If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.
1.2 “Application” means the application(s) made available by HMS, from time to time, in order to access the Service from a mobile device.
1.3 “Authorized User” means an individual who is authorized by Customer to use the Service under Customer’s account. Authorized Users may include, without limitation, Customer’s or its Affiliate’s employees, consultants, contractors, and agents.
1.4 “Customer Data” means information submitted by an Authorized User through the Service, including all associated job information, messages, attachments, files, tasks, to-do’s, daily logs, invoices, photographs, videos, client information, and other similar content.
1.5 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
1.6 “Improvements” means new versions, features, functionality, enhancements, upgrades, error corrections, and bug fixes to the Service made generally available to its customers by HMS, from time-to-time, at no additional charge.
1.7 “Order Form” means an ordering document or an online order provided by email or through the Service interface specifying the Service to be provided by HMS to Customer under this Agreement.
1.8 “Registered Client” means an individual who has been invited to use the client-facing features of the Service in a limited capacity as a client of an Authorized User.
1.9 “Registered Client Data” means information submitted by a Registered Client through the Service, including all associated job information, messages, attachments, files, tasks, to-dos, daily logs, photographs, videos, and other similar content.
1.10 “Support Services” means the customer success services provided by HMS, as specified in the applicable Order Form.
1.11 “Service” means HMS’s construction management software as a service platform, including any Improvements and Applications.
1.12 “Subscription” means the access to the Service purchased by Customer as set forth in an applicable Order Form.
1.13 “Subscription Term” means the period identified in the Order Form during which Customer’s Authorized Users and Registered Clients are permitted to use or access the Service pursuant to the terms set forth in this Agreement.
1.14 “Time-Clock User” means an Authorized User with access and functionality in the Service that is limited to the time clock feature.
2.1 Provision of the Service. During the applicable Subscription Term, HMS shall make the Service purchased under an applicable Order Form available to Customer, its Authorized Users, and Registered Clients pursuant to the terms of this Agreement. The Service will include the features and functionality applicable to the version of the Service ordered by Customer. HMS may update the content, functionality, and user interface of the Service from time to time in its sole discretion.
2.2 Access Rights. HMS hereby grants Customer a non-exclusive, non-sublicenseable, non-transferable (except as specifically permitted in this Agreement), revocable right to access and use the Service, pursuant to the terms of this Agreement, during the applicable Subscription Term.
2.3 Usage Rights. Customer shall not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer and its Affiliates; (b) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Service; (c) reverse engineer, copy, modify, adapt, hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) publicly display or distribute the Service, including, but not limited to, distribution of screenshots, screen captures, or videos of the Service; (e) access the Service or HMS’s Confidential Information to build a competitive product or service; (f) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service; (g) allow Authorized User Subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User Subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Service for any purpose, whether by termination of employment or other change in job status or function); (h) purchase any services through the Service which are prohibited in Customer’s jurisdiction; (i) use any software, devices, scripts, crawlers, robots, or other automated processes to copy, scrape, or systematically acquire any content contained within the Service without the express written consent of HMS, or (j) access or use the Service: (1) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (2) in violation of applicable laws; (3) to send or store material knowingly or intentionally containing software viruses, worms, Trojan horses or other harmful computer code, files, or scripts; or (4) in a manner that interferes with or disrupts the integrity or performance of the Service (or the data contained therein).
2.4 Protection of Customer Data. HMS shall implement and maintain industry standard administrative, organizational, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Customer Data by our personnel. Customer bears sole responsibility for adequate security, protection, and backup of Customer Data when in Customer’s or its representatives’ or Affiliates’ possession or control. Notwithstanding anything set forth herein to the contrary, during the Subscription Term, and for a period of one (1) year following the expiration or termination of the Subscription Term, HMS will make available to Customer, at the rates below, the following means of export for its Customer Data: (i) a separately hosted account on a private server (subject to the fees below, plus $30/hr for any Support Services), or (ii) an excel-based export of all of the relevant Customer Data.
