Customer Terms of Service Agreement
Last Modified: March 15, 2018
These Cytracom Terms of Service and Conditions, together with any exhibits or addendums, proposals, order forms, service activation forms, price schedules, policies, or other supplemental documents incorporated herein by reference and published by Cytracom from time to time (collectively, the “Agreement”) constitutes the entire agreement between Cytracom, LLC (“we,” “us” or “Cytracom”) and the party identified in the associated proposal or service activation form (“you,” “user,” “Customer” or “Subscriber”) regarding Cytracom’s Services (defined herein).
ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE AND CONDITIONS: (1) SIGNING A PROPOSAL OR SERVICE ACTIVATION FORM INDICATING THAT YOU HAVE READ AND ACCEPTED THE TERMS OF SERVICE AND CONDITIONS, (2) ACCEPTING THE TERMS OF SERVICE AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE THE SERVICES, (3) USING THE SERVICES AS DESCRIBED HEREIN. THROUGH ANY OF THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.
1. DEFINITIONS
1.1 “Device” or “Equipment” means any IP telephone, multimedia terminal adapter, analog telephone adapter, switch, router, or any other IP connection device provided by Cytracom or used in conjunction with the Services.
1.2 “Documentation” means any documents, including user manuals, relating to the Services that are made available to Customer by Cytracom in any medium or manner.
1.3 “Services” means those services provided to you by Cytracom as described in any proposal, order form, or service activation form, or addendum thereto, including but not limited to VOIP services and any associated software, hardware or web-based platform.
1.4 “Software” means any proprietary software owned or licensed by Cytracom, or sublicensed by Cytracom under this Agreement, which is provided to Customer or otherwise used by Customer in conjunction with the Services.
2. YOUR REPRESENTATIONS. By activating or using the Services and entering into this Agreement, you represent and warrant that you are at least eighteen (18) years of age or of legal age to enter into this Agreement. You represent and warrant that your primary residence or business address is in the United States or Canada. You represent and warrant that your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company. You understand that providing false or incorrect information may result in delivery delays, the suspension or termination of the Services and the inability of a 911-dialed call to be correctly routed to emergency service personnel, as further explained below.
3. SERVICES
3.1 Term. Service is offered on a monthly basis. The term begins on the day Cytracom activates your Services and ends on the same day of the next month. You may terminate the Services if you provide written notice to Cytracom of your intent to terminate at least thirty (30) days prior to termination. Cytracom shall automatically renew the Services for additional monthly terms unless you cancel your Services before the end of the current term. You are purchasing the Services for full monthly terms, meaning that if you attempt to terminate the Services prior to the end of a monthly term, you will be responsible for the full month's charges to the end of the then-current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable.
3.2 Restrictions. You shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting, or in any way to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; (e) use the Software or Services in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or in any similar way; (f) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services; or (g) transfer the Services to another party without the prior written consent of Cytracom. If we believe that you have used the Services or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. Cytracom is able to provide the User, or Login name, of the account through which any unlawful or inappropriate activity was conducted. You hereby consent to our forwarding of any such communications and information to the appropriate authorities. In addition, Cytracom will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
3.3 Your Responsibilities. You are responsible for all use(s) related to your account. You accept full liability and responsibility for your actions or the actions of anyone who uses the Services via your account with or without your permission. Some features of the Services that incur additional fees are disabled and require enabling by a user. In the event that any user having administrative privileges under your account enables a service and incurs additional fees, you are solely liable for the resulting charges which will be billed to your account. You acknowledge that Cytracom will be sending you information, including your Password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your User IDs and Passwords. You agree to comply with the Terms of Use posted on the Cytracom web site, which is incorporated by reference into this Agreement. Changes to the Terms of Use may be made at any time without notice to you and are effective as provided therein.
3.4 Content. You are solely responsible for any liability that may arise from the content transmitted to any person, whether or not authorized by you, using the Services or the Device. You agree that you and anyone who uses the Services shall comply at all times with the laws, regulations, and written and electronic instructions for using the Services and the Device.
3.5 Storage of Information. Cytracom is not obligated to store your communications logs, voicemails, faxes, e-mails, or other messages. Any storage is done only for your convenience. We have no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications maintained or transmitted by the Services. Cytracom may establish limits as to the size of communications that may be transmitted or stored and the duration for which we store any communications.
3.6 Copyright; Trademark. The Services, and any firmware or software used to provide the Services or provided to you in conjunction with providing the Services, or embedded in the Device, the Documentation, our web site, and all content, information, documents, and materials on our web site (collectively, the “content”) are our exclusive property and are protected by copyright, trademark, and other intellectual property laws and international treaty provisions. All corporate names, service marks, trademarks, trade names, logos, and domain names (collectively, the “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you any right or license to use or reproduce the content or the marks without our express written permission.
3.7 Use Outside the United States and Canada. Although we encourage you to use of the Services to place calls to foreign countries, we do not presently offer or support the Services in any countries other than the United States and Canada. If you use the Services or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. Cytracom reserves the right to disconnect Services immediately if we determine, in our sole and absolute discretion, that you have used the Services or the Device outside of the United States or Canada.
3.8 Theft. You shall notify us immediately in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Services have been stolen or are otherwise being used in a fraudulent or unauthorized manner. You must provide your account number and a detailed description of the circumstances of the theft or fraudulent or unauthorized use. Failure to provide this information in a timely manner may result in the termination of your Services and additional charges to you. Until such time as we receive notice of the theft or fraudulent or unauthorized use, you will be responsible for all use of the Services and all fees incurred.
4. SERVICE DISTINCTIONS. The Services are not telephone services, and we provide them on a best efforts basis. Important distinctions exist between telephone service and the Services, including but not limited to different regulatory treatment and potential limits on your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance.
4.1 Emergency Services – 911 Dialing. You acknowledge and understand that Cytracom 911 dialing is different than traditional 911 service. A full 911 disclosure is attached as Addendum A to this Agreement. ACTIVATING YOUR E911 SERVICES VIA CYTRACOM’S WEBSITE IS AN ACKNOWLEDGEMENT THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, INCLUDING ADDENDUM A – CYTRACOM’S 911 DISCLOSURE AGREEMENT.
4.2 No 0+ Or Operator Assisted Calling. The Services do not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial-around calls. The Services may not support 311, 511, and other x11 services (other than as expressly set forth herein) in one or more service areas.
4.3 No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. Phone numbers you transfer from your local phone company may be listed. Reverse directories may not permit the use of your phone number to look up your address.
