Last updated: May 3, 2018
Welcome to the ApexConnect Terms and Conditions as they relate to our integration service (the “Service”). By signing up for our Service, you (1) agree to the following terms and conditions of this service agreement (the “Service Agreement”) on behalf of yourself and the company or organization, (2) represent and warrant that you are authorized to accept this Service Agreement, and (3) agree that you will be responsible for the acts and omissions when signing up for our service. If you do not agree to the following Service Agreement, do not sign up for our Service.
ApexConnect reserves the right to modify or replace this Service Agreement at any time and in ApexConnect’s sole discretion. ApexConnect will indicate at the top of this Service Agreement the date such document was last updated. Any changes will be effective immediately upon posting the revised version on the Site (or such later effective date as may be indicated at the top of the revised Service Agreement). Your continued use of the Service following the posting of any changes to this Service Agreement will constitute your acceptance of such changes. If you do not agree to the changes, you must stop using the Service. In addition, ApexConnect may provide other methods by which you may accept this Service Agreement or changes to this Service Agreement.
Platform and Services
Orders. All orders for the ApexConnect Platform and Services shall be set forth in one or more orders executed by the Parties. All executed Orders shall be subject to the terms of this Agreement.
Software. ApexConnect shall provide access to the Software (defined below) for Client to operate the Platform. The software is located in the Microsoft Azure Cloud and is accessed via a web browser. As used herein, the term “Software” means the computer software programs, applications, algorithms, workflows, interfaces, API’s, information management tools, plug-ins, add-ons, and code developed by ApexConnect or held by ApexConnect under a valid license and used in the operation of the ApexConnect Platform, whether or not protected or protectable, whether or not developed with input or feedback from Client or any third party, whether in source or object code form, and whether developed prior or subsequent to the date of this Agreement.
Launch Services. ApexConnect will provide Client with the following one-time services relating to the launch of the Platform. ApexConnect shall assist the Client to configure the integration software. The basic integration is bi-directional that enables a link between ApexConnect Systems, the ApexConnect Platform and Client’s information system to receive designated types of data. Additional interfaces and levels of integration may be ordered pursuant to an Order, related to exchange of data, records, and documentation. ApexConnect will provide training on the use of the Platform to designated Authorized Users.
Ongoing Software Services. ApexConnect shall provide Software services including, without limitation, Software Updates, the cost of which is included in the annual service fee to Client.
Hosting Services/SLAs. Hosting services for the Platform and all data will be provided by Microsoft (“Host”) using the Microsoft Azure cloud platform, and is subject to the terms and conditions of the Microsoft Online Services Terms. Microsoft’s service level agreement shall apply to all Orders.
Other Professional Services. Client may separately order any of the Professional Services set forth on the Order.
License and Restrictions
License Grant. Subject to the terms of this Agreement, ApexConnect hereby grants Client and its authorized staff (“Authorized End Users”), a non-exclusive, non-transferable, non-sublicensable license to use and operate the ApexConnect Platform during the Term.
Restrictions on Use. The following restrictions apply: (a) Client may not resell, make commercial use of, timeshare, rent or otherwise generate income from the Platform or Services; (b) Client shall not attempt to reverse engineer or decompile any of the Software; and (3) Client shall not use the Platform for any unlawful purpose. ApexConnect reserves the right to immediately restrict, suspend or terminate Client’s account for any conduct by Client or any Authorized User that ApexConnect believes in its sole discretion violates this Agreement.
Client’s Related Obligations. Client shall be solely responsible for maintaining its own connection to the internet.
Fees. Client shall pay ApexConnect the fees set forth in each Order according to the payment schedule set forth in the Order. Except where a certain date is specified in an Order, all invoiced fees are due and payable within thirty (30) days of receipt by the Client of an invoice.
Taxes. All amounts listed and payable under this Agreement exclude any and all applicable taxes related to sales or use, and any other taxes, and all applicable export and import fees, customs, duties, and similar charges. Client shall remain responsible for the payment of any such applicable charges.
Term and termination
Term. The term of this Agreement shall commence on the Effective Date and, unless sooner terminated in accordance with the Termination section hereof, shall continue until the end of the latest period specified in any Order executed within one year of the Effective Date (the “Term”).
Termination. This Agreement may be terminated: (a) by either Party, upon thirty (30) days written notice to the other Party, in the event of a material breach of this Agreement by the other Party that remains uncured after such thirty (30) day period has expired; (b) by either Party upon notice to the other Party in the case of the insolvency of the other Party, the voluntary or involuntary filing of an application or petition for protection under creditor’s rights or other similar laws, or any general assignment of assets by the other Party for the benefit of creditors, or (c) by Client without cause upon 30-day advance written notice. In the event of a termination pursuant to (c), Client shall pay ApexConnect for all amounts due through the effective date of such termination. Upon any termination of this Agreement, the Parties will cooperate in good faith to effect an orderly transition of services.