2.5 Administration of Customer’s Account. Customer acknowledges that it retains administrative control over to whom it grants access to Customer Data and Registered Client Data hosted in the Service. Customer may specify an Authorized User to be the billing owner and one or more Authorized Users to be administrators (each an “Administrator”) to manage its account, and HMS is entitled to rely on communications from an Administrator when servicing Customer’s account. Customer’s Administrator(s) may have the ability to access, monitor, use, and/or export Customer Data or Registered Client Data. Customer is solely responsible for maintaining the security of Authorized User accounts and passwords. In the event that Customer is unable to log into HMS as an Administrator (for example, Customer has lost the Administrator password), then Customer authorizes HMS to request the following information in order to restore Administrator access: (i) a copy of Customer’s business license, and (ii) a copy of the State issued driver’s license of the individual named on Customer’s business license. HMS shall be entitled to rely upon the authenticity of any such documents delivered to it pursuant to this paragraph.
2.6 Compliance. Customer is responsible for use of the Service by its Authorized Users and Registered Clients and for their compliance with this Agreement. Customer is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to HMS so that HMS and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer shall promptly notify HMS if it becomes aware of any unauthorized use of or access to Customer’s account or the Service. If a Registered Client wishes to exercise his or her rights under a consumer privacy law (including, but not limited to, the European Union’s General Data Protection Regulation (GDPR), United Kingdom’s Data Protection Act, Canada’s Personal Information and Electronic Documents Act (PIPEDA), or California Consumer Privacy Act of 2018), the Registered Client shall contact the Customer to request the Customer to remove that data from the Service on the Registered Client’s behalf.
2.7 Suspension. HMS may request that Customer suspend the account of any Authorized User or Registered Client who (a) violates this Agreement; or (b) uses the Service in a manner that HMS reasonably believes may cause a security risk, a disruption to others’ use of the Service, or liability for HMS. If Customer fails to promptly suspend or terminate such Authorized User or Registered Client’s account, then HMS reserves the right to do so and/or to suspend or terminate Customer’s account.
3.1 By Customer. Customer warrants that (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; (b) it has obtained all legally required consents and permissions from Authorized Users and Registered Clients for the submission and processing of any and all data submitted through the Service including, but not limited to personal data; and (c) the transfer and processing of Customer Data under the agreement complies with all applicable laws.
3.2 By HMS. HMS warrants that (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (b) its performance hereunder will not conflict with any other agreements with third parties.
3.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE APPLICATION, THE SERVICE, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND HMS AND ITS AFFILIATES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE AND NON-INFRINGEMENT NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE AND HMS DOES NOT WARRANT THAT THE SERVICE OR THE APPLICATION WILL MEET CUSTOMER’S NEEDS. CUSTOMER ACKNOWLEDGES THAT HMS DOES NOT WARRANT THAT THE APPLICATION OR THE SERVICE WILL BE UNITERRUPTED, TIMELY, SECURE, OR ERROR-FREE. HMS IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE, AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD-PARTY HOSTING SERVICE PROVIDERS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY IN ALL CIRCUMSTANCES. HMS does not warrant that the Application or the Service will be compatible with all devices. If the Application or the Service is accessed through a mobile device, the relevant wireless service carrier may charge applicable data rates and related fees.
3.4 Device and Wireless Carrier Disclaimers. While HMS attempts to provide the Service and Application features to all users, use of the Application and the Service may be limited for some or all users due to conditions outside of HMS’s control. As a result, not all advertised features may be available at all times. Some of these conditions include, but are not limited to, the following: an individual’s mobile device or their wireless carrier may limit the features available. Data or messaging plans may limit certain use of the Service. An individual’s wireless voice and/or data signal may make access to the Application or some of its features intermittent or unavailable. The Application and its features may not be available in some geographic locations.
