SaaS Terms

SAAS TERMS

These Terms were last revised on July 13, 2021.

By signing the Subscription Agreement, having access to, receiving, and/or using the services provided by PA & Associates Healthcare, LLC (“PAHC”) at kermit.mendixcloud.com (“SaaS”), you agree, on behalf of you and your company (collectively, “Client”), without limitation or qualification, to be bound by and to comply with these Terms (“Terms”). Each Order Form will be deemed to incorporate these Terms as they are published by PAHC on the effective date of such Order Form.

1. License; Use; Restrictions; Access; Other SaaS.

1. License. Company grants to Customer the right to allow its employees, agents, and vendors that it designates (“Authorized Users”) to access and use the software as a service identified in Purchase Order (“SaaS”) for the purpose of procurement management for the benefit of Customer.
2. Use. Customer may exercise the license granted above only through its Authorized Users. Customer’s license to access the SaaS is limited as may be provided in Purchase Order (Fees and Additional Terms). Each Authorized User must have a unique password. Each password may only be used from one computer or other device at any given time. Company has no obligation to verify the identity of any person who gains access to the SaaS. Customer is responsible for the compliance with this Agreement by any person who Customer permits to access the SaaS and will be liable to Company for any non-compliance. Customer will use commercially reasonable efforts to prevent unauthorized access to the SaaS and notify Company promptly of any such unauthorized access. Customer will use the SaaS only in accordance with the applicable user guide. Customer will notify Company if Customer becomes aware of any failure of an Authorized User to adhere to the terms and restrictions in this Agreement.
3. Restrictions. Customer will not (i) permit any person that is not an Authorized User to access the SaaS, (ii) publicly display the SaaS or provide the SaaS on a service bureau basis, (iii) sell, resell, rent or lease the SaaS, (iv) use the SaaS to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights), (v) interfere with or disrupt the integrity or performance of the SaaS, (vi) access or use the SaaS for any illegal purpose or any illegal manner, (vii) attempt to gain unauthorized access to the SaaS, (viii) modify, decode, reverse engineer, decompile, or disassemble the SaaS, in whole or in part, or (ix) upload or introduce into the SaaS any viruses, adware, spyware, worms or other malicious code.
4. Other Products, SaaS, and Opportunities. Company may offer to Customer certain additional products, services, and opportunities for cost savings related to its procurement activities. This may include cost saving opportunities sometimes referred to as “Kermit Opportunities.” Such additional products, services, and opportunities will be delivered under separate terms, including terms provided and accepted by Customer via online/click-thru terms of service. The parties will agree separately upon the amounts that may be due to Company for such additional products, services, and opportunities.

1. Access. Company will use commercially reasonable efforts to make the SaaS available to Customer through a URL accessed through the Internet 24-hours per day, 7 days per week, excluding down time for maintenance and repair. Customer is responsible for obtaining all appropriate hardware, software and other services that may be necessary to access such URL. Company has standing weekday maintenance/repair/backup hours from 11:00 pm (local time at the Company data center) each day to 1:00 am (local time at the Company data center), which hours are extended by 2 hours (i.e., until 3:00 am) on Saturday nights. Company also maintains a standing weekly new version publishing window of Thursday beginning at 10:00 pm Eastern time to be used for releasing new versions and updates. Company will use commercially reasonable efforts to provide as much notice to Customer as reasonable under the circumstances of emergency maintenance or repair downtime outside the aforementioned standing hours.
2. Customer Data. “Customer Data” means data input into the SaaS by Authorized Users. Company will use (i) firewalls and other technology generally used in the trade to prevent unauthorized third party access to its computer systems storing Customer Data, and (ii) available encryption technology of the type generally used in the trade to prevent unauthorized third party access to Customer Data transmissions. Notwithstanding the foregoing, Company shall not be liable to Customer in the event that (A) its use of firewalls and other technology generally used in the trade fails to prevent unauthorized third party access to Customer Data or (B) its use of encryption technology generally used in the trade fails to prevent unauthorized third party access to Customer Data transmissions. Nothing in this Section 2(b) (Customer Data) shall constitute a representation or warranty by Company that Customer Data storage or transmission will be inaccessible to unauthorized third parties.
3. Data Use. Company may aggregate, compile, and use Customer Data in order to improve, develop or enhance the SaaS and other services offered, or to be offered, by Company, provided that no Customer Data is identifiable as originating from, or can be traced back to, Customer in such aggregated form.
4. Hosting Location. Company reserves the right to locate the servers and other equipment needed to provide the SaaS either at its facilities or at the facilities of independent service providers, either of which may be located anywhere within the United States. Company may change the location of the servers and other equipment needed to provide the SaaS at any time during the Term; provided that any such change of location shall not affect Company’s obligations under this Agreement and shall not interrupt Customer’s access to the SaaS.
5. Feedback and Data Aggregation. At all times during the Term and thereafter, Company will, notwithstanding anything to the contrary herein, have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the SaaS to the extent it does not constitute Confidential Information of Customer. Company will, notwithstanding anything to the contrary herein, also have the unrestricted right to use and distribute any statistics based on Customer usage of the SaaS and Customer Data as aggregated with Company’s other customers’ data for marketing and other purposes. Company may send email communications to Authorized Users regarding Company’s products and services. 