4.4 Incompatibilities. The Services are not compatible with all non-voice communications equipment, including but not limited to, some home and office security systems that are set up to make automatic phone calls, emergency phones in elevators, some aspects of satellite TV systems, digital entertainment systems, fax machines, modems and medical monitoring devices. By accepting this Agreement, you waive any claim you may have against Cytracom for interference with or disruption of such systems due to the Services. There may also be other services with which the Services may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Services. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Services with any particular broadband service.
4.5 Use Outside the U.S. As previously noted, there are limitations with regard to the Services’ access to 911 dialing. The Services do not provide access to emergency services in any country outside of the United States. Cytracom disclaims any obligation to provide you with access to emergency services in any jurisdiction other than the United States.
5. DEVICES AND EQUIPMENT
5.1 Ownership and Device Credits. At the time you activate the Services, you will be given a number of credits corresponding to the number of seats purchased for your account, each credit being a dollar amount sufficient to obtain a standard Device (“Credit”). You may exchange multiple Credits for the corresponding number of standard Devices. You may also choose to purchase one or more upgraded Devices that deviate from the standard Device and will be charged an additional fee for such upgraded Device. You will own the Device and bear all risk of loss, theft, casualty, or damage to the Device, from the time it is shipped to you. In the event your Device does not work properly, you must promptly notify Cytracom and return it in exchange for a replacement Device of the same or higher value, at Cytracom’s sole discretion. Your only remedy for a defective Device is a replacement Device. Thirty-six (36) months following the activation of your Services, you will be allotted additional Credits corresponding to the number of seats purchased for your account and these Credits may be redeemed for upgraded or replacement Devices. To receive the maximum amount of your additional Credits , you must return your current Devices to Cytracom in conjunction with redemption of the Credits. In the event the Services are terminated, we reserve the right to request return of your current Devices or repayment of the full amount of your most recently redeemed Credits.
5.2 Usage. The Device is exclusively for use in connection with the Services. You have not been granted any license to use the Software other than a nontransferable, revocable license to use the Software in object code form (without modification) strictly in accordance with the Agreement. In the event you choose to utilize any device in conjunction with the Device that is not provided to you by Cytracom, including but not limited to interface devices, Cytracom shall have no responsibility for any damages you suffer as a result of using such additional device and you shall indemnify and hold us harmless against any and all liability arising out of such use. You shall not change the electronic serial number or equipment identifier of the Device or use the Device in a manner inconsistent with its intended purpose. You are solely responsible for maintaining the Device and any additional equipment, including any necessary system or software upgrades, patches, or other fixes, which are or may be necessary to access the Services.
5.3 Customer-Provided Devices. Customer who utilize the Services without a Device provided by Cytracom are required to obtain approval for their device from Cytracom in writing.
6. BILLING AND FEES
6.1 Billing. At the time the Services are activated, you must provide a valid email address and a credit or debit card number that is accepted by Cytracom. Your initial invoice may be paid by check. All subsequent invoices will be billed to the credit or debit card we have on file. Cytracom reserves the right to stop accepting credit or debit cards from certain issuers and to request that you provide a different credit or debit card for billing purposes. Other than as provided herein, all charges will be billed on a monthly basis in advance to your credit or debit card, including but not limited to activation fees, monthly fees for Services, international usage charges, advanced feature charges, equipment purchases, termination fees, shipping and handling charges, applicable taxes, and surcharges. The amount of applicable fees and charges will be provided on your proposal or service activation form, as well as your invoices, and may change from time to time. Monthly invoices will be sent to the email address you have provided. Cytracom reserves the right to charge your account more frequently than once per month in the event your charges exceed $1000. In the event your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is cancelled or replaced due to loss or theft, you must advise us immediately to avoid suspension or termination of the Services.
6.2 Notices. In the event you provide a debit card for automatic withdrawals of your monthly charges, you waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. We may send notices to you periodically regarding your billing, but we are not obligated to do so and may cease or change the notices at any time.
6.3 Automatic charges. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT OR DEBIT CARD FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. This authorization remains valid until thirty (30) days after we receive written notification from you terminating our authority to charge your credit or debit card. Upon receiving this notification we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate the Services. We may terminate the Services at any time in our sole and absolute discretion if any charge to your credit card is declined or reversed, your credit or debit card expires and you haven’t provided a new credit or debit card, or in the event of non-payment of any account charges.
6.4 Amounts. Fees and charges will be provided initially on your Service Activation Form and may change from time to time. New pricing will be effective the next day following posting to the web site and will be applied to the next full monthly term.
6.5 Usage and Overages. Any usage-based charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our web site. Usage-based charges and any applicable overages will be billed monthly in arrears. Cytracom strongly recommends that you review the terms of your applicable plan with regard to overages. Different plans have different caps and different mechanisms and charges for overages.
6.6 Taxes. Customer is responsible for, and shall pay are any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Services. Such amounts are in addition to payment for the Services will be billed to you. If you are exempt from payment of such taxes, you will provide us with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
6.7 Billing Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any Cytracom charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following email address: billing@Cytracom.com.
6.8 Collection. In the event the Services are terminated, you remain fully liable to us for all charges incurred under this agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
6.9 Payphone charges. We reserve the right to charge you for any tolls or fees resulting from calls you receive from public payphones.
6.10 Toll Free calls. If you elect to use any “Toll Free” feature offered by Cytracom, we are entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as deemed appropriate in our sole discretion. Unless otherwise agreed or otherwise indicated on Cytracom’s web site, Toll Free usage will be billed at $0.039 per minute.
6.11 Directory calls (411). You will be charged $1.50 for each call made to Cytracom directory assistance.
6.12 Conference Bridge calls. You will be charged $0.039 per minute for each caller who dials into a conference bridge operated by you. The per minute usage fee will be calculated based on the number of all participants, including both on network and off network participants.
7. REPRESENTATIONS AND WARRANTIES
7.1 WARRANTIES. OTHER THAN AS SET FORTH HEREIN, CYTRACOM MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICES OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIMS ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OR TRADE, COURSE OF DEALING, OR COURSE OR PERFORMANCE, OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. CYTRACOM DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. CYTRACOM DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS, RESELLERS, OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICE AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY CYTRACOM OR CYTRACOM’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST CYTRACOM TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
7.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL CYTRACOM BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, ANY LOSS OF CUSTOMERS, LOSS OF BUSINESS OPPORTUNITIES, OR PERCEIVED REPUTATIONAL DAMAGE RESULTING FROM THE USE OF AND/OR INABILITY TO USE THE SERVICES, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL CYTRACOM BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICES, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICES, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO CYTRACOM OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND CYTRACOM’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. CYTRACOM SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO CYTRACOM’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF CYTRACOM’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. CYTRACOM’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT CYTRACOM WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE CYTRACOM FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST CYTRACOM TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
7.3 INDEMNIFICATION. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICES AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CYTRACOM AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CYTRACOM FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, LOSS OF CUSTOMERS OR BUSINESS OPPORTUNITIES, REPUTATIONAL DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR RECKLESSNESS OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
7.4 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
7.5 Recording Conversations. Cytracom provides a function that allows a user or subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary from state to state. You are solely responsible for applying the local laws in the relevant jurisdiction when using this feature.
