed, including all new or useful art, combinations, discoveries, formulae, algorithms, specifications, manufacturing techniques, hosting platform, suggested and created domain names, technical developments, systems, computer architecture, artwork, software, programming, applets, scripts, designs, business email platforms, processes and methods of doing business.
1.1.9 “Jointly Developed Product(s)” shall mean any product that originally existed prior to the signed agreement by both Parties, and/or was ported in to Aurora Select Technologies INC. for the purpose of administration and control, for the duration of the support contract.
1.1.10 “Order Schedule” shall mean any order document, Statement of Work, Service Order Form or purchase order executed by the Parties noting the Subscription Service and/or types of Services Aurora Select Technologies INC. shall provide and corresponding pricing. Each Order Schedule will incorporate and accept this terms of the Agreement.
1.1.11 “Party” means Contractually Signed Customer or Aurora Select Technologies INC.; “Parties” means Contractually Signed Customer and Aurora Select Technologies INC..
1.1.12 “Aurora Select Technologies INC. System” means the software, hardware, middle ware, servers, or any other item operated by or behalf of Aurora Select Technologies INC., and communications connectivity used in conjunction with the foregoing.
1.1.13 “Services” means the services to be provided by Aurora Select Technologies INC. under this Agreement and any Order Schedule including, without limitation, access to, and use of, the Subscription Services, technical support and training.
1.1.14 “Service Levels” means those requirements set forth to access services offered.
1.1.15 “Subscription Service” shall mean the online services, computer applications, associated user interfaces, help resources, and any related technology to be made available by Aurora Select Technologies INC. via the Aurora Select Technologies INC. System and the Internet that are specified on any Order Schedule to this Agreement, together with all security devices, and any proprietary third party software that is provided as part of or that accompanies the Subscription Service.
1.1.16 “Customer Data” means the data that Contractually Signed Customer agrees to release to Aurora Select Technologies INC. as needed to provide the Services and which shall consist of the types of data outlined in the applicable Order Schedule.
1.2 The definitions contained in this Agreement shall apply to each Exhibit or Order Schedule.
1.3 Interpretation. The use of the terms “including,” “include” or “includes” shall in all cases herein mean “including without limitation,” “include without limitation” or “includes without limitation,” respectively.
1.4 Number and Gender. Words importing the singular include the plural and words importing the masculine include the feminine and vice versa where the context so requires.
1.5 No Primary Drafter. The Parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such Party or its professional advisor was the drafter, but shall be construed according to the intent of the Parties as evidenced by the entire Agreement.
1.6 Benefits of this Agreement. All rights and benefits granted hereunder to any contractually signed customer, may be exercised and enjoyed, and all such rights and benefits (including without limitation, all licenses granted by Aurora Select Technologies INC. hereunder) shall be deemed to be granted unless, the contractually signed customer refuses payments without 30 days written notice in advanced. Further, for purposes of service availability Aurora Select Technologies will reserve the right to Terminate Agreement and Suspend Services following 60 days non-payment to mitigate business losses without further notice.
2.SUBSCRIPTION RIGHTS
2.1 Aurora Select Technologies INC. hereby grants Contractually Signed Customer and its Affiliates and their Authorized Users, solely to the extent of accessing promised business services by, a subscription to access that portion of the Aurora Select Technologies INC. Systems. Aurora Select Technologies INC. acknowledges and agrees that (i) the Aurora Select Technologies INC. System and Subscription Service may be accessed and used by the number of users, on the number of computers or equipment, and/or at the number of sites, for the term and limited to the functionality set forth in the applicable Support Contract, as well any other computers owned, leased or otherwise used by Contractually Signed Customer or its Affiliates, agents, contractors, consultants, suppliers, customers and third-party service providers May be authorized to exercise limited access. Services provided to Contractually Signed Customer and its Affiliates are subject to (Cooperation With and Access by Third Parties); (iii) the Aurora Select Technologies INC. System and Subscription Service may be used for Contractually Signed Customer’s and Contractually Signed Customer Affiliates’ normal business purposes solely accessing promised business services with limited access.