HMS is not liable, and expressly disclaims any representations or warranties, regarding access to the Application or its services or features through a particular wireless carrier, network, or plan, on a particular device, or in a particular location. HMS does not guarantee that the Service will always be accessible or available. Customer and its Authorized Users and Registered Clients are each solely responsible for any and all costs each party incurs to access the Application through their own mobile device.
4.1 Subscription Fees. Customer’s Subscription Fees are set forth in the applicable Order Form delivered to Customer by HMS. All Subscription Fees are subject to change upon notice. Customer shall pay all fees when due and is responsible for providing complete and accurate billing information to HMS. If such fees are paid via credit card or other electronic means, Customer authorizes HMS to charge such fees using Customer’s selected payment method. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise expressly provided for herein. The number of Authorized Users or Time-Clock Users purchased under a Subscription cannot be decreased during the applicable Subscription Term. HMS reserves the right to suspend Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue. Suspension shall not relieve Customer’s obligation to pay all amounts due.
4.2 Auto-Renewal. Customer agrees that its Subscription will automatically renew on a monthly basis after the initial Subscription Term (the “Renewal Date”) at the then-current Subscription Fee. If Customer has an annual Subscription Term, HMS will endeavor to notify Customer by email at least thirty (30) days prior to the expiration of the Subscription Term to inquire whether Customer would like to renew for another annual Subscription Term. Customer authorizes HMS to automatically charge Customer for the applicable fees on or after the Renewal Date unless the Subscription has been terminated or cancelled in accordance with this Agreement. If Customer wishes to reduce the number of Authorized Users or Time-Clock Users in its Subscription, it must do so prior to the Renewal Date. Customer must cancel its Subscription prior to the Renewal Date in order to avoid being charged the applicable Subscription Fee for the relevant Subscription Term on the Renewal Date. If Customer would like to cancel its Subscription, please see the Cancellation process in Section 4.3.
4.3 Cancellation. Customer must cancel its Subscription prior to the Renewal Date in order to avoid being charged the applicable Subscription Fee for the relevant Subscription Term on the Renewal Date. If Customer attempts to cancel its Subscription during the Subscription Term, Customer will not be issued a refund for the most recent Subscription Fee (or any previously) charged fees and the Subscription will terminate on the next applicable Renewal Date. To initiate a cancellation, an Administrator on Customer’s account should contact Customer’s customer success representative or email support@HMS.com. Requests from anyone other than the Administrator will not be recognized. HMS will provide the Administrator with an online Account Change Request Form. To fully execute the cancellation process, the Administrator must first complete and return an Account Change Request Form provided by a HMS representative and then confirm the cancellation request with a HMS representative. A cancellation is not effective until the Administrator submits the Account Change Request Form and the Administrator confirms the cancellation with a HMS representative via email or phone. After confirming your cancellation, HMS may send additional follow-up communication regarding your cancellation request.
4.4 Calculation. Subscription fees are based on annual or monthly periods (or pro rata portions thereof, calculated on a daily basis) that begin on the Subscription start date and each annual or monthly anniversary thereafter. Customer shall purchase a Subscription to the Service for each Authorized User and Time-Clock User, and the initial number of Authorized Users and Time-Clock Users is reflected in the applicable Order Form. Customer may add Authorized Users and Time-Clock Users to its Subscription at any time on written notice to HMS (email notice is acceptable). If Customer has an annual Subscription Term, the fees for additional Authorized Users and Time-Clock Users will be calculated at the then-current fee multiplied by the months remaining in the Customer’s Subscription Term. HMS reserves the right to calculate the total number of Authorized Users and Time-Clock Users periodically and, if the number of Authorized Users or Time-Clock exceeds Customer’s current Subscription, then HMS reserves the right to invoice Customer for the applicable number of users for the remaining period in Customer’s Subscription Term, so that all Authorized User Subscription Terms coincide and are co-terminus. HMS reserves the right to revise fee rates and/or the billable amount structure for the Service at any time in accordance with Section 13.3 below. HMS may charge Customer the then-current pricing for the applicable Subscription if the number of Authorized Users or Time-Clock Users is modified, if Customer changes its Subscription plan, and/or on the next Renewal Date.