8. TERM AND TERMINATION
8.1 Termination. We reserve the right to suspend, discontinue, or terminate the Services and this Agreement at any time in our sole and absolute discretion. In the event that we discontinue or terminate the Services without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If the Services are discontinued or terminated as a result of your breach of this Agreement, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges and any applicable termination fee, all of which will immediately become due and payable. You may terminate the Services if you provide written notice to Cytracom of your intent to terminate at least thirty (30) days prior to termination.
8.2 Termination Fee. In the event you terminate the Services during the current monthly term, you may be charged an additional termination fee, in addition to the full month's charges to the end of the then-current term.
8.3 Device. If the Services are terminated, we reserve the right to request return of your current Devices or repayment of the full amount of your most recently redeemed Credits.
8.4 Number Transfer. Upon termination of the Services, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with the Services if your new service provider is able to accept such number, your account was terminated properly, your account is current and all charges and applicable termination fees have been paid, and you request the transfer at the time the Services are terminated.
9. DISPUTE RESOLUTION
9.1 Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the CYTRACOM Help Center at (877) 411-2987 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
9.2 Mediation. In the event any dispute or claim is unresolved pursuant to Section 9.1, the matter will be submitted to a mutually agreeable and recognized mediation service and you and Cytracom will jointly participate in the mediation process. If settlement cannot be reached through mediation, you and Cytracom will have the right to take such action as deemed appropriate, subject to Sections 9.3 and 9.4.
9.3 Arbitration. Cytracom and you agree to arbitrate any and all disputes and claims between you and Cytracom arising out of or relating to the Services or the Device that remain unresolved following the procedures outlined in Section 9.1 and 9.2. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. You and Cytracom are waiving the right to a trial by judge or jury This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and Cytracom, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “CYTRACOM,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this agreement or any prior agreements between you and Cytracom.
9.4 Formal Notice of Disputes. A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to Cytracom must be sent to Cytracom, attention “Legal,” by certified mail addressed to 450 Century Pkwy, Suite 100, Allen, TX 75013. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and Cytracom do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or Cytracom may commence an arbitration proceeding.
9.5 Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). The arbitration shall be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The arbitrator’s decision will be based on the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides, or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually. You may not bring claims as a plaintiff or class member in any purported class or representative proceeding. All claims for arbitration shall be submitted to and heard by an office of AAA in Collin County, Texas.
9.6 Statute of limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or relating to the Services or the Device must be filed within six (6) months of the date of occurrence of the event or facts giving rise to the dispute, or you waive the right to pursue a claim based upon such event, facts, or dispute.
10. GENERAL PROVISIONS
10.1 Severability. In the event any portion of this Agreement is held legally invalid or unenforceable, the remaining portions will remain valid and enforceable.
10.2 Entire Agreement. This Agreement, including all exhibits or addendums, proposals, order forms, service activation forms, price schedules, policies, or other supplemental documents incorporated herein by reference, as well as all future modifications, constitutes the sole agreement between you and Cytracom relating to the subject matter hereof and supersedes all previous writings and understandings.
10.3 Assignment. Cytracom may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Services or Device without our prior written agreement.
10.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, excluding its conflict of laws principles.
10.5 Survival. The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
10.6 Force majeure. Cytracom shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of Cytracom’s best efforts.
10.7 Privacy. Cytracom utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Cytracom is not liable for any lack of privacy which may be experienced with regard to the Services.
10.8 Changes to this Agreement. We may change the terms and conditions of this Agreement from time to time. Updated versions of the Agreement will be posted on the Cytracom web site and changes will be binding on you on the date they are posted. Cytracom will use its best efforts to inform you in advance by providing notice of such changes on the Cytracom web site. No further notice by Cytracom is required upon your continued use of the Services. Updated versions of the Agreement will supersede all previous versions of the Agreement as well as any previously agreed upon terms of service to the extent they are inconsistent with the updated Agreement.
ADDENDUM A
EMERGENCY SERVICES – 911 DIALING
IF YOU ARE NOT COMFORTABLE WITH THE LIMITATIONS OF THE 911 DIALING SERVICE, YOU SHOULD CONSIDER HAVING AN ALTERNATE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES OR TERMINATING THE SERVICES.
1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Services do not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as "911 Dialing" which is a limited emergency calling service available only on Cytracom -certified Devices or Equipment. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided Customer Premise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps, as described in this Agreement and on our website, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each Cytracom, LLC Device that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described below. You shall inform any guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the Cytracom 911 Dialing feature as compared with traditional 911 or E911 dialing. The documentation that accompanies each Device that you purchase may include a sticker concerning the potential non-availability of traditional 911 or E911 dialing (the "911 Sticker") that may be obtained and utilized at your option. It is your sole responsibility, in accordance with the instructions that accompany each Device, to place the 911 Sticker on each Device that you use with the Services. If you require additional 911 Stickers, please email us at customercare@cytracom.com with your account name and how many you need.
1.2 Registration of Physical Location Required. For each phone number that you use for the Services, you must register with Cytracom the physical location where you will be using the Services with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Services. Thereafter, you may register a new location by following the instructions from the "911" registration link on your Cytracom web account dashboard features page. For purposes of the 911 Dialing feature, you may only register one location at a time for each Device you use with the Services.
1.3 Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any Device that you are using with the Services, unless and until you take the appropriate steps to activate the 911 Dialing feature for that Device.
1.4 How Emergency Personnel are contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
1.5 Service Outages. (a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Services, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Services, including 911 Dialing. (b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Services, including 911 Dialing, from functioning. (c) Service Outage Due to Suspension or Termination of Your Cytracom, Account. Service outages due to suspension or termination of your account will prevent all Services, including 911 Dialing, from functioning. (d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Services are provided or otherwise impede the usage of the Services. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Services are impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Services, including the 911 Dialing feature, may not function. You acknowledge that Cytracom is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Services, and any loss of service, including 911 dialing that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Services, you will continue to be responsible for payment of the Service charges unless and until you terminate the Services in accordance with this Agreement. (e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Services, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
1.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.
1.7 Activation Required for New or Added Devices. 911 Dialing does not function for any new Device added to your account, unless and until you take the appropriate steps to activate the 911 Dialing feature for that Device.
