Digital Screening and Nurse Triage
Master Services Agreement
- The Client has requested assistance in the assessment of individuals returning to work, events, locations, and/or continuing to work during and after the COVID-19 pandemic.
- The Company and/or its licensors have developed an assessment application and tool (the “Application”) with accompanying, optional triage services as described, to assist clients in the assessment of individuals.
- The Client desires the use of the Application and to engage the Company for the Services, subject to the terms and conditions of this Agreement.
- The Client can choose to Opt-In or Opt-Out for Usage-Based Services.
NOW, THEREFORE, based on the premises and the terms and conditions herein, the parties hereby agree as follows:
SERVICE DATE AND TERM
1.1 Term: The initial term of this Agreement is one month, and shall automatically renew at the end of the term and each month thereafter, unless one party notifies the other party of its intent not to renew at least fifteen (15) days prior to the end of this Agreement.
2.1 Scope of Services to be Provided: Subject to the terms and conditions of this Agreement, and solely for the duration of this Agreement, the Company shall use commercially reasonable efforts to provide authorized Users of the Client (each, a “User,” collectively, ”Users”) access to the Application and the Services. The term “Services” includes all the software, applications, widgets, tools, and functionality made available through the Services, including our platform, the help desk system, and related support services. Any new features which augment or enhance the current Services, including the release of new features or products, including those that require additional fees, are also included in the term “Services.” However, the term “Services” does not include Professional Services. “Professional Services” means any services we provide in addition to your use of the above-mentioned software, such as human resources consultations, which will be governed by a separate agreement. Subject to the terms and conditions of this Agreement and solely for the duration of this Agreement, the Company hereby grants the Client and Users a non-exclusive, non-sublicensable, nontransferable, license to access and use the Application, solely for internal business purposes as set forth herein. In addition, if the Application or the Company directs a User to call one of the Company’s nurses, then a User shall have access to the Services. The Company will report to the Client the use and results of the Application and the Services on a regular basis, as agreed between the parties.
2.2 Medical and Emergency Care Exclusion: Neither the Application nor the Services are intended to provide medical or emergency care for any conditions. If the Company receives a call that is assessed as an emergency, the Company will immediately direct the User to hang up and access the local emergency medical services. The Client shall make Users aware of this policy so as not to delay emergency care.
III. PAYMENT FOR SERVICES
3.1 Fees: The Client shall pay the Company the fees described on the Services Quote.
3.2 Taxes: Prices are exclusive of taxes, impositions and other charges, including: sales, use, excise, value added and similar taxes or charges imposed by any government authority. If the Company shall be liable for or shall pay any of the foregoing, same shall be immediately paid by the Client to the Company in addition to the price of the Services.
3.3 Payments and Terms: Payment from the Client to the Company shall be due: (a) for Fees (as defined on the Services Quote), on a monthly basis, charged on a day of each month selected by the Company for Services for that month, and (b) for Usage Based Fees (as defined on Services Quote) and only if client agrees to Opt-In, on a monthly basis, charged on a day of the month selected by the Company for usage based fees for the preceding month. The amounts stated on the Services Quote, plus any taxes, assessment or charges, will be charged to the Client’s credit card or ACH on file with the Company. The Company shall also have the right to charge the Client’s credit card or ACH for any partial months or weeks. The Client shall pay the entire amount due to the Company without offset or deduction. If the Company believes in good faith that the Client‘s ability to make payments may be impaired or if the Client shall fail to pay any invoice when due, the Company may suspend Service until such payment is made or cancel Service, and the Client shall remain liable to pay for any Service already rendered. Any payment received from the Client may be applied by the Company against any obligation owing from the Client to the Company. The Client shall pay interest on any amount due to the Company not paid when due from the due date to the date of payment at the rate of one and one-half (1-1/2%) percent per month or such lower rate as may be the maximum allowable by law. Notwithstanding the foregoing or anything herein, if the Client fails to make payment when due, the Company may pursue any legal or equitable remedies, in which event the Company shall be entitled to reimbursement for costs of collection and reasonable attorneys’ fees.
IV. CONFIDENTIALITY, COMPLIANCE, AND IP RIGHTS
4.1 Obligation to Maintain Confidential Information: The Company and the Client recognize that in the course of their discussions and in the performance of the terms and conditions of this Agreement, it may become necessary for either or both parties to disclose Confidential Information orally and/or in writing. As used herein, “Confidential Information” means any information of either party that is a confidential or proprietary nature, including, without limitation, the Application and the Services, and any information regarding Users, customers, vendors, suppliers and or business partners. Both parties intend that any Confidential Information disclosed by either party shall be used by the other party only in furtherance of this Agreement and the services to be provided hereunder. No Confidential Information may be disclosed to third parties without the express written consent of the disclosing party. The Company and the Client agree that with respect to exchanges of Confidential Information under this Agreement, they may each be considered a disclosing and/or receiving party, depending upon the context.
4.2 Equitable and Legal Relief: Each party acknowledges that all the disclosing party’s Confidential Information is owned solely by the disclosing party (and/or its licensors), and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. When either party becomes aware of a breach of this section, they shall immediately notify the other party to determine the potential or realized impact to the other party and potential remedies that may be available to avoid unnecessary legal action. A disclosing party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining breach of this Agreement and/or disclosure of the Confidential Information. Notwithstanding the foregoing, each party shall also have the right to pursue any other rights or remedies available at law or in equity for such a breach. In the event any action shall be brought by either party hereto against the other on account of the breach of any provisions, covenant or condition herein contained, the prevailing party in said action shall be reimbursed by the other party for all reasonable costs and expenses incurred in connection with litigation, including, without limitation, reasonable attorneys’ fees.
