Terms of Service Agreement

By creating an Account or using the Services, You (or, if applicable, the entity You are acting for or on behalf of) accept that the terms, obligations, rights and conditions specified below will form a legally binding agreement (“the Agreement” or “this Agreement”) between You and Cato Systems LLC ( the “Provider” or “Cato Systems”).

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND, “YOU” AND “YOUR” IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.

If You do not agree with the terms and conditions below, do not create an Account or use the Services. If You do not agree with these terms and conditions in full, You are not authorized to use the Services in any fashion for any purpose whatsoever.

If You are a HIPAA Covered Entity and Provider is your Business Associate, then the Business Associate Agreement available at https://catosys.com/baa as of the date that Provider becomes your Business Associate is incorporated into this Agreement by reference.

You may access and use the Services solely in accordance with this Agreement and You agree to comply with all laws, rules, and regulations applicable to Your use of the Services, including any other documents and policies incorporated into this Agreement, including without limitation the Privacy Policy, the Acceptable Use Policy, and the Service Level Agreement, as each may be updated from time to time.

1. Services; Ordering, Pricing & Payments.

(i) Ordering. To place an order, You must (a) create an Account or have an existing Account in good standing; (b) verify Your email address or access the Services with a previously verified email address; (c) log into, or be logged into, the Cloud Console; and (d) initiate an order by using one of the order links, order buttons or order forms available or accessible through the Cloud Console. The parameters and options of the Services You select are subject to the then applicable ordering terms and pricing.

(ii) Your Account. To access the Services, You must create an Account in the Cloud Console associated with a valid email address and contact information, and You are solely responsible for ensuring that Your contact and, if applicable, billing information remains accurate and current. Unless authorized by Provider in writing, You may only create one Account per email address. You are responsible for all activities that occur under Your Account, regardless of whether the activities are undertaken by You, Your employees or a third party (including Your contractors or agents) and, except to the extent caused by Our breach of this Agreement or as required by applicable state, federal and local laws, rules and regulations, We and Our Affiliates are not responsible for unauthorized access to Your Account. You will contact Us immediately if You believe an unauthorized third party may be using Your Account or if Your Account information is lost or stolen. You may terminate Your Account and this Agreement at any time in accordance with Section 2, Access to Services; Suspension; Termination.

(iii) Free Trials. We may from time to time offer free trials of the Service for a maximum set duration period, commencing on the date that Your application for a free trial is accepted by Us and ending as specified in the free trial sign-up process. During the free trial period the Services are provided purely “AS IS” without any warranties, express or implied, or representations to You on Our part and You may not use Services acquired for trial purposes for any production purposes. In addition, the Service Level Agreement is expressly not applicable to Your usage during any free trial and no Service Credits will be granted. Before Your free trial period expires, We may contact You and invite You to purchase Services. By subscribing to a free trial, You expressly acknowledge and consent that We may contact You in connection with Services using the contact details You have provided. If You do not purchase Services following Your free trial, this Agreement will terminate upon expiration of the free trial period and You must (i) immediately cease to use the Service, (ii) delete any copies of Software and Documentation, and (iii) remove all of Your Content and settings from Our network.

(iv) Pricing; Payment; Service Fees. Pricing for Services is based on the level of Services You have selected and Your usage, as more specifically detailed at https://hipaaengine.com/pricing. Your price for existing Services may be adjusted from time to time in Provider’s sole discretion but may not increase in any contiguous twelve-month period by more than 20%. Any such price level changes are not retroactive. We calculate and invoice fees and charges monthly. You will pay Provider the applicable fees and charges for Services, using one of the payment methods We support as described in the order process. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or features will be effective when updated fees and charges, if any, are posted on Provider’s website. Interest at the rate of 1.5% per month (or the highest rate permitted by law, whichever is less) may be applied to all late payments until Your Account is current and fees and charges due are paid in full. If served with legal process (i.e. subpoena, governmental order, etc.) arising from Your Account or Your use of Services the reasonable costs (e.g., data duplication and transfer, etc.) and any necessary outside attorney’s fees required to effectively respond to such legal process may be charged to You. You agree that We may audit Your usage and level of Services, at any time, in order to verify applicable fees. In addition, but not more than once in each calendar year, We or Our chosen representative(s) may reasonably request records from You for the purpose of auditing Your compliance with the terms and conditions of this Agreement, including without limitation Your payment of all applicable fees. If an audit reveals that You have underpaid fees, We will invoice You for an amount equal to the shortfall between the fees due and those actually paid by You. You agree to pay Us for such shortfall within 30 days of the date of invoice.