1.8 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Services as compared to traditional 911 dialing over traditional public telephone networks.
1.9 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Services are not operational for any reason.
1.10 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Services are not operational for any reason.
1.11 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Cytracom nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Cytracom, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney's fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Services, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Services to be able to use 911 Dialing or access emergency service personnel.
Marketing and Sales Agreement
Last Modified: February 20, 2018
These Terms and Conditions for Partner Agreement, together with the Partner Agreement and any exhibits or addendums, schedules, policies, or other supplemental documents incorporated herein by reference and published by Cytracom from time to time (collectively, the “Agreement”) constitutes the entire agreement between Cytracom, LLC (“we,” “us” or “Cytracom”) and the party identified in the associated Partner Agreement (“Representative”) regarding Cytracom’s Services (defined herein).
Cytracom is a Hosted PBX and VoIP provider that owns, develops and markets voice and data products and services as identified in Attachment A to the Partner Agreement (“Cytracom Services”). Cytracom and Representative desire that the parties enter into an agreement whereby Representative shall market the Services to end user customers (“Customers”) in the continental United States (“Territory”) pursuant to the terms and conditions of this Agreement.
1. DEFINITIONS. In addition to other terms defined herein, capitalized terms in this Agreement shall have the following meanings.
1.1 “Confidential Information” shall mean any and all technical and non-technical information provided by either party to the other, including that regarding either party or their affiliates, their business activities and operations or those of their customers and suppliers, and their trade secrets (including their customer lists, prospective customers, rates, price lists, network configuration, traffic volume, financial information, source code underlying the object code versions of the Software, service, processes, methods, knowledge, research, development or other information of a confidential and proprietary nature), and which at the time of disclosure is either (a) marked as being “confidential” or “proprietary,” (b) otherwise not generally known or readily ascertainable by proper means by third parties, including competitors or the general public, and includes trade secrets, or (c) under the circumstances of disclosure should reasonably be considered as the confidential or proprietary information of the disclosing party. Confidential Information shall not include information that is (i) already known by the recipient party without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient party, (iii) rightfully received from a third party without an obligation of confidentiality, (iv) approved by the other party for disclosure, or (v) is required to be disclosed pursuant to court order or order of governmental authority, provided that the receiving party shall use reasonable efforts to provide the disclosing party advance notice of any such disclosure and to permit and assist the disclosing party to intervene in any relevant proceedings to protect the disclosing party’s interests.
1.2 “Customer” shall mean a company or other entity that purchases the Services as a result of this Agreement and is subject to the terms of the Cytracom Customer Agreement.
1.3 “Documentation” shall mean any documents, including user manuals, relating to the Services that are made available to Customer by Cytracom or Representative in any medium or manner.
1.4 “Customer Agreement” shall mean Cytracom’s standard Customer Agreement as modified by Cytracom from time to time. All Customer Agreements will be between the Customer and Cytracom. Representative will not be a party to the Customer Agreements.
1.5 “Marks” shall mean the trademarks, service marks, trade names, logos and other identifiers of a party’s products and services.
1.6 “Proprietary Rights” shall mean any and all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights.
1.7 “Software” shall mean any proprietary software owned or licensed by Cytracom, or sublicensed by Cytracom under a Customer Agreement, which is provided to Customer or otherwise used by Customer in conjunction with the Services, and any copy, translation, modification, enhancement or other derivative work thereof made by Cytracom or any other third party, as well as any Documentation related thereto.
2. LICENSE GRANT
2.1 Representative License. Cytracom grants to Representative a revocable, nonexclusive, nontransferable, limited license within the Territory to market the Services to Customers for use only under the Customer Agreements.
2.2 Representative Duties. Representative shall:
(a) use only promotional material approved by Cytracom for purposes of promotion of the Services and avoid making any representations, warranties or guarantees regarding the Services except as specifically authorized by Cytracom. Representative agrees that it shall strictly adhere, and it shall ensure that its employees and agents strictly adhere, to the directives of Cytracom with respect to the content of any advertising or promotional materials concerning the Services;
(b) exert commercially reasonable efforts to promote sales and marketing to prospective Customers within the Territory. Commercially reasonable efforts shall include, without limitation (i) obtaining commitments and orders for the Services from Customers, (ii) obtaining Customer Agreements and order forms, credit applications, and/or other documentation from Customers as necessary to transfer ownership or establish an account with Cytracom, (iii) educating Customers and prospective Customers as to the benefits and advantages of using the Services, and (iv) providing such other services and assistance as Cytracom reasonably requires in furtherance of Representative’s obligations hereunder;
(c) comply with instructions provided by Cytracom regarding the subscription process for Customers, as updated by Cytracom from time to time;
(d) not alter in any way the terms and conditions of the Customer Agreements or represent to prospective Customers that such terms and conditions are subject to revision or are otherwise non-enforced or unenforceable;
(e) verify with Cytracom the availability and pricing structures of the Services in applicable jurisdictions before offering them to prospective Customers in any applicable jurisdiction;
(f) exert commercially reasonable efforts to assist Cytracom (i) in the collection of past-due invoices payable by Customers who subscribe to the Services as a direct result of Representative’s efforts (“Representative-Sold Customers”) and (ii) in ensuring effective subscription, registration, and provisioning of Representative-Sold Customers;
(g) strictly comply with all applicable laws and regulations in the Territory, or any nation, or political subdivision thereof, in which it engages in business in performing its responsibilities hereunder, including, but not limited to, the use, licensing, distribution, promotion, and marketing of the Services;
(h) conduct its business, and ensure that its employees and agents conduct their business, in a professional and lawful manner so as to maintain and increase the goodwill and reputation of Cytracom and the Services;
(i) not in any way disparage Cytracom, its products, or its agents or employees, including, without limitation, taking any action or making any statement the intent or reasonably foreseeable effect of which is to impugn or injure the reputation or goodwill of Cytracom or any of its agents or employees; and
(j) assist Cytracom in reporting performance under this Agreement and in developing mechanisms for measuring performance under this Agreement.
2.3 Limits of Authority. Representative shall not, without prior written approval from an authorized representative of Cytracom, take any of the following actions: (i) waive, alter, or change any provision of any Customer Agreement; (ii) modify or extend the amount of or time for the payment of any charge or fee required under any Customer Agreement; (iii) enter into any contract with Customers with respect to the Services; (iv) incur any expense or obligation in the name of Cytracom; or (v) use Cytracom’s Marks in connection with its business other than in the manner expressly authorized by Cytracom.
2.4 Audit. All business records maintained by Representative relating to the Services are subject to inspection at any reasonable time by Cytracom’s authorized representatives.