4.5 Risk-Free Trial. Customer may be eligible for a risk-free trial period as described in the applicable Order Form. Beginning on the Effective Date, Customer will be charged all applicable Subscription Fees during the Risk-Free Period using the Customer’s selected payment method. To receive a refund of such Subscription Fees charged during the Risk-Free Period, Customer must cancel the Subscription (pursuant to Section 4.3 above) prior to the expiration of the Risk-Free Period.
4.6 Taxes. Any fees charged to Customer are exclusive of taxes. Except for those taxes based on HMS’s net income, Customer shall be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Service be subject to withholding tax by any government, Customer shall reimburse HMS for such withholding tax.
4.7 Future Features and Functionality. Customer acknowledges and agrees that any purchases under this Agreement are not contingent upon the delivery of any future feature or functionality or dependent upon any oral or written public or private comments made by HMS regarding future features or functionality. HMS may release Improvements and other features and functionality in its discretion.
This Agreement commences on the Effective Date and shall remain in effect until all Subscriptions to the Service granted in accordance with this Agreement have expired or been terminated. Either party may terminate this Agreement if the other party: (a) is in material breach of this Agreement and fails to cure such breach within twenty (20) days following receipt of written notice from the non-breaching party, except that termination will take effect upon notice in the event of a breach of Section 2.3 (Usage Restrictions); or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days. Upon expiration or termination of this Agreement for any reason, all Subscriptions and any other rights granted to Customer under this Agreement shall immediately terminate, and HMS may immediately deactivate Customer’s account(s) associated with the Agreement. In no event will any termination relieve Customer of the obligation to pay any fees accrued or payable to HMS. The following sections shall survive expiration or termination of this Agreement: Section 1 (Definitions), Section 2.3 (Usage Restrictions), Section 3 (Warranties), Section 4.1 (Subscription Fees), Section 4.5 (Taxes), Section 5 (Term and Termination), Section 6 (Confidentiality), Section 7 (Intellectual Property Rights), Section 9 (Indemnification), Section 10 (Liability), Section 11 (Export Compliance), Section 12 (Use Outside the United States of America), and Section 13 (Miscellaneous).
6.1 Definition of Confidential Information. During the course of performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the Service, any Order Form(s) entered into by the parties, Customer Data, Registered Client Data, results, business plans, project plans and roadmaps, schedules, forecasts, purchase orders, billing, financial information and fee structures, business processes, methods and models, and technical documentation. Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
6.3 Equitable Relief. The receiving party acknowledges that the remedy at law for breach of this Section 6 may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of this Section 6 by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 6 in addition to any other remedy to which the disclosing party is entitled at law or in equity.
6.4 Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will, if lawfully permitted to do so, notify the disclosing party within a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information. Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
6.5 Sensitive/Personal Information. Customer agrees that it shall not use the Service to send or store personal information subject to special regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and any similar data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs).
7.2 By HMS. HMS owns and will continue to own all right, title, and interest, including all related Intellectual Property Rights, in and to its Confidential Information and the Service, including any Improvements, enhancements, customizations, or modifications thereto.
7.3 Suggestions. HMS welcomes feedback from its customers about the Service. If Customer (including any Authorized User or Registered Client) provides HMS with any ideas, suggestions, documents, proposals or feedback regarding the Service (“Feedback”), Customer agrees as follows: (i) Customer grants HMS an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, disclose, prepare derivative works, publish, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Customer, any Authorized User, or any Registered Client provided that HMS shall not identify Customer, any Authorized User, or any Registered Client as the source of such Feedback, and (ii) the Feedback does not contain any confidential information of third parties, and (iii) HMS is under no obligation of confidentiality, express or implied, with respect to the Feedback.