2.2 Service Levels. Aurora Select Technologies INC. shall provide Subscription Services to Contractually Signed Customer in accordance with the terms set on Support Contract.
3.IMPLEMENTATION; ACCEPTANCE TESTING
3.1 Implementation. A Preliminary Implementation Plan has been developed by the Parties prior to the Effective Usable Date hereof. A comprehensive Detailed Implementation Plan for implementation of the Aurora Select Technologies INC. System (together with the Preliminary Implementation plan to be referred to collectively as the “Implementation Workplan”) shall be prepared by Aurora Select Technologies INC. and approved by Contractually Signed Customer
3.2 Acceptance Testing for Aurora Select Technologies INC. System and Subscription Services. Unless otherwise specifically indicated herein, Contractually Signed Customer shall have thirty (30) days (the “Acceptance Period”) after receipt of Aurora Select Technologies INC.’s notice that Contractually Signed Customer has access to the Aurora Select Technologies INC. System to test, review and evaluate the Aurora Select Technologies INC. Systems and Subscription Services (“Acceptance”) for compatibility with Contractually Signed Customer’s relevant infrastructure and for conformance with the (a) published specifications; (b) Subscription Service; and (c) operational requirements. During the Acceptance Period, Contractually Signed Customer shall provide Aurora Select Technologies INC. with either written notice of acceptance or, written notice of rejection, which shall specify, in reasonable detail, the reason(s) why the Subscription Service fails to meet the applicable specifications.
Failure to supply any such notice of rejection, Aurora Select Technologies INC. shall exercise commercially reasonable efforts to correct the deficiencies at no cost to Contractually Signed Customer, and to provide Contractually Signed Customer with limited access to the modified Aurora Select Technologies INC. System and Subscription Service as soon as practicable, but not to exceed sixty five (65)) days from Contractually Signed Customer’s notice.
Commencing upon Aurora Select Technologies INC.’s provision of the modified Subscription Service, Contractually Signed Customer shall have twenty (20) days to test, review and evaluate such modifications. If Contractually Signed Customer does not furnish any written notice of acceptance or non-acceptance to Aurora Select Technologies INC. as required above, prior to the End of Support Contract Period, then Aurora Select Technologies INC. will reserve the right to allow expiration of Support Contract without further modification. If after repeating the process set forth in the preceding sentences three times Aurora Select Technologies INC. has not corrected all material deficiencies, as determined in Contractually Signed Customer’s reasonable good faith discretion, , Contractually Signed Customer may terminate this Agreement immediately, and will relinquish its rights of use.
4.TRAINING, SUPPORT AND COOPERATION
4.1 Training. Aurora Select Technologies INC. will provide Contractually Signed Customer and its Affiliates and its and their employees that primarily perform functions in the sales, account management and/or service operations functions) with training on the Core Transparency Service. The training will consist of Aurora Select Technologies INC. providing such employees with “train-the-trainer” type of training with respect to the functions, features, operation of the Core Transparency Service, which training may be provided via webinar or other remote means. Upon mutual agreement of the Parties, such training will include attendance by individuals at Aurora Select Technologies INC.’s internal training programs located at Burnaby office.
4.2 Support. Aurora Select Technologies INC. shall provide Contractually Signed Customer and its Authorized Users technical support regarding the use of the Aurora Select Technologies INC. System and the Subscription Service. Such support shall be as described in the applicable Order and as further described in the Service Levels. Aurora Select Technologies INC. also will provide to Contractually Signed Customer any revisions to the existing Documentation necessary to reflect the foregoing.