2.5 Personnel. Any act or omission or failure to act on the part of any employee, agent or contractor of Representative shall be deemed an act or omission or failure to act on the part of Representative.
3. ORDERS AND CYTRACOM RESPONSIBILITIES
3.1 Orders. Representative shall submit orders for Services to Cytracom, in accordance with the procedure made available on the Cytracom website. Orders shall not be binding on Cytracom unless and until accepted by Cytracom. Cytracom reserves the right to accept or reject new Customers at its sole discretion. Any additional or conflicting terms stated by Representative that are contrary to the terms and conditions of the Customer Agreement shall be void and of no effect. Cytracom will provision the Representative-Sold Customers to receive the Services as set forth on the written order in accordance with Cytracom’s customary procedures.
3.2 Prices. Services shall be priced according to Cytracom’s latest price list, unless otherwise agreed to in writing by Cytracom. All prices are subject to change, at Cytracom’s sole discretion. Changes in pricing will be posted on Cytracom’s website and shall be effective the day following the posting of such revised pricing.
3.3 Expenses. Representative shall pay all of its own expenses in connection with the solicitation of sales under this Agreement. Cytracom’s sole obligation is to pay the applicable Sales Commissions (as hereinafter defined).
3.4 Support. Cytracom will provide all support and maintenance services directly to the Customers.
3.5 Training and Materials. Cytracom may from time to time develop and provide Representative with promotional materials, product and technical information, and training relating to the Services.
3.6 Representative Customers. To the extent that Representative is engaged in providing additional managed services to customers and such services are outside of the telecommunications field (“Representative Services”), and Cytracom is aware of the nature of Representative Services, Cytracom will refrain from directly marketing or offering to any Representative-Sold Customers services that compete with or are substantially similar to Representative Services. Cytracom will not share any information regarding Representative-Sold Customers, or prospective Customers identified by Representative, with third parties for the purpose of allowing such third parties to directly market or offer to such Representative-Sold Customers or prospective Customers services that compete with or are substantially similar to Representative Services. Notwithstanding the foregoing, Cytracom is permitted to share information regarding Representative-Sold Customers to third parties for general marketing purposes.
4. FEES AND PAYMENT TERMS
4.1 Fees. The Customers will directly pay all fees to Cytracom. In turn, Cytracom agrees to pay Representative the commissions defined herein.
4.2 Commissions. Cytracom will pay Representative a flat rate for certain Services paid for by Representative-Sold Customers, at the rates listed on Attachment B to the Partner Agreement (“Commission”). Commissions will be based solely on revenue for the Services and shall not be based on any other monthly recurring charges, non-recurring charges, taxes, USF, E911, or other FCC or regulatory imposed charges. Commissions will be paid to Agent within thirty (30) days after the end of the calendar month in which they are earned. Cytracom will provide to Representative a written statement supporting the amount of the Commissions paid as soon as practicable following the end of the calendar month in which the Commissions were earned. Cytracom will assign to Representative an identification code (“Referral Code”) for identification and tracking of Representative-Sold Customers.
4.3 Collected Amounts. Representative acknowledges that Commissions are based solely on revenues actually received by Cytracom from Representative-Sold Customers. Representative acknowledges that any changes to the monthly subscription of any Representative-Sold Customers, or to the pricing schedules for the applicable Services, during the term of this Agreement may result in a decrease in the amount of the Commission for such Representative-Sold Customers. With respect to any overdue or unpaid amounts by Representative-Sold Customers that are deemed by Cytracom in its sole discretion to be uncollectible or are outstanding for ninety (90) days or more (“Uncollected Invoice”), Cytracom shall be entitled in its sole discretion to (i) withhold from or offset against Representative’s future Commissions an amount equal to Commissions paid on any Uncollected Invoice, or (ii) request that Representative refund to Cytracom the amount of any Commissions paid on any Uncollected Invoice.
4.4 Offset. Cytracom at any time may offset against all Commissions accrued or to accrue to Representative any indebtedness, payment or liability of Representative or its affiliates (including indebtedness resulting from advances and indemnification obligations by Representative described herein) arising in connection with Representative’s responsibilities under this Agreement that, in the opinion of Cytracom, are due or owed by Representative to Cytracom. Such withholding and setting off shall not create any cause of action against Cytracom.
4.5 Taxes. Each party shall be responsible for the payment of any and all of its own income taxes and income tax withholding or other taxes accessed against it based on its performance under this Agreement.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement shall begin on the Effective Date and shall continue until the Services are discontinued in the Territory, unless terminated early as provided below.
5.2 Early Termination. Either party may terminate this Agreement early as follows:
(a) Upon providing written notice to the other party no less than ten (10) days prior to termination, without cause;
(b) Immediately upon written notice to the other party in the event of a material breach by the other party (i) of the confidentiality or intellectual property ownership terms set forth herein, or (ii) of any obligation set forth herein, with written notice to the other party, if such material breach is not cured within fifteen (15) days after receipt of such written notice; or
(c) Immediately in the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium, or becomes incapacitated or guilty of a felony or crime of similar gravity, including but not limited to fraud or misrepresentation.
5.3 Post Termination Obligations. Upon termination or expiration of this Agreement, the rights and duties shall be as follows: (a) All rights and licenses granted to Representative under this Agreement shall terminate immediately and Representative shall immediately discontinue all promotion of the Services and all use of any Documentation, sales and marketing material and the like; (b) Representative shall discontinue all representation or statements from which it might be inferred that the relationship as identified in this Agreement exists between Representative and Cytracom and shall cease to promote, solicit orders for or procure orders for Services; (c) Representative shall immediately stop using all Cytracom Marks, and shall not use any mark confusingly similar to any Cytracom Marks; (d) Within five (5) business days following the termination or expiration of this Agreement, Representative shall return to Cytracom all copies of the Documentation, sales and marketing material and the like in whole or in part provided by Cytracom and destroy any additional copies (electronic or otherwise) of such software or other materials made by Representative; (e) Within five (5) business days following the termination or expiration of this Agreement, Representative shall provide to Cytracom all files, lists, and other materials containing information regarding Cytracom Customers and identified prospective Customers. All Customers shall remain Customers of Cytracom regardless of whether Representative’s relationship with Cytracom is terminated. Unless this Agreement is terminated by Cytracom pursuant to Section 5.2(ii) or 5.3(iii), all Commissions will continue to be paid to representative for revenues received from Representative-Sold Customers for Services.
5.4 Survival. The provisions of Sections 5.3, 5.4, 6, 7, 8.2-8.6, and 13 shall survive the expiration or termination of this Agreement by either party for any reason. All other rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration hereof.