8.1 License. HMS may offer from time to time the HMS Mobile Application. If such an Application is available and Customer or its Authorized User and/or Registered Client chooses to download it, subject to, and in accordance with, the terms of this Agreement, HMS grants to such Customer, Authorized User and/or Registered Client, and such party accepts from HMS, a limited, revocable, non-exclusive, and non-transferable license to use the Application. HMS reserves all rights not expressly granted hereunder. This license is automatically revoked if a party violates any of the terms of this Agreement.
8.2 Payment Terms. HMS may make all or some of the Application and the Application’s services available for free (the “Free Services”). HMS does not guarantee that any portion of the Services will always be available for free and reserves the right to begin charging for any portion of the Services at any time. The Free Services may have reduced functionality. Please review the specific terms for your applicable purchase. If Customer makes a purchase through the Service, then Customer consents to HMS storing its payment information. Prices are subject to change. In the event the HMS Service is discontinued for any reason, any purchases will terminate and no refund will be made.
8.3 Source Code. The grant of this license is not, and shall not be construed as, a grant of any right to use, receive or view, copies of source code, schematics, master copies, design materials or other information used in creating, developing or implementing the Application, including updates or modifications thereto. Without limiting the foregoing, Customer, its Authorized Users and/or Registered Clients shall have no rights to receive any source code for the Application and shall not reverse engineer, disassemble or decompile, or otherwise attempt to derive source code for the Application for any purpose.
8.4 Prohibitions. Customer agrees not to do, or permit others to do, any of the following: (a) copy or modify the Application in any way, except as expressly permitted in these Terms; (b) remove or modify HMS’s copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the Application or Service; (c) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Application’s source code or object code or other runtime objects or files distributed with the Application; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Application or Service; (e) rent, lease, distribute (or redistribute), provide or otherwise make available the Application or Service, in any form, to any third party (including in any service bureau or similar environment); (f) use the Application or Service to process the data of third parties; (g) use, install, or make available the Application, in whole or in part, through a wide area network including but not limited to World Wide Web sites, intranets, or Application Service Providers (ASP); or (h) use the Application or Service to infringe on any person’s copyright. In addition, Customer agrees not to violate or attempt to violate the security of HMS’s networks or servers, including (x) access data not intended for Customer or log into a server or account which Customer is not authorized to access; (y) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (z) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.
8.5 Maintenance or Support. HMS is not under any obligation to provide maintenance or support for the Application. HMS may provide maintenance or support for the Application in HMS’s sole discretion.
8.6 Uninstallation. Customer, its Authorized User and/or Registered Client may, at any time, uninstall the Application by utilizing its mobile device’s procedures for uninstalling downloaded applications. However, HMS may retain collected data after the uninstallation.
8.7 Third-Party Terms. Customer, its Authorized User and/or Registered Client must comply with applicable third-party terms of service when using the Application, including any terms required by an applicable mobile carrier or device manufacturer.
8.8 Apple and Google-Specific Terms. The following additional terms and disclosures only apply to you if you use the Application through the Apple or Google operating systems, if available and as applicable:
9.1 By Customer. Customer shall indemnify, hold harmless and defend HMS, its Affiliates, and their employees, officers, and directors (together, the “HMS Indemnified Parties”) from and against any third party claims, actions, proceedings, suits and demands brought against the HMS Indemnified Parties, and against all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, settlement costs and reasonable attorneys’ fees) incurred by the HMS Indemnified Parties arising out of or relating to: (i) Customer’s breach of any term or condition of this Agreement, (ii) Customer’s, its Authorized Users, and/or Registered Client’s use of the Service, (iii) Customer’s, its Authorized Users, and/or Registered Client’s unauthorized use of the Service, or (iv) Customer’s, its Authorized Users, and/or Registered Client’s use, posting, uploading or transmission of Customer Data and/or Registered Client Data. HMS will provide prompt notice to Customer of any indemnifiable claim against HMS. Customer will undertake, at Customer’s own cost, the defense of any claim, suit, or proceeding with counsel reasonably acceptable to HMS. HMS reserves the right to participate in the defense of the claim, suit or proceeding, at HMS’s expense, with counsel of HMS’s choosing.
