XEVANT PLATFORM CUSTOMER TERMS & CONDITIONS
These Xevant Platform Terms and Conditions (“Terms”) apply to and are part of the Xevant Platform Master Services Agreement (“Agreement”). These Terms govern Customer’s purchase of the access to the Xevant Platform, and, together with the applicable Order Form, constitute the entire agreement between IVIM, Xevant, and Customer regarding the Program and Platform. In the event of any conflict between these Terms and an Order Form, the terms set forth in the Order Form shall control.
1. IVIM Xevant Order Form
a. Xevant agrees to provide the Services as further described in the Order Form. Additional Service Orders will be deemed issued and accepted only if signed by an authorized representative of each Party, and upon such issuance and acceptance will be considered a part of this Agreement.
2. Customer Responsibilities
a. Customer agrees to (a) cooperate with Xevant in its performance of the Services (including, without limitation, by fulfilling any specific responsibilities of Customer that may be set forth in the applicable Service Order), and (b) respond promptly to any reasonable requests from Xevant for instructions, information, or approvals required by Xevant to provide the Services. Customer acknowledges that Xevant’s ability to provide the Services may be delayed or otherwise affected if Customer does not comply with its obligations set forth in this section. Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data.
3. Payment Terms
a. Customer shall pay Xevant upon receipt of an Invoice or a claim, in the amounts and as required in the Order Form. Xevant will forward payment to the IVIM Parties any fees that are owed to IVIM. Any amount not paid within 30 days from the date of invoice shall become subject to a finance charge equal to a simple rate of interest that is calculated on a daily basis and at a rate that is the lesser of (a) one and one-half percent (1.5%) and (b) the highest rate permissible under applicable law. Failure to pay as set forth in this section and the Order Form shall provide Xevant with the right to terminate these Terms consistent with Section 6 below.
4. Publicity
a. Other than as provided in these Terms, neither Customer nor Xevant will use for publicity, promotion or otherwise, any logo, name, or mark of the other party without that party’s prior, written, express consent. Notwithstanding the foregoing, (a) Xevant may identify Customer as a user of the Program, and Customer may identify IVIM a provider of Member benefits; and (b) Customer may use Xevant’s name and logo on promotional material that includes the Program Content to publicize the Program to Eligible Participants. The Parties may publicly announce they have entered into these Terms, but neither shall disclose the specific terms of the Order Form or these Terms (including pricing) to any other party not a part of this agreement.
5. Term and Termination
a. The Term shall be as set forth in the Service Order Form. Either party may terminate the Order Form and these terms: (a) without cause upon ninety (90) days prior written notice to the other party, and (b) for cause upon material breach by the other party, provided that such material breach continues uncured for thirty (30) days after receipt by the breaching party of written notice from the other party specifying such breach (including, but not limited to Customer’s failure to make payment as set forth in Section 5 in these Terms.
b. Effect of Termination. On the date of any termination or expiration of this Agreement, Xevant shall cease to provide the Services to Customer and Customer shall immediately discontinue use of the Services, the Xevant Platform, and the Deliverables, and Xevant may immediately terminate Customer’s and Service User’s access to the Services, the Xevant Platform, and the Deliverables. Following any notice Customer shall continue to provide Xevant with all data necessary to perform the Services until the termination date, including without limitation rebate submissions or any other data which is required to be submitted to Xevant to perform its services during the notification period All Confidential Information provided by either Party in connection with the Rebate Services shall, except for Confidential Information required by law to be retained by a Party, be immediately returned to the Disclosing Party or such Receiving Party shall certify to the Disclosing Party that such materials have been destroyed, except that Xevant shall be entitled to retain copies of Confidential Information to the extent required by standard document retention policies (including where required by laws or regulatory bodies).