4.3 Cooperation with and Access by Third Parties. Contractually Signed Customer may from time to time hire outsourcers, subcontractors, consultants, or other third Parties (“Contractually Signed Customer Third-Party Contractors”) to perform services or provide products relating to Contractually Signed Customer’s business or the business of an Contractually Signed Customer Affiliate. Such services and products provided by Contractually Signed Customer Third-Party Contractors, may be integrated with the Services or Aurora Select Technologies INC. Materials provided by Aurora Select Technologies INC. hereunder (an “Integrated Project”) upon Aurora Select Technologies INC.’s prior written consent, which may be via email and which shall not be unreasonably withheld. Aurora Select Technologies INC. shall cooperate with and work in good faith with any Contractually Signed Customer Third-Party Contractor(s) as requested by Contractually Signed Customer. Such cooperation may include knowledge sharing of standards, policies, quality assurance and testing processes, as applicable, to ensure smooth deployment of Integrated Projects and/or the smooth and efficient transition of any Services (or component of Services) to, from, or among Contractually Signed Customer, Aurora Select Technologies INC. and any Third Party Contractor. Aurora Select Technologies INC. may require such Third Party Contractors to execute direct non-disclosure agreements with terms no more restrictive than the confidentiality terms contained herein prior to accessing the Services or Aurora Select Technologies INC. System (such non-disclosure agreements “Aurora Select Technologies INC. NDAs”). Access shall be limited to Third Party Contractors that: (a) that have executed a Aurora Select Technologies INC. NDA; (b) need access in connection with the performance of services; and (c) are not Competitors (as defined below) of Aurora Select Technologies INC.
Section 4.3 , Competitors shall mean entities providing direct-to-client products that enable employers to optimize the delivery of Services and Products.
5.BUSINESS CONTINUITY/DISASTER RECOVERY RIGHTS.
5.1 Aurora Select Technologies INC. represents and warrants that its enterprise business continuity program complies with ISO 22301 standards. Aurora Select Technologies INC. shall also comply with the business continuity requirements set forth in the Vendor Agreement between the Parties.
5.2 Contractually Signed Customer may exercise Flip-Over Rights (as defined below) at any time during the period that the Aurora Select Technologies INC. fails to restore Services in accordance with the applicable and approved BCP and included RTO(s) and, upon written request cannot provide adequate assurances that restoration of services will occur reasonably soon (as reasonably determined by Contractually Signed Customer), and, in doing so, may take other action as is reasonably necessary to provide similar services during the period the Services are disrupted.
6.INVOICING AND PAYMENT
6.1 Payment of Fees and Expenses. Aurora Select Technologies INC. shall invoice Contractually Signed Customer for the fees set forth in each Order Schedule, as applicable (“Fees”). Except for the Fees and expenses agreed to be in addition of Support Contract Subscription not otherwise incurred in violation of this Agreement (“Expenses”), no other amounts shall be charged by Aurora Select Technologies INC.. Neither party shall not have any right of offset against amounts owed to it by the other party.
6.2 Invoices. Aurora Select Technologies INC. shall invoice Contractually Signed Customer for all Fees and, if applicable, Expenses via the Invoice online tool in accordance with the then current requirements of business. Contractually Signed Customer will pay Aurora Select Technologies INC. directly. Aurora Select Technologies INC. will be solely responsible for all expenses associated with transmitting and receiving documents via Contractually Signed Customer’s Procurement Process Technology. Aurora Select Technologies INC. shall not charge Contractually Signed Customer for researching, reporting or correcting errors related to invoices. The invoice date shall not be earlier than the date on which Aurora Select Technologies INC. is entitled to payment under the applicable Order Schedule, or if not specified in the Order Schedule, invoices will be issued at the begging of each month (5th). Aurora Select Technologies INC. is not obligated to any prior written notice of any increase in rate.
6.3 Payment by Contractually Signed Customer. Upon Acceptance of the Subscription Service and/or Services, in accordance with any acceptance criteria provided in this Agreement and in each applicable Order Schedule and receipt of a correct and undisputed invoice, Contractually Signed Customer shall
(i) pay Fees on 20th of each month with no discount;
(ii) if applicable, pay Expenses on 20th of each month with no discount; and
6.4 (iii) and pay the full disclosed amounts via electronic transfer payment to Aurora Select Technologies INC.’s financial institution.