(iv) Taxes. Unless otherwise agreed, You will pay any taxes (whether sales, use, VAT or otherwise) and duties applicable to Your use of Services, or furnish Provider with a valid taxation exemption certificate for Your applicable taxing jurisdictions. You acknowledge that We may make certain reports to tax authorities regarding transactions that We process. We will apply the tax exemption certificates to charges under Your Account occurring after the date We receive the tax exemption certificates.

2. Access to Services; Suspension and Termination.

Subject to Your compliance with the terms and conditions of this Agreement, Provider grants You a non-exclusive, revocable right to access and use the Services during the Term. In addition to the terms of this Agreement, Your use of any third party software provided or made available to You by Provider is governed solely by the applicable third party’s license terms, which will be provided upon request, and, if applicable, are incorporated herein by reference. Provider reserves the right to immediately suspend or terminate, with or without notice, an Account or any portion, user(s) or external service(s) within or used by an Account without limitation, at any time should Provider, in its sole discretion, reasonably believe that such action is required or to avoid an imminent threat of harm to Provider, the Services, Affiliated Entities, other Customers or any third party, subject to the terms of Our Acceptable Use Policy.

Except for the immediate termination or suspension set forth in the paragraph above, either party may suspend its performance and/or terminate this Agreement, effective immediately upon written notice, at any time if the other party is in material breach of any warranty, term or condition of this Agreement and the breaching party fails to cure that breach within thirty (30) days after receipt of written notice from the non-breaching party. Subject in all cases to the terms of the section of this Agreement captioned “Business Continuity”, upon any cancellation or expiration of this Agreement, Customer’s access and any other rights to the Services shall immediately terminate, unless You have made post-termination provisions with Provider for continuation or transfer of services.

If prior to expiration of the Term, Customer terminates the Services for convenience or Provider terminates the Services for cause, Customer shall immediately upon termination pay Provider a termination charge (which Customer agrees is a reasonable approximation of Provider’s damages and not a penalty) as follows: (a) if Customer is on a monthly subscription plan, Customer will pay any unpaid fees for the Services provided through the remainder of such monthly term; (b) if Customer has a Services Contract or Professional Services Agreement with Provider, Customer will pay any unpaid fees covering the remainder of the term of the agreement. Provider will not issue any refunds and credits to the Customer. In no event will termination relieve Customer of their obligation to pay any fees payable to Provider for the period of the agreement plus if not recovered by the foregoing, any costs, fees, or expenses incurred by Provider or the Affiliated Entities as a result of the termination; plus (c) any and all previously waived charges for the Services.

3. Ownership of Intellectual Property, Software and Services.

The Software and Services are licensed, not sold, solely for use by Customer and its Users under the terms of this Agreement. Except as specifically set forth herein, Provider and the Affiliated Entities retain all right, title, and interest, including all intellectual property and moral rights, relating to or embodied in the Software or Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Software or Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Software or Services are the trademarks of Provider and/or the Affiliated Entities. You are prohibited from using any Marks without the prior written permission, which shall be at the sole and exclusive discretion, of Provider or the applicable Affiliated Entities. Provider reserves all rights and interests not expressly granted in this Agreement, and no direct or indirect ownership interest or license right in or to the Provider of Affiliated Entities’ Marks, the Services, Software or any other Provider or Affiliate Entity intellectual property is granted to Customer or created by implication in this Agreement. Unless You direct otherwise, You agree that Provider may list You as a customer of the firm in Our marketing, business development and/or public relations materials and announcements.

4. Licenses to Provider

You expressly grant, and represent and warrant that You have all rights necessary to grant, to Provider, a royalty-free, sublicensable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, and distribute Your name, logo, or any other identifying words or marks used by and/or associated with You to identify You (“Your Marks”), in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service, to identify You as a customer of Provider or for marketing and publicity purposes.

5. Restrictions.

You shall not reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly set forth herein, You may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software or Services (in whole or in part) or any rights in the Services. You may not resell or act as a service bureau for the Services or any component thereof. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings.