6. Platform Use, Data, and Intellectual Property Rights
a. Access and Usage Rights. Subject to Customer’s compliance with the terms and conditions of this Agreement, including Customer’s payment of the Fees, Xevant hereby grants to Customer a limited, nonexclusive, non-transferable, non-sublicensable right during the Term to (a) access the functionality of the Xevant Platform, or portions or features thereof (as indicated in the applicable Service Order), solely through the interface(s) furnished or specified by Xevant; (b) make reasonable use of the Services and Deliverables, (c) use and print the Documentation in furtherance of such use, and (d) permit up to the authorized number of Service Users to do any of the foregoing solely for Customer’s benefit; all in a manner contemplated by this Agreement (including any limitations or restrictions set forth in Section 7.3 or the applicable Service Order) and as reasonably necessary to use the Services.
b. Restrictions and Limitations. Customer shall not, and shall ensure that its Service Users do not: (a) copy, modify, distribute, resell, rent, lease, sublicense, convey, make available to third parties (other than Service Users as permitted herein), translate, disassemble, reverse engineer, or decompile any portion of the Xevant Platform, Services, Deliverables, Documentation, or any associated software, technology, or other Intellectual Property; (b) tamper with or attempt to circumvent the security of the Xevant Platform, Services or Deliverables; (c) remove, alter, or obscure Xevant’s branding, proprietary rights markings, or notices on or in the Xevant Platform, Services, Deliverables, or Documentation; or (d) access or use the Xevant Platform, Services, Deliverables, or Documentation for any unlawful or infringing purpose, or for benchmarking or competitive analysis of Xevant’s products or services, or for purposes of developing, using, or providing any competing product or service, or for any other purpose that is to Xevant’s detriment or commercial disadvantage.
c. Ownership of Intellectual Property. As between the Parties, Xevant is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Xevant Platform, Services, Deliverables, and Documentation, and all Intellectual Property (including but not limited to software) associated with or required for the operation or provision of the Xevant Platform, Services, Deliverables, or Documentation, and any other proprietary rights and interests comprising and used to support or operate the Xevant Platform, Services or Deliverables. Customer acknowledges and agrees that Customer does not have, and will not acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease, or other right or interest in or with respect to any of the foregoing, except for the limited, non-exclusive access, usage, or other rights expressly provided in Section 7.2. All other rights in the foregoing are reserved by Xevant. The Xevant Platform, Services, Deliverables, and Documentation shall not be a “work made for hire” as defined in 17 U.S.C. §101.
d. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Xevant may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. All right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Xevant. Customer acknowledges that Xevant may compile Aggregated Statistics based on Customer Data input into the Xevant Platform. Customer agrees that Xevant may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
e. Service Users. Customer is responsible for all use of the Xevant Platform or Services by Service Users (or by any other person accessing or using the Xevant Platform or Services under Customer’s account or access credentials), and for any other acts or omissions of Service Users (or such other persons) in relation to the Services, Xevant Platform, Deliverables, or Documentation, as if they were the acts or omissions of Customer itself. Customer acknowledges and agrees that its Service Users are not intended third-party beneficiaries under this Agreement and that Xevant has no duties to any person other than Customer under this Agreement. Customer shall indemnify Xevant against any use of the Xevant Platform or Services by a Service User in breach of this Agreement and any claims by Service Users that Xevant has duties to such Service Users arising under or with respect to the Service provided under this Agreement.
f. Compliance with Law. Customer and its Service Users shall not use the Xevant Platform, the Services, the Deliverables, or the Documentation in any way that violates any applicable law (including, without limitation, any laws regarding the export of data to and from the United States or other countries).
g. Suspension of Services. Xevant reserves the right to suspend services immediately upon breach of this Agreement or misuse of the Services, including without limitation delayed payment, suspicious use or login activity, activity that poses a risk to the integrity of the Services, or breach or suspected breach of Section 7.b.
7. Confidentiality
a. Confidential Information. Each Party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other Party (the “Receiving Party”) certain non-public, commercially proprietary, confidential, or sensitive information, know-how, and trade secrets (including information regarding product plans, insurance plan designs, formulary development and strategies, products or services in “beta” or other preliminary versions, and any other information a reasonable person should understand to be confidential), which is disclosed by or on behalf of the Disclosing Party or its Affiliates to the Receiving Party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Agreement (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession, without restrictions on use or disclosure, prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. For the avoidance of doubt, Confidential Information of Xevant includes this Agreement and its terms (including any pricing offered by Xevant to Customer hereunder).
b. Protection of Confidential Information. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under applicable law, rule, or order, provided that the Receiving Party, to the extent legally permissible, provides the Disclosing Party with prior written notice of the required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy, and provided further that the Receiving Party discloses no more Confidential Information of the Disclosing Party than is reasonably necessary in order to respond to the required disclosure.
c. Equitable Remedies. The Parties recognize that the unauthorized disclosure, duplication, reproduction, or use of the Confidential Information by a Receiving Party would cause irreparable harm to the Disclosing Party and that monetary damages will be inadequate to compensate the Disclosing Party for such breach. Consequently, in the event of an actual or threatened breach by the Receiving Party of the provisions of this Section 8, the Disclosing Party will be entitled to seek injunctive relief or other equitable relief against the Receiving Party on the basis of there being an inadequate remedy at law or other reason. The Parties further agree to waive any requirement for the security or posting of any bond in connection with such remedy.