9.2 By HMS. HMS will indemnify, defend, and hold harmless Customer, its Affiliates, and their employees, officers, and directors (together the “Customer Indemnified Parties”) from and against all liabilities, damages, costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Customer Indemnified Parties to the extent the claim is based on an allegation that the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will HMS have any obligations or liability under this Section arising from: (i) Customer’s, any Authorized User’s, or any Registered Client’s use of the Service other than as permitted under this Agreement; or (ii) use of the Service in a modified form or in combination with products, services, content, or data furnished to Customer by HMS.
9.3 Potential Infringement. If the Service becomes, or in HMS’s reasonable judgment is likely to become, subject to a claim of infringement, then HMS may in its sole discretion: (a) obtain the right, at HMS’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If HMS, in its sole reasonable judgment, determines that none of the above options are commercially reasonable, then HMS may suspend or terminate Customer’s use of the Service, in which case HMS’s sole liability (in addition to its obligations under Section 9.2) shall be to provide Customer with a prorated refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Term. Sections 9.2 and 9.3 state HMS’s sole liability and the Customer Indemnified Parties’ exclusive remedy for infringement claims.
9.4 Indemnification Process. The party seeking indemnification must provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and must provide the indemnifying party with all information and assistance reasonably requested and otherwise cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice does not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim. However, any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent.
10.1 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (“INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF (A) THE AGGREGATE FEES PAID BY CUSTOMER FOR THE SERVICE DURING THE PREVIOUS SIX (6) MONTHS, OR (B) ONE HUNDRED AND 00/100 DOLLARS ($100.00). CUSTOMER’S SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICE OR ANY OTHER GRIEVANCE SHALL BE TERMINATION (WITHOUT REFUND) AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICE.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL HMS OR ITS AFFILIATES HAVE ANY LIABILITY TO CUSTOMER, ITS AUTHORIZED USERS, ITS REGISTERED CLIENTS OR ANY THIRD PARTY FOR ANY (A) LOST PROFITS, REVENUES, OR LOSS OF USE, OR LOSS OF DATA, OR INFORMATION (B) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (C) BODILY INJURY OR EMOTIONAL DISTRESS, OR (D) REPUTATIONAL HARM, HOWEVER CAUSED, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT HMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.3 Allocation of Risk. The provision of this Section 10 allocates the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
The Service may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that neither it nor any of its Authorized Users are named on any U.S. government denied-party list. Customer shall not permit any Authorized User to access or use any Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. Customer and its Authorized Users shall not use the Service to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
The U.S. Department of the Treasury, through the Office of Foreign Assets Control (“OFAC”), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries (each a “Sanctioned Country”) and certain individuals, organizations or entities, including without limitation, certain “Specially Designated Nationals” (“SDN”) listed by OFAC. If Customer is located in a Sanctioned Country or is listed as an SDN, Customer is prohibited from registering or signing up with, subscribing to, or using the Service. If HMS determines that the Service is being used by prohibited persons, HMS will terminate any impacted accounts. HMS reserves the right to also provide notification of any such usage to the US DOT/OFAC.
The Service is controlled and operated by HMS from its offices in the United States of America. Except as explicitly set forth herein, HMS makes no representations that the Service is appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws.