6. Maintenance.

Provider will perform regular maintenance. The timing and frequency of such regular maintenance will be at Provider’s sole discretion and the requirements of the Services. In certain circumstances Provider may need to perform emergency maintenance and will, to the extent reasonably possible, provide advance notice of such emergency maintenance. The performance of maintenance, whether regular or emergency, may necessitate or result in the unavailability of all or a portion of the Services. Any such unavailability due to maintenance, whether regular or emergency, will not constitute downtime or an outage under the SLA.

7. Notices and Electronic Communications.

Unless another method of notice is expressly required by this Agreement, or agreed to in writing by the parties, notices must be given by electronic mail. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, the first Business Day following the time delivered, except that notice of Agreement amendments or revisions are deemed delivered the earlier of: (i) Customer accessing the Cloud Console; (ii) Customer’s continued use of Services; or (iii) thirty (30) days after such notice is posted or delivered.

The Provider’s address for Notices is [email protected]

The Customer’s address for Notices is the current email address associated with the Customer’s Account in the Cloud Console.

The Services are conducted electronically and You agree that Provider may communicate electronically with You and any Users for any matters relating to the Services or Software, including but not limited to information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Services, and legal notices of any kind, including cancellation and termination, unless prohibited by law.

8. Updates; Applicable Terms and Authorization for Auto Updates.

Provider may, in its sole discretion, provide, and this Agreement shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, “Updates”) that Provider may provide or make available generally to its customers after the date that the Services commence, subject to any additional terms and conditions provided by Provider applicable to such Updates. You hereby authorize Provider to, in accordance with Provider’s standard operating procedures, automatically and in good faith transmit, install, and otherwise provide Updates to the Software upon Your access to the Services or Software without further notice or consent.

9. Data Security

You are fully responsible for the security of data within Your Account or otherwise in Your possession. You agree to comply with all applicable state and federal laws and rules in connection with Your collection, security, and dissemination of any protected health information (“PHI”) on Your site. You agree that at all times You shall be compliant with HIPAA and HITECH requirements, as applicable. The steps You will need to take to comply with HIPAA and HITECH when using Provider will vary based on Your Services. If We believe that it is necessary based on Your Services and We request it of You, then You will promptly provide Us with documentation evidencing Your compliance with HIPAA and/or HITECH. You also agree that You will use only HIPAA compliant service providers in connection with the storage, or transmission of PHI.

Unless otherwise expressly stated in writing, the Services do not include Provider’s design, development or management of Customer’s systems or data, transactions processing, or maintenance of a “designated record set,” as defined in HIPAA. Provider will interact with Your systems and data only to the limited extent necessary to provide the Services, and comply with applicable Law and the Business Associate Agreement.

10. Ownership of Content; Limited License to Content.

Provider does not claim ownership of any Content. As between Provider and You, You are the Content Owner or applicable Licensor. In connection with Our provision of Service to You, Except as otherwise provided in this Agreement, as between You, on the one hand, and Provider or Affiliated Entities, on the other hand, You retain all right, title, and interest in and to the Content. You acknowledge that the Services are provided by automated means and that Provider personnel will not access, use, or disclose any Content, except as necessary to perform the Services, including but not limited to the following: (i) during a Services interruption as necessary to restore applicable Content at Your request; (ii) upon Your request that Provider serve as host, producer, or facilitator as part of the Services; (iii) as a result of Provider, at Customer’s request, providing, if applicable, remote desktop support to Customer; or (iv) as reasonably deemed necessary or advisable by Provider, at its sole but reasonable discretion, to conform to applicable legal requirements or to comply with legal process. You hereby grant to Provider a non-exclusive, worldwide, royalty-free, fully-paid, irrevocable, transferable license to host, cache, store, display, record and copy Content solely for the purpose of providing the Services to You during the Term.

11. Representations and Warranties About Content.

You represent that You: (i) are the owner or authorized licensee of any and all Content; (ii) will not publish, post, upload, record, or otherwise distribute or transmit Content using the Software or Services that: (a) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy, or data security); (c) is profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (d) is harmful to minors or pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, malware, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, delete, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (f) is materially false, misleading, or inaccurate.