1. Term. This Agreement will begin on the Effective Date and, unless earlier terminated in accordance with this Section, shall remain in effect until the day that is the one-year anniversary of the last day of the Implementation Period (the “Initial Term”). Thereafter, this Agreement will automatically renew for subsequent 180 day periods (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”), unless either party notifies the other of its intent to not renew at least 30 days before the beginning of any Renewal Term. “Implementation Period” means the 30-day period beginning upon the Effective Date.
2. Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach.
3. Effect of Termination. Immediately upon the expiration or termination of this Agreement (i) Customer’s license to access the SaaS will terminate and Customer will cease all access to and use of the SaaS, (ii) Customer’s access to the SaaS will be disabled, and (iii) Customer will pay all fees set forth in Purchase Order (Fees and Additional Terms) and any other fees due under this Agreement (“Fees”) in accordance with Purchase Order.
4. Survival. Upon expiration or termination of this Agreement, the following Sections of this agreement will survive: 4 (Fees), 6 (Confidentiality), but only as to information disclosed prior to termination or expirations, 10 (Limitation of Liability), and 11 (Miscellaneous).

1. Fees. Customer will pay Company the Fees in accordance with the payment terms set forth in Purchase Order (Fees and Additional Terms).
2. Failure to Pay. Customer’s failure to pay any Fee when due is a material breach of this Agreement. Fees will accrue interest from their due date until paid at the rate of 1.5% per month or the maximum rate allowed under applicable law, whichever is less.
3. Taxes. The Fees are exclusive of any tariff, duty, or tax, however designated, levied, or based including, without limitation, any taxes based on: (i) this Agreement; (ii) the SaaS; (iii) use of the SaaS; or (iv) any materials or supplies furnished by Company. Customer is responsible for all applicable tariffs, duties or taxes (exclusive of taxes based on Company’s net income) applicable to this Agreement.

5. Support and SaaS; Notification.

1. Support. Company will provide application support for the SaaS through its account managers and technical staff in accordance with its standard service level documentation, which Customer may obtain from Company upon request.
2. Data Conversion. If requested, Company will provide Customer with services for converting data from its current format to a format which is compatible with the SaaS and other data conversion services, all at the rate stated in Purchase Order (Fees and Additional Terms) or, if not so stated, at Company’s current standard rate. Absent an agreement to the contrary, Customer shall be solely responsible for data conversion, data preparation, data entry and data verification, and any post-conversion clean-up. Any data conversion services not indicated in Purchase Order (Fees and Additional Terms) are subject to the parties’ mutual agreement on: (i) the schedule for performance of the additional services and (ii) Fees for the additional services.
3. Notification. Company hereby notifies Customer of potential attempted Security Incidents (as defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Health Information Technology for Economic and Clinical Health Act (HITECH Act)), such as pings on Company’s firewall, port scans, attempts to log on a system or enter a database with an invalid password or username, denial-of-service attacks that do not result in a server being taken off-line, and malware (worms, viruses, etc.) that do not result in actual unauthorized access, use, disclosure, modification or destruction of Electronic Protected Health Information or interference with an information system. Customer and Company agree that this Section satisfies the reporting requirements for Unauthorized User and/or Disclosure of HIPPA AND HITECH Act so long as such activities do not result in actual unauthorized access, use, disclosure, modification or destruction of Electronic Protected Health Information or interference with an information system.