13.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Nebraska without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Omaha, Nebraska. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
13.2 MANDATORY ARBITRATION AND PROHIBITION ON CLASS ACTIONS. PLEASE READ THIS SECTION CAREFULLY, IT EXPLAINS THE TERMS UPON WHICH CUSTOMER IS WAIVING ITS RIGHT TO BRING CLAIMS ARISING UNDER THIS AGREEMENT IN A COURT OF LAW OR TO HAVE A JURY RESOLVE ANY DISPUTES HEREUNDER. Except if other applicable laws require otherwise, the parties hereto agree and understand that any dispute or claim related to Customer’s, its Authorized Users or Registered Client’s use of the Service, any disputes regarding any alleged breach of the Agreement, to the extent such dispute cannot otherwise be resolved, as well as any other action to enforce the terms of this Agreement or for the breach of this Agreement, shall be referred to final and binding arbitration, and not in court.
The Federal Arbitration Act and federal arbitration law apply to this agreement.
Any arbitration proceeding will take place in the State of Nebraska, subject to the laws of the State of Nebraska and will otherwise be governed by the then-current commercial arbitration rules of the American Arbitration Association, and the parties hereto expressly waive their rights, if any, to have any such matters heard by a court or jury, or administrative agency whether federal or state. The parties in any arbitration to enforce this Agreement or remedy its breach will equally share the costs associated with such arbitration proceedings; provided, that, each party shall pay its own attorney’s fees. Within fourteen (14) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association.
All parties agree that any dispute resolution proceedings (including any arbitrations and any court proceedings) will be conducted only on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. The parties also agree that Customer and HMS may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
13.3 Notice. HMS may give notices to Customer related to the Service through email, text, in-app notifications, or by posting them on the HMS website or through the Service and such electronic notices shall satisfy any legal requirement that such notices be made in writing. Notices to HMS shall be sent to HMS Legal at legal@HMS.com with a copy sent first class, airmail, or overnight courier to HMS Solutions, Inc., 11818 I Street, Omaha, NE 68137, c/o: Legal Department.
13.4 Publicity. HMS may include Customer’s name and logo in HMS’s online customer list and in print and electronic marketing materials.
13.5 Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this Section, a Customer’s Authorized Users and its Registered Clients are not third-party beneficiaries to Customer’s rights under this Agreement.
13.6 Force Majeure. HMS shall not be liable to Customer for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of HMS, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). HMS shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). HMS shall promptly notify Customer and make reasonable efforts to mitigate the effects of the Force Majeure Event.
13.7 Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
13.8 Assignment. Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the other party’s express written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign this Agreement and all Order Forms under this Agreement upon written notice without the other party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
13.9 Modifications. HMS reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy governing the use of the Service, at any time, by posting the new terms on the Service. The most current version of this Agreement will be located on this webpage. Customer acknowledges and agrees that its access to or use of the Service is governed by the then-current Agreement that is effective at the time of Customer’s access to or use of the Service. If HMS makes material changes to this Agreement, it will notify Customer by updating the “Updated” date indicated at the top of this page with the date that revisions to this Agreement were last made. HMS will not notify Customer of any such changes by email or other personal contact, but it reserves the right to do so. Customer should revisit this Agreement on a regular basis as revised versions will be binding upon Customer. Any such modification will be effective upon HMS’s posting of such new terms. Customer understands and agrees that its continued access to or use of the Service after the effective date of modifications to this Agreement indicates Customer’s acceptance of the modifications.
13.10 Third-Party Services. The Service may use or provide access to one or more third-parties to process payments, process account or user registrations, or provide other services. The use of such third-party services are subject to the third-party’s terms of service. Any disputes arising regarding a third-party’s services must be resolved directly between Customer and the third-party. HMS disclaims all warranties or representations regarding any third-party services. HMS, in its sole discretion, and without notice to Customer, may subcontract any Services to be performed by a third-party.
13.12 Entire Agreement. This Agreement, including all attachments, exhibits, addendums, and any Order Form(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. To the extent of any conflict or inconsistency between the provisions of the Agreement and any Order Form, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process, web portal, or any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.