12. Retention of Content.

As long as Your Account is active, You shall be responsible for managing and retaining any of Your Content. Other than as required by applicable law or legal process or as otherwise agreed, Provider shall not be responsible for retaining any of Your Content after Account termination or for archiving purposes. You acknowledge that all Customer Content may be deleted by Provider after the Account is terminated, subject to the terms of this Agreement and/or any termination or transition of Services Agreement the parties may enter.

13. Service Availability.

Provider will use commercially reasonable efforts to provide Customer access to selected Services with a Monthly Uptime Percentage, as defined in the then applicable Service Level Agreement, during any monthly billing cycle (the “Service Commitment”). In the event Provider does not meet the Service Commitment in effect at the time of any outage You will be eligible to receive a Service Credit as described in the Service Level Agreement available at http://hipaaengine.com/sla.

14. Submissions.

You may submit questions or comments to Provider from time to time. Provider reserves the right to use in whole or part the content any such questions or comments and all such communications, comments, feedback, suggestions, ideas, and other submissions related to the Software or Services submitted to Provider, excluding Your Confidential Information (collectively, “Submissions”) will become and shall thereafter remain Provider’s property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are assigned (and in the future deemed to be assigned) by You to Provider.

15. Confidentiality.

You may use Provider’s Confidential Information solely in connection with Your use of Services, as permitted under this Agreement, and will not disclose any of Provider’s Confidential Information at any time. Both parties will hold in strict confidence and not use or disclose to any third party any Confidential Information of the other party, other than as permitted by this Agreement. Each party will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, but in no event less than a reasonable degree of care. You will not issue any press release or make any other public communication with respect to this Agreement or Your use of the Services.

16. Compliance with Applicable Law.

You agree (i) not to use the Software or Services for any illegal purposes and (ii) to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to recording conversations, privacy, and data protection and public displays or performances, and United States export laws and regulations regarding the transmission of technical data exported from the United States through the Software or Services. You further agree that this Agreement does not require Provider or any of the Affiliated Entities to exercise any right or remedy in order to benefit or protect anyone, although Provider reserves the right to do so in its sole discretion.

17. Acceptable Use Policy.

You agree to abide by Provider’s Acceptable Use Policy, (the “Acceptable Use Policy” or “AUP”), as modified from time to time and available at https://hipaaengine.com/aup, and not to use, promote aid or direct others to use the Services in conflict with the Acceptable Use Policy or this Agreement. The Software and Services are not designed or intended for use in any situation where failure or fault of any kind of the Software or Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (collectively, “High Risk Use”). You may not use the Software or Services in, or in conjunction with High Risk Use, which is strictly prohibited. We reserve the right, but assume no obligation, to investigate any violation of Our Acceptable Use Policy or any misuse of the Services. You acknowledge that We may report to appropriate law enforcement officials, regulators, or other appropriate third parties any activity We suspect violates any law or regulation. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties, as requested, by providing network and systems information related to alleged violations of this Policy.

18. Business Continuity.

In the event that Provider is unable to continue providing the Services to You, Provider will provide access to the Your data in Provider’s possession in order to facilitate a transition of Services by You to another provider or in-house alternative. Upon termination, Provider will, to the extent possible, provide You at reasonable cost in accordance with industry pricing a current copy of Your data; provided that You are at such time in good standing in all then current fees and charges and Provider receives written request from You for a copy of Your data no later than 30 days after termination (the “Termination Transition Period”). Each party will reasonably cooperate to effect a timely and orderly transition of services, if applicable, to any designated third party identified by You in writing to Provider within the Termination Transition Period.

19. Indemnification.

You agree to defend, indemnify, and hold harmless Provider from and against any and all claims and liabilities (including, but not limited to, fees, costs and other reasonable expenses of attorneys and expert witnesses, but excluding any loss, liabilities, costs, damages or other expenses attributable solely to Provider’s negligent acts/omissions or willful misconduct) made by any third party related to or arising from: (i) Your use of the Software or Services (including without limitation, any User or person accessing the Services using Your password or access key with or without Your permission), (ii) any actual or alleged violation of this Agreement or applicable law, and/or (iii) any actual or alleged infringement or violation (by You or any User or person accessing the Services using Your password or access key with or without Your permission) of any intellectual property or privacy or other right of any person or entity. Notwithstanding the foregoing Your potential indemnification liability shall exclude, to the extent permitted by applicable state, federal or international laws, any special, incidental, punitive or consequential damages to Provider or its Affiliates other than those arising from or related to Your negligent or willful: (a) misappropriation of Content or trade secrets; (b) actual or alleged infringement of a third party’s intellectual property rights; or (c) breach of the confidentiality obligations provided.