8. Indemnification
a. Each party shall be responsible for its own acts or omissions and any and all claims, liabilities, injuries, suits and demands and expenses of all kinds which may result or arise out of any alleged malfeasance or neglect caused or alleged to have been caused by either party, their employees, or representatives, in the performance or omission of any act or responsibility of either Party under the Order Form or these Terms. In the event that a claim is made against both parties, it is the intent of both parties to cooperate in the defense of said claim and to cause their insurers to do likewise.
9. HIPAA
a. The Parties acknowledge and agree that any Protected Health Information (including ePHI, “PHI”) that may be exchanged or disclosed during the Agreement is subject to the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended, and its implementation regulations, and the Business Associate Agreement attached to this Agreement (if any).
11. General
a. Notices. All notices, requests, consents, claims, demands, waivers, and other communications to be given hereunder by any Party to the other must be in writing and addressed to the other Party at its address set forth on the cover page of this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section 13.1). Unless otherwise agreed herein, all notices must be delivered by personal delivery in writing, or by mail, registered or certified, postage pre-paid with return receipt requested, or confirmed email. Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this section. Customer agrees to keep Xevant current as to Customer’s business and mailing addresses and other relevant contact information, including telephone numbers and email addresses for appropriate points of contact for purposes of this Agreement.
b. Additional Attachments. The Parties acknowledge that the Agreement may contain or incorporate by reference additional riders, addenda, or other attachments (“Additional Attachments”), including those that are specific to certain types of Services, as indicated on the Agreement’s cover page. Such Additional Attachments are meant to supplement, rather than replace, these General Terms; provided, however, that to the extent of any direct conflict, the terms of an Additional Attachment will take precedence over the conflicting provisions in these General Terms for purposes of the particular Services or other subject matter to which the Additional Attachment pertains.
c. Entire Agreement. This Agreement, including its cover page(s), these General Terms, and any Scope(s) of Work and Additional Attachments, constitutes the sole and entire agreement of the Parties pertaining to the subject matter hereof and supersedes all other prior and contemporaneous agreements and understandings of the Parties in connection therewith. Each Party acknowledges in particular that no oral or other representations, inducements, promises or agreements have been made by either Party hereto, or anyone acting on behalf of any Party hereto, that are not embodied herein. Attachments and exhibits shall be incorporated into this Agreement in their entirety. This Agreement may only be modified through a written agreement signed by both Parties. The headings, captions and sections contained in this Agreement are inserted for convenience only and shall not be used to interpret or construe any provisions of this Agreement.
12. Dispute Resolution
a. Except as expressly provided below in this Section 12.a, all controversies, claims, and disputes arising from or relating to this Agreement will be resolved by final and binding arbitration before a single neutral arbitrator located in Michigan, conducted under the applicable rules of the American Arbitration Association. The arbitrator’s award will be final and binding upon the Parties and judgment may be entered on the award. Each Party expressly waives its right to have any controversies, claims or dispute arising from or related to this Agreement decided by a court or jury. The Parties and the arbitrator will maintain in confidence the existence of the arbitration proceeding, all materials filed in conjunction therewith and the substance of the underlying dispute unless and then only to the extent that disclosure is otherwise required by applicable law.
b. If any court of competent jurisdiction holds any provision of the Order Form or these Terms invalid or unenforceable, then the other provisions of the Order Form or these Terms will remain in full force and effect. Any provision of the Order Form or these Terms held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
13. Other Engagements
a. Customer acknowledges that its relationship with Xevant, and the rights granted to Customer under this Agreement, are non-exclusive, and Xevant may provide the same or similar services to other Customers during the Term.
14. Waiver
a. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving
15. Counterparts
a. This Agreement may be executed in one or more counterparts, all of which together are deemed one and the same agreement. This Agreement may be executed and delivered by electronic methods and upon such delivery the electronic method of signature will be deemed to have the same effect as if the original signature had been delivered to the other Party.