6.5 If Contractually Signed Customer in good faith disputes any invoiced amount, Contractually Signed Customer shall in written notice, with-in 15 days of invoice, disputed the amount and notify Aurora Select Technologies INC. in detail in writing as to the nature of the disputed charges and the reason for Contractually Signed Customer’s disagreement. Aurora Select Technologies INC. shall then respond by providing documentation in reasonable detail for the disputed charges. The Parties shall make all reasonable attempts to resolve the dispute as amicably as possible within thirty (30) days.
6.6 Taxes. Contractually Signed Customer shall pay to Aurora Select Technologies INC. all applicable sales or use taxes assessed by a government authority with respect to Contractually Signed Customer’s use of the Subscription Service and/or Services provided by Aurora Select Technologies INC. under this Agreement, provided that Aurora Select Technologies INC. shall separately itemize such taxes on its invoice(s) to Contractually Signed Customer and that, upon request of Contractually Signed Customer, Aurora Select Technologies INC.
6.7 Effect of Payment on Aurora Select Technologies INC.’s Other Obligations. Any payment by Contractually Signed Customer shall affect Aurora Select Technologies INC.’s obligations under this Agreement and shall be construed as acceptance by Contractually Signed Customer of continuing Subscription Service.
7.TERM AND TERMINATION; TRANSITION ASSISTANCE.
7.1 Agreement. The initial term of this Agreement (the “Initial Term”) shall begin on the Effective Date and shall end three (1) year thereafter unless earlier terminated in accordance with this Agreement. Following the Initial Term of this Agreement, this Agreement shall automatically renew for an additional one year term (each a “Renewal Term”) unless either Party provides the other Party with written notice of non-renewal at least one hundred eighty (90) days prior to the end of the Initial Term or any Renewal Term. Each Party agrees to commence good faith negotiations on changes to the terms (excluding pricing for the Core Transparency Functionality) at least 30 days prior to the expiration of the Initial Term and any Renewal Term unless otherwise agreed to by the Parties.
7.2 Order Schedules. Each Order Schedule is an independent obligation of the Parties.
7.3 Termination for Breach. Either party may terminate this Agreement and any Order Schedule (in whole or in part) by providing the other party with not less than thirty (30) days’ prior written notice in the event the other party materially breaches any provision of this Agreement. The notice must specify the nature of said material breach.
The breaching party shall have fifteen (15) days from receipt of the notice to correct the material breach. If the breaching party fails to cure the material breach within the fifteen (15) day period, the non-breaching party may terminate this Agreement, effective upon completion of the aforementioned thirty (30) day notice period.
7.4 Additional Termination Rights for Breach. In the event any material breach by either Party that creates a material violation of law, non-compliance with any of the organizations in which such Party or its Affiliate holds an accreditation or a situation whereby either Party is in significant jeopardy as to its ability to perform under this Agreement, then the non-breaching Party may give ten (10) business days’ notice of the material breach to the other Party. If the breaching Party fails to cure the material breach within such ten (10) business day period, the non-breaching Party may terminate this Agreement effective at the end of the ten (10) business days, notwithstanding any other provision in this Agreement.
7.5 Termination Due to Insolvency. Either Party may terminate this Agreement or any Order Schedule immediately upon the occurrence of any of the following events with respect to the other Party: (a) the other Party becomes insolvent, generally unable to pay its debts as they become due, or makes an assignment for the benefit of its creditors or seeks relief under any bankruptcy, insolvency or debtor’s relief law; (b) if proceedings are commenced against the other Party under any bankruptcy, insolvency or debtor’s relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; (c) a receiver is appointed for the other Party or its material assets; or (d) if the other Party is liquidated, dissolved or ceases operations.
7.7 Termination for Convenience. Subsequent to the expiration of the Initial Term, either Party may terminate this Agreement, including any and all Order Schedules, for its convenience on one hundred eighty (180) calendar days prior written notice to the other Party without payment of an early termination fee or similar charges.
8.SECURITY.