20. DISCLAIMER OF WARRANTIES.

ALL SOFTWARE AND SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS AND WITHOUT ANY WARRANTY BEYOND THE SOLE AND LIMITED WARRANTY THAT SERVICES WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN APPLICABLE PROVIDER USER DOCUMENTATION. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION EACH OF PROVIDER AND THE AFFILIATED ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, UNLESS PROHIBITED BY LAW, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OR OF WORKMANLIKE EFFORT. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.

21. NO LIABILITY FOR CONTENT.

YOU AGREE THAT PROVIDER AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SOFTWARE OR SERVICES, CONTENT THAT IS UPLOADED OR DOWNLOADED BUT NOT RECEIVED, AND CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; FURTHER, YOU AGREE THAT PROVIDER AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY ACCESS TO OR ALTERATION OF SUCH CONTENT OR FOR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING PRIVACY, INTELLECTUAL PROPERTY, OR DATA PROTECTION RIGHTS ARISING FROM SUCH CLIENT CONTENT OR FROM THE CONDUCT OF CLIENT OR THIRD PARTIES OTHER THAN WHICH MAY BE THE RESULT OF PROVIDER’S WILLFUL ACTIONS.

22. EXCLUSION OF CERTAIN DAMAGES.

UNLESS PROHIBITED BY LAW, YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR GOODWILL; DAMAGES FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, OR FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN THE DIRECT DAMAGES DESCRIBED IN SECTION 22 BELOW. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, DAMAGES OR REIMBURSEMENT ARISING FROM OR IN CONNECTION WITH: YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT RESULTING FROM YOUR ACTIONS OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY SLA, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (V) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, OR (VI) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT THAT PROVIDER OR ANY OF THE AFFILIATED ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

23. LIMITATION ON LIABILITY.

PROVIDER SHALL NOT BE LIABLE FOR ANY DAMAGES EXCEPT FOR DIRECT DAMAGES ACTUALLY INCURRED BY YOU UP TO THE GREATER OF THE AMOUNT OF THE PRICE THAT YOU ACTUALLY PAID FOR THE SERVICES THAT GIVE RISE TO YOUR CLAIM DURING THE PRECEDING 12 MONTHS OR ONE DOLLAR (US $1.00), REGARDLESS OF THE FORM OF ACTION OR CLAIM.

24. Survivability.

All Agreement terms, provisions, paragraphs, and/or sections, including Customer’s payment obligations to Provider, which by their nature are intended to survive expiration or termination of the Agreement, shall so survive.

25. Governing Law; Exclusive Forum; Jurisdiction.

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey and the United States of America without regard to conflicts of laws principles. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Unless otherwise prohibited by applicable law, You agree that any claim or cause of action arising out of or related to this Agreement must be commenced by You within one (1) year after the cause of action arose.

26. Severability.

To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Provider’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by Provider in a writing signed by a duly authorized officer of Provider.

27. Force Majeure.

Provider and its Affiliated Entities will not be liable for non-performance or delay in performance caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, acts of terrorism, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, any act of God, or any other event of a similar nature.

28. Third Party Beneficiaries; Assignment.

The Affiliated Entities are third party beneficiaries to this Agreement. There are no other third party beneficiaries to this Agreement. No party may assign or otherwise transfer this Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except that Provider may assign or otherwise transfer this Agreement, any of its rights or obligations under this Agreement, and/or any Content provided to Provider pursuant to this Agreement, to one (1) or more of the Affiliated Entities, or by way of merger, acquisition or sale of all or substantially all of its assets to any third party or Affiliated Entity or as part of a corporate reorganization, without Your consent. This Agreement will be binding on and inure to the benefit of Provider and Customer and their respective permitted successors and permitted assigns.

29. Export Restrictions.

You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and Services. Without limiting the foregoing, You acknowledge that the Software and Services are or may be an encryption item subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Software or Services in any form in violation of the export laws of the United States or any foreign jurisdiction. You will defend, indemnify, and hold Provider and the Affiliated Entities harmless from and against any violation of such laws or regulations.