Confidential Information. ApexConnect and Client each acknowledge the need for confidentiality of the information furnished to it by the other Party and agree that confidential and proprietary information hereunder shall include, without limitation, the terms of this Agreement, all information concerning the architecture, operation, or performance of the ApexConnect Software and Platform and all components thereof, information regarding costs, pricing, marketing and business strategies, and all other information generally treated by businesses in a confidential and proprietary manner, in whatever form or medium maintained including, but not limited to all Client data and information disclosed to or used by ApexConnect or any of its technology, products or services (collectively, the “Confidential Information”). Each Party agrees not to use the other Party’s Confidential Information for any purpose other than the performance of this Agreement, and not to disclose such information except as permitted herein. Each Party agrees to limit access to the other Party’s Confidential Information to those of its representatives who have a need to know such information to perform his or her function. Each Party’s obligations under this paragraph will continue during the Term and will survive any termination of this Agreement. ApexConnect shall ensure that all employees, subcontractors, or consultants used in providing any services to Client under this Agreement shall be advised of the confidentiality obligations herein and shall be bound to same to the same extent as ApexConnect.
Exclusions. The provisions of this section do not apply to any Confidential Information which (i) is or becomes publicly available through no fault of the non-disclosing Party, (ii) is disclosed to a Party by a third party that is legally entitled to disclose such information, (iii) was known by the Party prior to its receipt from the disclosing Party hereunder, (iv) is developed by a Party independently of any disclosures made by the other Party hereunder, or (v) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, provided that prior to such disclosure, if permitted by law, the Party whose Confidential Information is to be disclosed is given reasonable advance notice of such order and an opportunity to object to or limit such disclosure.
Return of Information. Upon any termination of this Agreement, each Party will return or destroy all Confidential Information belonging to the other Party in such Party’s possession or control and, upon request, certify the completion of such steps; provided that each Party may retain archival records of such information as the Party is required to retain under applicable law, for such period as may be set forth in such law. Nothing in this section shall in any way diminish the confidentiality obligations of either Party under this Agreement.
Data Rights, Data Security and Intellectual Property
Data Rights. All Client information and data shall be and remain the sole and exclusive property of Client. ApexConnect shall not use or disclose such information except as necessary to perform this Agreement; provided that, subject to applicable federal and state laws and regulations, ApexConnect may use de-identified, aggregate statistical data for quality control, product development, and Platform maintenance purposes.
Data Security. ApexConnect will use reasonable efforts to establish and maintain safeguards to protect the security and integrity of the Service and protect against the accidental or unauthorized access, use, alteration or disclosure of the Content.
ApexConnect Intellectual Property. ApexConnect shall own and retain all right, title and interest in and to the intellectual property rights embodied in and appertaining to the Platform, including, without limitation all such rights in the Software and Services, together with all ApexConnect trademarks, service marks, designs, and logos, (collectively, the foregoing is the “ApexConnect Intellectual Property”). To the extent that ownership of the ApexConnect Intellectual Property does not automatically vest in ApexConnect by virtue of this Agreement or otherwise, Client hereby transfers and assigns all of its right, title, and interest in the same, and agrees to execute such further documents as may be required to perfect such interest.
Client Intellectual Property. Client owns and retains all right, title and interest in and to the intellectual property rights embodied in and appertaining to all Client Content and all Client trademarks, service marks, designs, and logos, (collectively, the “Client Intellectual Property”). To the extent that ownership of the Client Intellectual Property does not automatically vest in Client by virtue of this Agreement or otherwise, ApexConnect hereby transfers and assigns all of its right, title, and interest in the same, and agrees to execute such further documents as may be required to perfect such interest.
Legal Compliance. Each Party shall comply with all federal, state, and local laws and regulations applicable to its business. ApexConnect shall cooperate with Client in satisfying compliance requirements applicable to the operation of Client’s Facilities and its deployment of the ApexConnect System, including, without limitation, such requirements as may be imposed by the Medicare or Medicaid programs, the accreditation and professional standards of the Joint Commission, and onsite surveys by licensing or accrediting bodies.
Government End Users. The Platform, Software, and Services, any other ApexConnect proprietary software, and any documentation thereto are “commercial item(s)” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, ApexConnect provides the Platform, Software, and Services and any other ApexConnect proprietary information to the U.S. Government pursuant to the terms and conditions therein.
ApexConnect Representations and Warranties
Warranty of Skills. ApexConnect warrants and represents that Services performed by ApexConnect or by a permitted subcontractor or agent of ApexConnect shall be performed on a professional basis, consistent with the best practices in the industry and in a diligent, workmanlike, and expeditious manner.
Warranty of Performance. ApexConnect represents and warrants that the Software will perform in accordance with the service levels set forth in the Annual Service Addendum, subject to the conditions set forth therein and in the Host’s Online Services Terms and service level agreement.
Warranty of Title. ApexConnect represents and warrants that it holds all rights necessary to grant Client the license to use the Software and Platform as set forth in this Agreement without violating the rights of any third party and that there is no actual or threatened suit by any third party based on an alleged violation of such right by ApexConnect.