8.1 General. Aurora Select Technologies INC. shall implement reasonable security measures to prevent unauthorized access to the Aurora Select Technologies INC. System, Subscription Service, Contractually Signed Customer Data and other Contractually Signed Customer Confidential information and content under Aurora Select Technologies INC.’s control. Such measures shall in no event be less stringent than those used to safeguard Aurora Select Technologies INC.’s own property. Such measures shall include, where appropriate, use of updated firewalls, virus screening software, logon identification and passwords, encryption, intrusion detection systems, Segregation of systems and platforms. logging of incidents, periodic reporting, and prompt application of current security patches, virus definitions and other updates. In no event shall Aurora Select Technologies INC. make less stringent its security procedures, other procedures, policies or controls currently in place without the prior written agreement to such modifications by Contractually Signed Customer. Contractually Signed Customer reserves the right to terminate the Agreement, in its sole discretion and without limitation or termination liability, if Contractually Signed Customer reasonably determines that Aurora Select Technologies INC. fails to meet its obligations under this Section. Aurora Select Technologies INC. shall notify Contractually Signed Customer within 24 hours (a) of any breach of the security of the Aurora Select Technologies INC. System or Subscription Service, (b) if the security of the Contractually Signed Customer Data is compromised in any way, or (c) of any unauthorized disclosure of the Contractually Signed Customer Data. Aurora Select Technologies INC. shall cooperate with Contractually Signed Customer in any investigation of the foregoing and shall provide Contractually Signed Customer with any copies of reports of Aurora Select Technologies INC.’s investigation into, or remedial efforts with respect to, any of the foregoing.
8.2 Limited Access. To the extent made accessible to Aurora Select Technologies INC., Aurora Select Technologies INC. shall, at all times, limit access to Contractually Signed Customer Data and Contractually Signed Customer Confidential information to those employees or subcontractors that have an actual need to access such data for purposes of providing the Services. Prior to gaining access to Contractually Signed Customer Data or Contractually Signed Customer Confidential information, Aurora Select Technologies INC. shall require all employees or subcontractors to comply with confidentiality, security and intellectual property provisions no less stringent than the provisions set forth in this Agreement and, at Contractually Signed Customer’s request, have an officer certify in writing it has done so.
8.3 Notification of Security Breaches. Aurora Select Technologies INC. shall within 24 hours notify Contractually Signed Customer should it discover any breach of the Contractually Signed Customer Data and will immediately coordinate with Contractually Signed Customer to investigate and remedy such breach(es) in a diligent and timely manner. Except as may be strictly required by applicable law, Aurora Select Technologies INC. agrees that it will not inform any third party of any such security breach, without Contractually Signed Customer’s prior written consent; however, if such disclosure is required by applicable law, Aurora Select Technologies INC. agrees to work with Contractually Signed Customer, at no additional cost to Contractually Signed Customer, regarding the content of such disclosure so as to minimize any potential adverse impact upon Contractually Signed Customer and its members.
10.REPRESENTATIONS, WARRANTIES, AND COVENANTS.
10.1 General Warranties of Both Parties
10.1.1 Compliance with Laws. Each Party shall at all times comply with all applicable laws, rules and regulations in the performance of this Agreement.
10.1.2 Existence. Each party is duly organized and existing and is in good standing and is qualified to do business under the laws of any jurisdiction where the ownership of assets or conduct of its business require it to be so qualified, and each party possesses any and all licenses and/or governmental approvals required to perform the Services and/or to provide the Subscription Service contemplated by this Agreement, and is qualified to perform such Services and/or provide such Subscription Service.
10.1.3 Duly Authorized. Each party’s execution, delivery and performance of this Agreement has been duly authorized by all appropriate corporate action and this Agreement constitutes a valid, binding and enforceable obligation.
10.1.4 No Conflict. Neither the execution, delivery, nor performance of this Agreement will conflict with or violate any other agreement, license, contract, instrument or other commitment or arrangement to which either party is a party or is bound.
10.1.5 No litigation. There is no litigation, and neither Party knows of any material threat of litigation, in each case that will affect the performance of its obligations hereunder.
10.1.6 Compliance with Laws and Regulations. Each Party shall perform its obligations hereunder in accordance with all applicable law and regulations, and shall be responsible for obtaining all licenses, authorizations, permits and the like required by applicable laws and regulations, and any fees, costs or expenses incurred by such Party shall be borne solely by such Party. Each Party shall be solely responsible for any fines and penalties imposed on it or the other Party resulting from such Party’s failure to comply with any such applicable laws and regulations.