4.3 Compliance. The Client represents and warrants to the Company at all times during the effectiveness of this Agreement the Client shall comply with all applicable federal, state and local laws, rules, regulations and ordinances, including, without limitation, any and all laws, rules, regulations and ordinances governing workplace injuries and drug screening.
4.4 Use. The Client will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Application or any software, documentation or data related to the Application (“Software”); (ii) modify, translate, or create derivative works based on the Application or any Software; (iii) use the Application or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or the Application in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with the Application or the Services. For the avoidance of doubt, the Application, and the Services and the Software, including all user-visible aspects of the Application, are the Confidential Information of the Company.
4.5 IP Rights. The Client shall own all right, title and interest in and to the specific User information transmitted through the Application and the Services (the “Customer Data”). The Company (or its licensors) shall own and retain all right, title and interest in and to (i) the Application, the Software and the Services and all improvements, enhancements or modifications thereto and derivative works thereof, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent the Client acquires any right, title or interest in any Services IP, the Client hereby irrevocably assigns, transfers and conveys all of its right, title and interest in and to such Services IP to the Company. The Client hereby grants to the Company a non-exclusive, transferable, sublicensable, worldwide and royalty-free perpetual license to use and otherwise exploit (i) Customer Data to provide the Services to the Client hereunder and as necessary or useful to monitor and improve the Application, Software and/or the Services, both during and after the Term, and (ii) to use anonymized, de-identified Customer Data for any purpose, including, without limitation, the improvement of the Services or for the provision of other services. For the avoidance of doubt, the Company may use, reproduce and disclose Application-, Software- and Services-related information, data and material that is anonymized, deidentified, or otherwise rendered not reasonably associated or linked to an identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by the Company.
5.1 Indemnification for the Client: The Company will defend, protect, indemnify and hold the Client harmless for, from and against any liability, damages, harm, claims, proceedings, lawsuits, costs, or expenses (including, without limitation, reasonable attorneys’ fees and costs) (“Claims”) solely directly relating to the Company’s gross negligence or intentional misconduct arising out of the Services.
5.2 Indemnification for the Company: The Client will defend, protect, indemnify and hold the Company harmless for, from and against any Claims arising directly or indirectly out of or related to: (a) any breach of this Agreement; (b) any breach or failure of the Client to protect Users personal information; (c) any Claims by Users, the Client’s employees or third parties regarding the use or misuse of the Application or the Services, including, without limitation, any claims that the Application did not properly assess a Users return to or continuation of employment; and/or (d) the failure of the Client to comply with any applicable federal, state or local laws, rules or regulations. The Client expressly acknowledges and agrees that any and all decisions regarding having a user return to their organization or event and/or continue to work are solely and exclusively vested in the Client and the Company has no decision making authority over such decisions.
6.1 Termination for Convenience: Either party may terminate this Agreement at any time after the initial month term for any reason upon fifteen (15) days written notice to the other party (email is acceptable).
6.2 Termination by The Company: The Company may terminate this Agreement for cause immediately if the Client fails to perform as required by the terms herein, including, without limitation, any payment obligations hereunder. The Company reserves the right to terminate or suspend the performance of Services or access to the Application in the event that the Client’s credit card is declined or ACH payment is rejected. In any event, the Client shall pay the Company for any services performed through the termination date.
VII. CHOICE OF LAW
This Agreement shall be construed and enforced in accordance with the laws of the State of Arizona. Venue for any legal action relating to this Agreement shall lie exclusively in a court of appropriate jurisdiction within Phoenix, Arizona. The parties hereby irrevocably attorn to the jurisdiction of such court for any disputes arising out of this Agreement.
VIII. FORCE MAJEURE
If either party to this Agreement is rendered unable, wholly or in part, by an event of force majeure or any other cause not reasonably within its control, to perform or comply with any obligation or condition of this Agreement, such party shall, upon giving notice and reasonably full particulars to the other parties, be relieved of such obligation or condition during the continuance of such inability. The term “force majeure” shall include Acts of God, natural disasters, pandemics, fire, accidents, breakdowns, strikes and any other industrial, civil or public disturbance, inability to obtain or maintain telephonic communication because of power failure or failure by the telephone company, inability to obtain materials, supplies, permits of labor, and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military. Notwithstanding the foregoing, this Section shall not apply to any payment obligations of the Client hereunder.
When either party wishes to give notice to the other, each such notice shall be in writing and delivered by overnight delivery or registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
As to the Company: Company Nurse, LLC
8360 E Via De Ventura
Scottsdale, AZ 85258
Attn: Chief Executive Officer
Any such notice is effective when received by the addressee.
No rights, duties, agreements or obligations of either party hereunder may be assigned or transferred by either party, by operation of law, merger or otherwise, without the prior written consent of the other; provided, however, that the Company may assign, transfer or convey this Agreement in connection with a merger, sale of all or substantially all of the Company’s assets or sale of all or substantially all of the Company’s membership interests. Any attempted or purported assignment in contravention hereof shall be void. Notwithstanding the foregoing, the Company’s obligations under this Agreement may be performed by divisions, subsidiaries or affiliates of the Company. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.