6. PROPRIETARY RIGHTS.
6.1 Ownership. Representative acknowledges and agrees that Cytracom and its subsidiaries and/or licensors own and retain all Proprietary Rights in the Software, the Services, including the business model, technology, and proprietary concepts embodied in and relating to the Services, the Cytracom web sites, the Cytracom Marks, the Cytracom Confidential Information, Documentation, training materials, collateral or other related materials licensed or provided under this Agreement, and any copies, modifications, adaptations, derivative works, improvements and enhancements thereof, by whomever produced, and all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein (collectively, “Cytracom IP”). Representative does not acquire any rights, express or implied, in the Cytracom IP other than those specified in this Agreement. Representative hereby waives any claim that it may have had or has to title and ownership of any Proprietary Rights in and to the Cytracom IP. Representative shall not remove any copyright or similar notices on the Software and Documentation.
6.2 Joint Materials. Cytracom shall have the right to use Representative’s Marks on the Cytracom website to identify Representative as a marketer of the Services. Representative must obtain express written agreement from Cytracom prior to the use of any marketing and promotional materials using Cytracom’s Marks and Cytracom must provide express written approval of all such materials. All Marks will be represented accurately and without defacement. Except as expressly authorized herein, the parties will not use each other’s Marks. Each party retains all rights and title in and to the Marks held by such respective party and upon termination of the Agreement, each Party shall immediately cease use of the other Party’s Marks.
7. CONFIDENTIALITY. During the term of the Agreement and for three (3) years thereafter, each party will hold in confidence and will not use, reproduce, distribute, transmit, or disclose, directly or indirectly, the other party’s Confidential Information and may only disclose the other party’s Confidential Information to its employees or third party contractors with a need to know the information for the implementation of this Agreement and who are under a written obligation to abide by the confidentiality terms of this Agreement. Without limiting the foregoing, each party agrees that it will exercise the highest standard of care in protecting the other party’s Confidential Information. Confidential Information of Cytracom includes, but is not limited to, customer lists, price sheets, price quotes, information regarding Cytracom’s facilities, information relating to Cytracom Customers or prospective Customers, marking and business plans, projections, and all information developed or provided by Representative or Cytracom related to the Customers or the Representative-Sold Customers.
8. WARRANTIES, LIMITATIONS, AND INDEMNIFICATIONS
8.1 Customer Warranty. All warranties with respect to the Software or Services delivered to the Customer run directly to the Customer under the Customer Agreements. Representative shall not make any warranty on Cytracom’s behalf other than those which are consistent with Cytracom’s standard Customer Agreements.
8.2 Disclaimer. CYTRACOM DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR SERVICES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY REPRESENTATIVE OR THE CUSTOMER. NEITHER CYTRACOM NOR ITS SUPPLIERS MAKES ANY REPRESENTATION REGARDING THE ACCURACY, COMPLETENESS OR ERROR-FREE NATURE OF THE SOFTWARE. CYTRACOM IS NOT THE CREATOR OF THIRD PARTY SOFTWARE AND/OR THIRD PARTY DATABASES AND DOES NOT GIVE ANY WARRANTY, EXPRESS OR IMPLIED, IN RELATION TO THOSE ITEMS. NEITHER CYTRACOM NOR THE THIRD PARTY LICENSORS SHALL BE LIABLE FOR ANY DELAY, FAILURE IN PERFORMANCE OR INTERRUPTION OF SERVICES RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSE BEYOND ITS REASONABLE CONTROL. IN NO EVENT SHALL CYTRACOM BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY OF ANY CUSTOMER TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, ANY LOSS OF CUSTOMERS, LOSS OF BUSINESS OPPORTUNITIES, OR PERCEIVED REPUTATIONAL DAMAGE RESULTING FROM THE USE OF AND/OR INABILITY TO USE THE SERVICES.
8.3 Cytracom Indemnification. Subject to all exclusions and limitations provided herein, Cytracom shall indemnify Representative against, and hold Representative harmless from, all liabilities, claims, demands, costs and judgments (including reasonable attorney’s fees) and causes of action arising out of or resulting from: (i) any breach by Cytracom of any of its obligations under this Agreement, or (ii) the negligence or willful misconduct of Cytracom.
8.4 Representative Indemnification. Representative shall indemnify Cytracom against, and hold Cytracom harmless from, all liabilities, claims, demands, costs and judgments (including reasonable attorney’s fees) and causes of action arising out of or resulting from: (i) any breach by Representative of any of its obligations under this Agreement, or (ii) the negligence or willful misconduct of Representative.
8.5 Indemnification Procedure. The party seeking indemnification (“Indemnitee”) shall be obligated to give the other party (“Indemnitor”) prompt notice of any event giving rise to indemnification obligations of the Indemnitor and shall permit the Indemnitor the opportunity to defend and settle such potential or actual claim or demand.
8.6 LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 6 AND 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR LICENSORS BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL, PROFITS OR SAVINGS, LOSS OF DATA, DOWNTIME, DAMAGE TO OR REPLACEMENT OF EQUIPMENT AND PROPERTY ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, OR NON-PERFORMANCE OF ANY SERVICES PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH PARTY, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 6 AND 7, REPRESENTATIVE AGREES THAT CYTRACOM’S LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID BY REPRESENTATIVE-SOLD CUSTOMERS TO CYTRACOM FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACTIONABLE CLAIM GIVING RISE TO THE LIABILITY.
9. GENERAL PROVISIONS
9.1 Independent Contractor. Representative shall not have any right or authority, either express or implied, to assume or create, on Cytracom’s behalf, any obligation or responsibility of any kind or nature. Cytracom and Representative are independent contractors. Neither party is or shall claim to be a legal agent of the other, and neither shall have the right or authority to create any obligations for the other. This Agreement is not intended to constitute, create, give effect to or otherwise recognize a joint venture, partnership, or formal business entity of any kind between the parties.
9.2 Mediation. In the event any dispute or claim arises between Representative and Cytracom out of or relating to this Agreement that cannot be resolved informally between the parties, the matter will be submitted to a mutually agreeable and recognized mediation service and Representative and Cytracom will jointly participate in the mediation process. If settlement cannot be reached through mediation, Representative and Cytracom will have the right to take such action as deemed appropriate, subject to Section 9.3.
9.3 Arbitration. Cytracom and Representative agree to arbitrate any and all disputes and claims arising out of or relating to this Agreement that remain unresolved following mediation under Section 9.2. The arbitration shall be administered by the American Arbitration Association (“AAA”) and governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The arbitrator’s decision will be based on the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides, or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
9.4 Severability. In the event any portion of this Agreement is held legally invalid or unenforceable, the remaining portions will remain valid and enforceable.