10.1.7 Data Quality Governance. Contractually Signed Customer and Aurora Select Technologies INC. will establish a data quality governance and escalation process, to include senior technical leadership from each organization.
10.2 Aurora Select Technologies INC.’s Representations, Warranties and Covenants. Aurora Select Technologies INC. hereby represents, warrants and covenants:
10.2.1 No Material Defects; Conformity with and Completeness and functionality. The Aurora Select Technologies INC. System, Subscription Service and/or Services to be provided shall be free from material errors or other material defects; and shall substantially conform to the Documentation. The Documentation and other materials describing the Services and/or Subscription Service hereunder completely and accurately reflect their operation and functionality.
10.2.2 All Rights; No infringement. Aurora Select Technologies INC. has all rights and authorizations necessary to grant/deny access and use rights to the Aurora Select Technologies INC. System and the Subscription Service, and to perform any Services as contemplated herein. Further, if applicable, Aurora Select Technologies INC. Any Services performed by Aurora Select Technologies INC., will not violate, misappropriate or infringe upon any Intellectual Property right of any person or entity; and there are no claims of any third party against Aurora Select Technologies INC. relating to any Intellectual Property that is the subject of, to be provided under, or to be used directly or indirectly pursuant to this Agreement.
10.2.3 Performance. To the extent Aurora Select Technologies INC. is performing Services, at all times during the performance of such Services, Aurora Select Technologies INC. has and will maintain the experience and skill to perform the Services required to be performed by it hereunder and will perform such Services in a timely, workmanlike manner.
10.2.4 Personnel Qualifications. Each of Aurora Select Technologies INC.’s personnel assigned to perform Services or any other obligations under the Agreement shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and all work will be so performed.
10.2.5 Aurora Select Technologies INC.’s Employees. Aurora Select Technologies INC. shall perform all obligations of an employer with respect to all personnel hired by Aurora Select Technologies INC. in connection with any Services to be provided, if any, including, but not limited to the withholding and reporting of contributions, insurance deductions and applicable taxes (including payroll and unemployment insurance taxes) required by applicable law.
10.2.6 Subscription Service Functionality. The Subscription Service will accept input, perform processes, and provide output in a manner that is consistent with all applicable specifications.
10.2.7 Criminal Convictions. Neither Aurora Select Technologies INC. nor its employees, subcontractors or agents has been, nor shall be during the Term, convicted of a criminal offense related to the delivery of an item or service under Medicare, Medicaid and/or under any state health care program.
10.2.8 Location of Work. All such locations shall be in the United States, Canada and at no other location, unless otherwise agreed in writing.
10.2.9 Warranty against Harmful Code. Aurora Select Technologies INC. warrants that it will use commercially reasonable efforts to ensure that the Subscription Service will not relay computer viruses or other harmful code to the network or computing environment of Contractually Signed Customer of its Affiliates.
10.2.10 Compliance with Foreign Corrupt Practices Act. Aurora Select Technologies INC. and its subsidiaries, affiliates, directors, officers, shareholders, employees, representatives and agents have not and shall not, during the term of this Agreement, in connection with the transactions contemplated by this Agreement or in connection with any other business transactions involving Contractually Signed Customer, make, or offer to make, payments of money or anything of value, directly or indirectly, to a Foreign Official, as that term is defined in the Foreign Corrupt Practices Act (FCPA), for the purpose of obtaining or retaining business in violation of the FCPA.
10.2.11 Website Accessibility Standards. To the extent that Aurora Select Technologies INC. is providing development, design and/or maintenance of any electronic and information technology, including, without limitation, any consumer facing web and mobile experiences, Aurora Select Technologies INC. shall ensure that all such electronic and information technology meets, to the extent possible, the accessibility requirements set forth in Section 508 of the Rehabilitation Act (29 USC 794(d)), the related Technical Standards issued by the Architectural and Transportation Barriers Compliance Board (aka the “Access Board”), success level AA or higher of the most current Web Content Accessibility Guidelines issued by the Worldwide Web Consortium, and any other federal or state law which requires specific design elements to accommodate disabled individuals.