 6. Confidentiality.

1. Definition. “Confidential Information” means all proprietary technical and non‑technical information including: (i) Customer Data; (ii) trade secret, and other proprietary information; (iii) inventions, know‑how, processes, or algorithms; (iv) software programs, software source documents, object code, source code, SaaS, SaaS documentation, hardware specifications and configurations; (v) development design details and specifications; (vi) a party’s financial information; (vii) customer lists, business forecasts, sales and marketing plans and information; (viii) audit reports and attestations of compliance and any information related thereto; (ix) this Agreement’s terms, including the amount of Fees; and (x) any other information disclosed by a party, or to which a party is exposed because of this Agreement, that the disclosing party identifies as confidential at the time of disclosure or which – by its nature - reasonably should be regarded as confidential.
2. Nondisclosure and Nonuse Obligations. Each party (the “Receiving Party”) agrees that it will not disseminate, distribute, expose, or in any way disclose any Confidential Information of the other party (the “Disclosing Party”) to any third party. The Receiving Party may use the Disclosing Party’s Confidential Information to the extent necessary to enjoy the SaaS or perform its obligations under this Agreement. The Receiving Party’s employees and contractors may use Confidential Information only for the specific business purpose for which it was made available and not for any other purpose. The Receiving Party’s employees and contractors may not use Confidential Information in any way that may compete with Disclosing Party. The Receiving Party agrees that it will protect and treat all Confidential Information with the same degree of care as the Receiving Party accords its own Confidential Information, but in no event less than reasonable care. The Receiving Party agrees that it shall disclose Confidential Information only to those of its employees and contractors who need to know such information, and the Receiving Party certifies that such employees and contractors have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions applicable to the Receiving Party under this Agreement. The Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. The Receiving Party agrees to assist the Disclosing Party in remedying any such unauthorized use or disclosure of Disclosing Party’s Confidential Information.
3. Exclusions from Nondisclosure and Nonuse Obligations. The Receiving Party’s obligations under the above Section will not apply to Confidential Information that the Receiving Party can document: (i) was (through no fault of the Receiving Party) publicly available at or subsequent to the time the Disclosing Party disclosed the information to the Receiving Party; (ii) was rightfully in the Receiving Party’s possession free of any confidentiality obligation at or subsequent to the time the Disclosing Party disclosed it to the Receiving Party; or (iii) was developed by the Receiving Party’s employees or agents independent of, and without reference to, any information communicated to the Receiving Party by the Disclosing Party. A Confidential Information disclosure by the Receiving Party either: (A) in response to an enforceable order by a court or other governmental body; (B) as otherwise required by law; or (C) necessary to establish the rights of either party under this Agreement, shall not be a breach of this Agreement by the Receiving Party or a waiver of confidentiality for other purposes; provided, however, the Receiving Party shall provide prompt prior written notice of any such Confidential Information disclosure to the Disclosing Party (to the extent allowed by applicable law) to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
4. Ownership and Return of Confidential Information and Other Materials. The Disclosing Party’s Confidential Information is and shall remain the Disclosing Party’s property, and this Agreement does not grant or imply any license or other rights to the Disclosing Party’s Confidential Information except as expressly set forth in this Agreement. Within 5 business days after the Disclosing Party’s request, the Receiving Party will promptly either (at the Disclosing Party’s election) destroy or deliver to the Disclosing Party all Confidential Information and materials furnished to the Receiving Party, and the Receiving Party agrees to provide a written officer’s certification of the Receiving Party’s compliance with the foregoing obligation.
5. Third Party Information Disclosure. The Disclosing Party shall not communicate any information to the Receiving Party in violation of the proprietary rights of any third party.

7. Ownership.

1. Company Ownership. Customer recognizes and agrees that, as between Company and Customer: (i) Company is the sole and exclusive owner of all right, title, and interest in and to the SaaS, any deliverables provided by Company to Customer, and any related documentation and logos and trademarks, and to all intellectual property rights in the foregoing. The only rights that Customer obtains to such items are the licenses expressly granted in this Agreement.
2. Customer Ownership. Company recognizes and agrees that, as between Company and Customer, Customer is and shall remain the sole and exclusive owner of all right, title, and interest in the Customer Data.

8. Warranty; Disclaimer.

1. Authority. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
2. Warranty. Company warrants that the SaaS will include the material functions and features described in Purchase Order.
3. Remedy. If Customer notifies Company in writing that of a failure of the warranty set forth above, Company will use commercially reasonable efforts to modify the SaaS so that the SaaS satisfy that warranty. If such modification is not commercially reasonable, then Company will notify Customer and Customer may terminate this Agreement. In the event Customer terminates this Agreement under this Section, Company will refund to Customer, on a pro-rata basis, any pre-paid and unused Fees paid by Customer. THE FOREGOING REMEDY IS CUSTOMER’S SOLE REMEDY IN THE EVENT OF A BREACH OF THE LIMITED WARRANTY ABOVE.
4. DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY MADE ABOVE, THE SERVICES ARE PROVIDED AS-IS AND AS AVAILABLE AND COMPANY DISCLAIMS AND MAKES NO ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGMENT.