9.5 Entire Agreement. This Agreement, including all exhibits or addendums, or other supplemental documents incorporated herein by reference, as well as all future modifications, constitutes the sole agreement between Cytracom and Representative relating to the subject matter hereof and supersedes all previous writings and understandings.
9.6 Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such assignment shall inure to the benefit of and be binding upon the assignee. Cytracom may assign this Agreement in connection with the sale of all or substantially all of its assets, or in connection with a merger or consolidation into or with another company provided that any such assignment shall inure to the benefit of and be binding upon the assignee.
9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, excluding its conflict of laws principles.
9.8 Force majeure. Both parties shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of the party’s best efforts. However, the party whose performance is delayed or affected shall use good faith efforts to minimize the effects of such delay.
9.9 Waiver. No failure or delay by any party in exercising any right hereunder shall operate as a waiver.
9.10 Changes to this Agreement. The Agreement may not be amended or modified except in writing, signed by both parties.
9.11 Interpretation. Neither this Agreement in its entirety nor any provision herein shall be construed against either party as the drafter or originator thereof. In the event of any inconsistency between this Agreement and the terms of any attachment or addendum, the terms of the attachment or addendum shall govern.
18289966v.2
Business Associates Agreement
Last Modified: March 19, 2018
This Business Associate Agreement (“Agreement”) applies to customers enrolled in the Cytracom Business Associates Program.
WITNESSETH
WHEREAS, Covered Entity is a “covered entity” as defined in the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder (“HIPAA”), and as described in the Health Information Technology for Economic and Clinical Health Act (“HITECH”) provisions of the American Recovery and Reinvestment Act of 2009 (“ARRA”); and
WHEREAS, Business Associate provides certain telephone and business communications services (the “Non-Voicemail Services”) for Covered Entity pursuant to an agreement (the “Services Agreement”), which services are conduit services and therefore do not make Business Associate a “business associate” of Covered Entity under HIPAA; and
WHEREAS, Business Associate also provides certain voicemail and voice storage services (the “Voicemail Services”) for Covered Entity pursuant to the Services Agreement, the performance of which involves the creation, receipt, maintenance, or transmission of certain Protected Health Information, as defined in 45 CFR 160.103 and limited to the information created or received by Business Associate from or on behalf of Covered Entity in connection with the Voicemail Services (“PHI”); and
WHEREAS, HIPAA requires that Covered Entity enter into written agreements with its business associates in order to regulate the use and disclosure of certain protected health information of Covered Entity related to the Voicemail Services; and
WHEREAS, Covered Entity and Business Associate agree to enter into this Agreement under the terms and conditions set forth herein to meet the applicable requirements for such business relationships under HIPAA, as related to the Voicemail Services.
NOW THEREFORE, for and in consideration of these premises, the Parties’ other mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are forever acknowledged and confessed, the Parties hereto acknowledge, covenant, and agree as follows:
1. Obligations of Business Associate
1.1. Permitted Uses and Disclosures of PHI. Business Associate shall use and disclose any PHI it may receive from Covered Entity to perform the Services and carry out the obligations of Business Associate under the Agreement, and in accordance with applicable federal and state laws, including but not limited to HIPAA, and the terms of this Agreement. Unless otherwise limited by this Agreement, Business Associate may also: (i) use the PHI in its possession for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, (ii) disclose the PHI in its possession to a third party for the purpose of Business Associate’s proper management and administration or to carry out the legal responsibilities of Business Associate, provided that such disclosures are Required by Law or that Business Associate has obtained reasonable written assurances (similar in form to this Agreement) from the third party to whom PHI is disclosed that the PHI will be held confidentially and the third party has agreed to notify Business Associate any instances of which it becomes aware in which the confidentiality of the information has been breached; and (iii) provide data aggregation services relating to the Health Care Operations of Covered Entity. Business Associate may de-identify any PHI covered by this Agreement without authorization from Covered Entity, provided that such de-identification is in strict accordance with the requirements of HIPAA, including without limitation 45 CFR § 164.514(b). Business Associate shall not use or further disclose PHI other than permitted or required by this Agreement or as otherwise required by law. To the extent Business Associate is to carry out any obligation of Covered Entity under Subpart E of 45 CFR Part 164, Business Associate shall comply with the requirements of Subpart E that apply to Covered Entity the performance of such obligation. Any such de-identified data will not be considered PHI covered by this Agreement. When using or disclosing PHI, Business Associate will make reasonable efforts to limit PHI to the minimum necessary for the use, disclosure, or request.
1.2 Safeguards. Business Associate will use all appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this Agreement or as required by law. Without limiting the foregoing, Business Associate shall implement and use appropriate administrative, physical and technical safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to reasonably and appropriately protect the confidentiality, integrity, and availability of the PHI and prevent the use or disclosure of PHI other than as set forth in this Agreement or as permitted or required by law.
1.3 Reporting Disclosures of PHI. In the event Business Associate, its agents, employees or contractors use or disclose PHI in violation of this Agreement, Business Associate shall report such use or disclosure to Covered Entity promptly after Business Associate becomes aware of such violation, including the circumstances surrounding the use or disclosure and a description of the PHI inappropriately used or disclosed. Business Associate shall report to Covered Entity any Security Incident of which it becomes aware, provided that Business Associate shall only be required to report unsuccessful Security Incidents upon request by Covered Entity, and any such report may be in summary form generally describing the types and frequency of such unsuccessful Security Incidents. Business Associate agrees to notify Covered Entity in the event of any breach of unsecured PHI held by or under the control of Business Associate, including the identity of the affected individual(s) and all other relevant information, within three (3) business days of the first day the “breach of unsecured PHI” is known, or reasonably should have been known, to Business Associate. Unless the context of the relationship specifically requires otherwise, the parties disclaim any agency relationship between Covered Entity and Business Associate.
1.4 Mitigation of Harmful Effects. Business Associate shall establish procedures for mitigating harmful effects of any improper use or disclosure of PHI that Business Associate reports to Covered Entity.
1.5 Third Party Agreements. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), Business Associate shall require all of its subcontractors and agents that receive, use or have access to PHI to: (i) agree in writing to adhere to the same or substantially similar restrictions and conditions applicable to the use or disclosure of such PHI as required herein, that is, the restrictions and conditions applicable to Business Associate with respect to PHI under the terms of this Agreement, and (ii) implement reasonable and appropriate safeguards to protect PHI.