11.INTELLECTUAL PROPERTY OWNERSHIP
11.1 Overview of Materials and Ownership. The performance of Aurora Select Technologies INC. Services may require use of and/or access to intellectual property owned or created (a) by Contractually Signed Customer, (b) by Aurora Select Technologies INC. independent of its obligations to Contractually Signed Customer, or (c) by Aurora Select Technologies INC. (either independently or in cooperation with Contractually Signed Customer) pursuant to its obligations under this Agreement. This Section 12 – Ownership -sets forth the Party’s respective intellectual property rights of such materials.
11.2 Contractually Signed Customer Materials. In the course of Aurora Select Technologies INC.’s provision of Aurora Select Technologies INC. Services, Contractually Signed Customer may provide to Aurora Select Technologies INC. Contractually Signed Customer’s proprietary information and/or Intellectual Property, including, and limited to, technical data, content and concepts, or vendor lists and information. Contractually Signed Customer shall own all rights, title, and interest in and to: (1) the Contractually Signed Customer Provided Materials and (2) any and all Contractually Signed Customer Data. In addition, all Contractually Signed Customer Material shall be deemed Confidential Information subject to Section 8 (Security) Security and Section 9 (Confidentiality) – herein. Contractually Signed Customer hereby grants Aurora Select Technologies INC. a perpetual (during the term of this Agreement), revocable (to the extent of termination rights in this Agreement), royalty-free (subject to any payment obligations herein), fully paid-up, non-transferable (except to permitted Aurora Select Technologies INC. assignees hereunder), non-sublicensable, non-exclusive, worldwide license to use, the Contractually Signed Customer Data and Contractually Signed Customer Materials to the extent necessary in a manner consistent with its intended use as set forth in this Agreement and only during the term of this Agreement. Except in accordance with this Section 12.2.
11.3 Aurora Select Technologies INC. Materials. The Parties acknowledge that materials provided by Aurora Select Technologies INC. may incorporate technology or content previously developed by Aurora Select Technologies INC., or which Aurora Select Technologies INC. has developed (i) without the use of any Contractually Signed Customer intellectual property, and (ii) for services unrelated to the Aurora Select Technologies INC. Services (collectively, the “Aurora Select Technologies INC. Materials”). In addition to the foregoing, for purposes of this Agreement, “Aurora Select Technologies INC. Materials” shall include: (1) Aurora Select Technologies INC.’s proprietary technology platform and system (including without limitation software, web design, Designs, Material provided, hosting platform, business email platform, Marketing content, algorithms and proprietary and technical information therein) for gathering, analyzing, modifying and making available to users certain health-related user and provider data and related information, guidance and services (the “Aurora Select Technologies INC. Platform”); and (2) Aurora Select Technologies INC.’s technical data, creative designs and concepts, web designs, trade secrets and know-how, business plans, software, algorithms, programming techniques, business rules, business methods, inventions, drawings, engineering, hardware configuration information, marketing and strategic plans, financial data, processes, technology and designs which it maintains for purposes of providing its consumer transparency services, any pre-developed communication and marketing templates (the “Aurora Select Technologies INC. Service”); and (3) all intellectual property rights within the foregoing. As between the parties, Aurora Select Technologies INC. shall own all rights, title, Ownership, and interest in and to the Aurora Select Technologies INC. Materials, and all Aurora Select Technologies INC. Materials shall be deemed Confidential Information subject to Section 8 (Security) and Section 9 (Confidentiality) – herein. Subject to the provisions of this Agreement , Aurora Select Technologies INC. And otherwise use the Aurora Select Technologies INC.’s Materials to the extent necessary to allow Contractually Signed Customer the right to fully enjoy the Aurora Select Technologies INC. Services solely in a manner consistent with their intended use
Section 11.4 below, it is understood that Aurora Select Technologies INC. shall own all modifications, improvement, enhancements, derivative works, additional modules or features made by Aurora Select Technologies INC. to the Aurora Select Technologies INC. Materials (collectively “Modifications”), whether or not such Modifications were made by Aurora Select Technologies INC. on the basis of any feedback, ideas, suggestions, or information provided by Contractually Signed Customer.