30. Hyperlinks.

Provider may, in its sole discretion and at any time, change, forward or redirect any hyperlink referenced in this Agreement. The changed, forwarded or redirected hyperlink(s) shall have the same force and effect as the original hyperlink(s).

31. Interpretation.

Captions in the Agreement are for convenience only. Use of the words and/or phrase ‘including,’ ‘and/or,’ and ‘such as’ herein shall be read as ‘including without limitation.’ The format, words, and phrases herein have plain English meanings and/or definitions generally understood in the Computer/Software/Internet Industries. This Agreement shall be construed according to its plain meaning. In the event any ambiguity is found herein, interpretation shall be based on the intent of the parties, rather than a construction automatically against the interests of the drafting party.

32. Non-Solicitation.

Neither party shall directly or indirectly, employ any personnel of the other party, or induce or attempt to influence any personnel, customer, or supplier of the other party to terminate employment or any other relationship with the other party. This restriction shall survive expiration or termination of the Agreement for a period of 12 months.

33. Use of De-Identified Data.

You agree that on your prior written consent Provider may use your Personal Data to provide data aggregation services, as permitted by the HIPAA Privacy Rule provided that it de-identifies the data in a manner that meets the HIPAA Privacy Rule de-identification requirements, and otherwise complies with the requirements for data aggregation services stated in the BAA.

34. Mandatory Mediation.

Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not file a lawsuit or other legal action in connection with this Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation. At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator. The mediator will be chosen by mutual agreement of the parties within thirty (30) days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants and experts in connection with the dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party. If the dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, the parties are free to file a lawsuit or other action.

35. Relationship Between the Parties.

The parties are independent contractors, and neither party is the agent of the other or has the right to bind the other on any contract with a third party. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. Nothing in this Agreement creates an obligation of exclusivity or non-competition. Each party is free to purchase and sell services of the type described in the Agreement to any person, including competitors of the other party.

36. Order of Precedence.

If there is a conflict between the documents that comprise this Agreement, the documents control in the following order of precedence: the Terms of Services Agreement, the BAA, the AUP, the SLA, any other document that is part of the Agreement.

37. Federal Agency Users.

The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning the Federal Acquisition Regulations and applicable agency supplements.

38. Waiver of Jury Trial.

To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of this Agreement and the parties’ activities regarding this Agreement.

39. Referrals to Third Party Service Providers.

As a convenience to You, Provider may identify unaffiliated third parties who perform services useful to You. Provider does not endorse any third party, and makes no representation or warranty whatsoever regarding third parties it identifies for your consideration. You are responsible for investigating the third party’s qualifications and skills.

40. Authorized Users.

You may not authorize any individual to use the Services other than Your personnel and end users and the personnel and end users of Your Covered Entity or Business Associate. The term “personnel” includes employees and individual contractors under the direct supervision and control of the person referred to.

41. Subcontractors.

Provider may use subcontractors to perform all or any part of the Services, but remains responsible to you under this Agreement for Services performed by its subcontractors to the same extent as if Provider performed the Services itself. You agree and acknowledge that: (i) None of Provider’s subcontractors make any representations or warranties to You under this Agreement, and none of them has any liability directly to You in connection with the Services or any direct, indirect, incidental or consequential damages arising from your use of the Services; (ii) Provider is not an agent for its subcontractors; (iii) that Provider’s subcontractors are independent contractors and not partners or joint venturers with Provider; and (iv) that Provider’s subcontractors include Google, Inc., Microsoft Corporation, Amazon Web Services, Inc. and others.

42. Support and Support Requests.

Customer will provide first-level support to Customer’s End Users. Provider will provide second-level support to Customer only.

Provider will provide support only for support requests directly related to the Services.

Provider will normally process support requests Monday through Friday between 9:00AM and 8:59PM, Eastern Standard Time in the United States, excluding Holidays. Holidays are determined by Provider in its sole but reasonable discretion. From time to time, and at Provider’s sole but reasonable discretion, Provider will not process support requests during its normal support hours.

Provider will provide all support to Customer exclusively through support tickets submitted by Customer at Provider’s dedicated support site at https://support.catosys.com.