1.6 Access to Information. Within ten (10) business days of a request by Covered Entity for access to PHI about an individual contained in a Designated Record Set (as defined in 45 C.F.R. 164.501) in Business Associate’s possession, Business Associate shall make available to Covered Entity such PHI for so long as such information is maintained in the Designated Record Set by Business Associate. In the event any individual requests access to his or her own PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity upon receipt of same. Business Associate shall reasonably cooperate with Covered Entity to provide an individual, at Covered Entity’s written direction, with access to the individual’s PHI in Business Associate’s possession within ten (10) business days of Business Associate’s receipt of written instructions for same from Covered Entity. Any denials of access to PHI requested shall be the responsibility of Covered Entity.
1.7 Amendment of PHI. Business Associate agrees to make PHI in a Designated Record Set available for amendment and to incorporate any appropriate amendments at the direction of and in the time and manner designated by Covered Entity. Business Associate further agrees to forward to Covered Entity any request for amendment of PHI made directly by an individual to Business Associate upon receipt of such request, and take no action on such request until directed by Covered Entity.
1.8 Accounting of Disclosures. Business Associate agrees to document disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 CFR 164.528 and to provide Covered Entity with an accounting of such disclosures in the time and manner designated by Covered Entity. Business Associate further agrees to forward to Covered Entity any request for an accounting of disclosures of PHI made directly by an individual to Business Associate upon receipt of such request. To the extent Business Associate maintains PHI in an electronic health record, Business Associate agrees to account for all disclosures of such PHI upon the request of an individual for a period of at least three (3) years prior to such request (but no earlier than the effective date of this Agreement), as required by HITECH; such accounting shall be directly to the individual if requested by Covered Entity.
1.9 Access to Books and Records. Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services for purposes of determining compliance with the requirements of HIPAA.
1.10 Obligations under HITECH. Business Associate acknowledges that it is subject to the security and data breach provisions of HIPAA and agrees to abide thereby. Business Associate also agrees to abide by all of the privacy provisions set forth in HITECH, including, without limitation, all restrictions on marketing, all restrictions on receipt of remuneration in exchange for PHI, and all requirements relating to limited data sets and minimum necessary disclosures.
2. Obligations of Covered Entity
2.1 Notice of Privacy Practices. Covered Entity agrees to provide Business Associate with a copy of Covered Entity’s “Notice of Privacy Practices,” required to be provided to individuals in accordance with 45 CFR 164.520, as well as any subsequent changes to such notice.
2.2 Changes to or Restrictions on Use or Disclosure of PHI. Covered Entity will provide Business Associate with any changes to, or revocation of, permission to use or disclose PHI if such changes affect Business Associate’s permitted or required uses or disclosures. Covered Entity will further notify Business Associate of any restriction to the use or disclosure of PHI agreed to by Covered Entity in accordance with the provisions of 45 CFR 164.522, and any restriction requested by an individual which Covered Entity is required to comply with in accordance with the provisions of HITECH.
2.3 Requested Uses or Disclosures of PHI. Covered Entity shall not request Business Associate to use or disclose PHI in any manner inconsistent with state or federal law.
2.4 PHI. Covered Entity shall use commercially reasonable efforts not to disclose PHI to Business Associate unless such PHI is necessary for Business Associate to perform the Services.
3. Term and Termination
3.1 Term. This Agreement shall be deemed effective on the Effective Date and shall continue in effect until all obligations of the Parties have been met, unless otherwise terminated under the terms and conditions set forth herein.
3.2 Termination for Cause. If a Party breaches a provision of this Agreement, the non-breaching Party shall immediately notify the breaching Party of the nature of the breach. With respect to such breach or violation: (i) the breaching Party shall take reasonable steps to cure such breach or end such violation within thirty (30) days of receiving notice; or (ii) if such steps are unsuccessful or if cure is not possible, promptly, upon written notice, the non-breaching Party may, if feasible, terminate this Agreement and all of the provisions of the Services Agreement that involve the use or disclosure of PHI; or (iii) if such termination is not feasible, the non-breaching Party shall report the Party’s breach or violation to the Secretary of the Department of Health and Human Services. The non-breaching Party shall notify the breaching Party prior to reporting the breach or violation to the Secretary of the Department of Health and Human Services.
3.3 Effect of Termination and Obligations of Business Associate Upon Termination. Upon termination of this Agreement, Business Associate shall return or destroy all PHI created or received by Business Associate, its agents and subcontractors to the extent feasible, without retaining any copies of such PHI. If Business Associate and Covered Entity mutually agree that return or destruction of the PHI is not reasonably feasible, Business Associate agrees to extend the protections of PHI under this Agreement and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible.
The obligations of Business Associate under this Section 3.3 shall survive the termination of this Agreement.
4. Miscellaneous Provisions
4.1 Definitions and Interpretation; Indemnification. All words used herein but not defined herein shall have the meanings set out in HIPAA, and this Agreement shall be interpreted in such a fashion as to cause the parties to be in compliance with HIPAA.
4.2 Assignment. Neither party shall have the right to assign its rights or obligations under this Agreement without the prior written consent of the other party, and any such attempted assignment shall be void.
4.3 Amendment. This Agreement shall not be modified or amended except by a written document executed by each of the parties to this Agreement, and such written modification or amendment shall be attached hereto.
4.4 Waiver of Provisions. Any waiver of any terms and conditions of this Agreement must be in writing, and signed by both Business Associate and Covered Entity. The waiver of any of the terms and conditions of this Agreement shall not be construed as a waiver of any other terms and conditions of the Agreement.
4.5 Parties In Interest; No Third-Party Beneficiaries. Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and permitted assigns of the parties to this Agreement. Neither this Agreement nor any other agreement contemplated in this Agreement shall be deemed to confer upon any person not a party to this Agreement any rights or remedies contained in this Agreement.
4.6 Governing Law. This Agreement, the rights and obligations of the parties hereto, and the entire relationship between the parties relating hereto shall be governed by and construed and enforced in accordance with the substantive laws (but not the rules governing conflicts of laws) of the state of Texas and with HIPAA.
4.7 Notice. Whenever this Agreement requires or permits any notice, request, or demand from one party to another, the notice, request, or demand must be in writing to be effective and shall be deemed to be delivered and received (i) if personally delivered or if delivered by telex, telegram, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) if delivered by mail (whether actually received or not), at the close of business on the third business day next following the day when placed in the mail, postage prepaid, certified or registered, addressed to the appropriate party, at the address of such party set forth below (or at such other address as such party may designate by written notice to all other parties in accordance herewith):
If to Covered Entity:
Attn: Privacy Officer
If to Business Associate: Cytracom, LLC
Attn: Privacy Officer
450 Century Pkwy, Suite 100
Allen, TX 75013
4.8 Authorization. The Parties executing this Agreement hereby warrant that they have the authority to execute this Agreement and that their execution of this Agreement does not violate any bylaws, rules, or regulations applicable to them.
4.9 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date the customer is enrolled in the Business Associates Program.