9. Indemnification.

1. Company Indemnification. Company will indemnify and defend Customer against any third party claim, suit, or proceeding brought against Customer to the extent that it is based on a claim that the SaaS infringe any copyright, trademark, patent, or trade secret right, provided that (i) Company is promptly notified in writing of the claim, (ii) Customer provides reasonable assistance (at Company’s expense) with such claim, (iii) Company is accorded the right to have final discretion with regard to the defense and any negotiations or settlement of such claim, and (iv) Customer does not admit fault or liability of Company or of itself. Should the SaaS become, or in Company’s or its licensors’ opinion be likely to become, the subject of any claim for which Customer may claim indemnification, then Customer will permit Company, at Company’s option and expense, to (A) procure for Customer the right to continue using the SaaS, (B) replace or modify the SaaS so that use becomes non-infringing, or (C) refund any fees paid in advance to Company that Customer has not used as of the date of notice provided by Customer in accordance with this Section and terminate this Agreement. The indemnity obligation of Company will not apply to any claim to the extent it arises from: (1) the use, operation, or combination of a SaaS with programs, data, equipment, or materials not provided by Company if the claim would have been avoided by using it without such programs, data, equipment or materials; or (2) continuation of the allegedly infringing activity by Customer longer than 30 days after being informed thereof. To the maximum extent permitted by applicable law, this Section states each party’s entire liability to the other party and exclusive remedy for infringement of third party intellectual property.
2. Customer Indemnification. Customer will indemnify and defend Company against any third party claim, suit, or proceeding brought against Company arising from or relating to (i) the use of the SaaS by Customer, other than those for which Company is obligated to indemnify Customer under Section 9(a); or (ii) Customer Data or the use thereof, including but not limited to allegations that such use violates law or regulation, or infringes the privacy or intellectual property rights of a third party, provided that (A) Customer is promptly notified in writing of the claim, (B) Company provides reasonable assistance (at Customer’s expense) with such claim, (C) Customer is accorded the right to have final discretion with regard to the defense and any negotiations or settlement of such claim, and (D) Company does not admit fault or liability of Customer or of itself.
3. Cooperation. The parties agree to cooperate in good faith in the defense of any legal action or suit that causes an invocation of indemnity hereunder. Neither party will be liable hereunder for any settlement made by the other party without that party’s advance written approval. A party’s obligation to indemnify and defend hereunder will be mitigated and reduced to the extent that it has been prejudiced by a failure of the other party to provide prompt notice of any and all claims or to provide reasonable cooperation in the defense and settlement thereof.

EXCEPT FOR LIABILITY RESULTING FROM BREACH OF SECTION 1 (USE AND RESTRICTIONS) OR SECTION 6 (CONFIDENTIALITY) OR LIABILITY UNDER SECTION 9 (INDEMNIFICATION), OR LIABILITY FOR INTENTIONAL WRONGFUL CONDUCT OR THE INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM DELAY OF DELIVERY OR FROM LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL, HOWEVER CAUSED AND ON WHATEVER THEORY, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), THE FAILURE OR ASSERTED FAILURE OF A PARTY TO PERFORM ITS OBLIGATIONS HEREUNDER, OR OTHERWISE, AND WHETHER OR NOT THE DAMAGING PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL CUMMULATIVE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER IN THE 12 PRIOR MONTHS. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK SET FORTH IN THESE AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THESE AGREEMENT WITHOUT THESE LIMITATIONS.

11. Miscellaneous.

1. Notices. All notices under these Terms shall be in writing and shall be delivered to the address of the Client account by means evidenced by a delivery receipt, by facsimile, or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email. Notices to Company shall be addressed to the attention of its CEO, with a copy to its General Counsel, 9515 Deereco Road, Suite 301, Timonium, Maryland 21093.
2. Modification. This Agreement may be modified or amended only in writing signed by the parties.
3. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
4. Force Majeure. To the extent caused by a Force Majeure Event, no delay, failure, or default will constitute a breach of this Agreement. “Force Majeure Event” means any event beyond the reasonable control of the party affected by such event, including without limitation fire, storm, weather, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, acts or omission of any third party, any state or national law, decree or ordinance, or any executive or judicial order, which event causes a party to delay or fail to perform under this Agreement.
5. Independent Contractor Status. The parties agree that they are independent contractors and nothing in this Agreement is intended to make the parties partners, agents, joint venturers, or any other form of joint enterprise, or to make the employees, agents, or representatives of one of the parties into employees, agents, or representatives of the other party. No party to this Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
6. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without the express written consent of Company, except Customer may upon written notice to Company assign this Agreement to a wholly owned subsidiary or in connection with any merger, acquisition, or reorganization of Customer; provided that any assignee confirm in writing to Company its agreement to the provisions of this Agreement. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of the parties.
7. Choice of Law and Forum. This Agreement will be governed solely by the internal laws of the State of Maryland, without reference to such state’s principles of conflicts of law. The parties agree to the personal and exclusive jurisdiction of the federal and state courts of Baltimore County, Maryland for all disputes relating to this Agreement.
8. 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.
9. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.