11.5 Aurora Select Technologies INC. Intellectual Property. Notwithstanding anything to the contrary contained in Article 11 above, as between Contractually Signed Customer and Aurora Select Technologies INC., Aurora Select Technologies INC. is deemed to own the Intellectual Property embodied in the Aurora Select Technologies INC. Services, Aurora Select Technologies INC. Materials and Aurora Select Technologies INC. Platform.
12.LIMITATION OF LIABILITY
12.1 No Consequential Damages. Except as set forth in Section 14.3 below, in no event shall either Party be liable to the other or to any third party, whether in contract, tort (including negligence), warranty or otherwise, for any indirect, incidental, special, consequential, exemplary or punitive damages (including, without limitation, loss of profits) arising out of or relating to this Agreement, even if such Party has been advised of the possibility of such damages.
12.2 13.2 Limit on Direct Damages. Except as set forth in Section 13.3 below, in no event shall either Party’s aggregate liability exceed three (3) times the total amounts paid or payable by Contractually Signed Customer to Aurora Select Technologies INC. hereunder. For the avoidance of doubt, amounts paid or payable include, but are not limited to, implementation and customization fees paid or payable by Contractually Signed Customer to Aurora Select Technologies INC.. Any amount owed by Aurora Select Technologies INC. to Contractually Signed Customer in the way of service credits.
12.3 Exceptions to Limitation of Liability. The limitations of liability in Sections 13.1 and 13.2 shall not apply to (i) a Party’s indemnification obligations under this Agreement, (ii) a breach by a Party of its confidentiality obligations under this Agreement, (iii) claims relating to willful misconduct, gross negligence, personal injury or damage to property, (iv) abandonment by Aurora Select Technologies INC. of the Agreement or a breach by Aurora Select Technologies INC. of the paragraph entitled “Electronic Self-Help”, or (v) any fines or penalties arising from a Party’s acts or omissions in performing in accordance with this Agreement.
subcontracting proposal), (ii) obtaining Contractually Signed Customer’s prior written approval; and (iii) causing the approved subcontractor to agree in writing to perform and be subject to all of Aurora Select Technologies INC.’s obligations under this Agreement; and (iv) prohibiting the subcontractor from further subcontracting without Contractually Signed Customer’s prior written approval. Notwithstanding Contractually Signed Customer’s approval of a subcontracting arrangement, Aurora Select Technologies INC. shall remain primarily liable for the performance of all subcontracted obligations and shall remain Contractually Signed Customer’s sole point of contact under this Agreement. At Contractually Signed Customer’s reasonable request, Aurora Select Technologies INC. shall promptly remove and/or replace any subcontractor.
13.ROUTINE MODIFICATIONS AND ENHANCEMENTS
13.1 Aurora Select Technologies INC. may implement routine enhancements to The Transparency Web Site and the Core Transparency Functionality. If desired, Aurora Select Technologies INC. to materially customize the Transparency Web Site Core Transparency Functionality, the parties shall negotiate in good faith and shall memorialize any further customization and associated cost in writing. Customizations undertaken by Aurora Select Technologies INC. shall be billed to Contractually Signed Customer on a time and materials basis at a blended rate not to exceed $150 per hour.
14.MISCELLANEOUS
14.1 Assignment. Neither Party may assign its rights or obligations under the Agreement to any third party without the prior written consent of the other Party; The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
14.2 Trademarks and Branding/No Publicity.
14.2.1 Except as may be explicitly set forth in this Agreement.
14.3 Aurora Select Technologies INC. shall have all rights to label and brand its services and products
14.4 Notices. All notices, requests, claims, demands, and other communications (each a “Notice”) under the Agreement shall be in writing and shall be given or made by delivery in person, by facsimile, by courier service, or by certified mail or email.