Provider will provide all support exclusively in the English language.

Provider targets an initial response time to support requests of 1 business day, but does not guarantee a specific response time to any support request.

43. Entire Agreement.

This Agreement, including any additional documents incorporated by reference, constitutes the entire agreement of the parties with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between Provider and Customer regarding them. Provider’s performance of this Agreement is subject to existing laws and legal process, and You agree that Provider may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of this Agreement or that policy. A printed or electronic version of this Agreement and of any notice given to You in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

44. Modifications to this Agreement.

Provider may modify this Agreement, including any SLA, AUP, BAA or Privacy Policy or other document incorporated by reference, from time to time by posting a revised version on its website at https://catosys.com. Such modifications will be deemed accepted and become effective on the date of the website posting. Your continued use of the Services following any modification stated in the website posting will confirm Your consent to any modifications. This Agreement may not be otherwise amended by You in any other way except through a written agreement executed by authorized representatives of each party.

45. Definitions.

Capitalized terms used in this Agreement have the meanings set forth below, or in the section where they are used or in the applicable agreement between Provider and Customer.

Acceptable Use Policy or AUP means the Acceptable Use Policy available at http://catosys.com/aup which is incorporated into this Agreement by reference.

Account means Your user Account in the Cloud Console and any of Provider’s Services that You or Your users access or use.

Affiliated Entities or Affiliates means any licensors and suppliers providing any or part of the Software and/or Services; and all subsidiaries, affiliates, directors, officers, employees, consultants, and agents of Provider and of any of the foregoing.

Business Associate Agreement or BAA means the Business Associate Agreement available at https://catosys.com/baa which is incorporated into this Agreement by reference.

Confidential Information means all nonpublic information disclosed by Provider and Our Affiliates or by You that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that a party is obligated to keep confidential; and (c) the nature, content and existence of discussions or negotiations between the parties. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by a party without reference to the other party’s Confidential Information.

Content means any and all information, data, and protected health information (PHI), regardless of the file format or file contents (and includes, without limitation, all photographs, text, images, audio clips, sounds, videos, databases, emails, computer programs, as well as any other files) uploaded by or for You in connection with Your use of the Services.

PHI or Protected Health Information has the definition given to it under HIPAA and for purposes of this Agreement applies to Customer’s data to the extent Cato Systems has access to it in connection with Customer’s permitted use of the Services.

Customer, You or Your means the individual or legal entity purchasing, opening, or utilizing an Account or Services under this Agreement, including any and all of the individual users who have access to or use the Services associated with Your Account.

Cloud Console means the website and system available at https://app.catosys.com.

HIPAA means the Health Information Portability and Accountability Act of 1996 and the rules and the regulations thereunder, as amended.

HITECH Act or HITECH means the Health Information Technology for Economic and Clinical Health Act enacted in the United States Congress, which is Title XIII of the American Recovery & Reinvestment Act, and the regulations thereunder, as amended.

Service Order means any quote or service form, electronic or otherwise, provided to You by Provider in connection with Your subsequent selection of Services.

Services or “the Service” means the Provider’s plans, services, features and offerings offered by Provider, as modified from time to time by Provider in its sole discretion, and selected for use by You at the time of enrollment and accepted by Provider and as then amended by You or Provider from time-to-time thereafter.

Software means the Provider software offerings, programs and any third party software programs supplied by Provider to Customer and documentation (whether hard copy or electronic) and media related thereto.

Service level Agreement or SLA means the Service Level Agreement available at https://catosys.com/sla which is incorporated into this Agreement by reference.

Privacy Policy means the Privacy Policy available at http://catosys.com/privacy which is incorporated into this Agreement by reference.

Term means the duration of this Agreement commencing with the earliest of the date: (i) that Provider accepts Customer’s order for Services, or (ii) that Customer first accesses or uses the Services, and continuing until the end of the applicable Services period as designated by Provider either pursuant to the Services Order, subject to earlier termination in accordance with this Agreement. The initial term of engagement shall automatically renew for an additional one (1) year period, unless either party delivers written notice of non-renewal to the other party at least thirty (30) calendar days before a term expires.

Provider, We, Our, and Us means Cato Systems LLC.

User(s) means the individual(s) accessing or using the the Services for or on behalf of the Customer.