TERMS & CONDITIONS
MASTER LICENSE AND SERVICES AGREEMENT
Terms and Conditions
This agreement (hereinafter “Agreement”) is made by and between Dialog Health Inc. (“Dialog Health”) and (“Client”), each having a place of business at the address set forth on the Order Form attached hereto. This Agreement is effective as of the “Effective Date” set forth on the Order Form, which is incorporated by reference herein in its entirety. Dialog Health and Client are sometimes each individually referred to herein as a “Party” and collectively as the “Parties”.
1. General. This Agreement provides Client with a limited license to access and use Dialog Health’s proprietary suite of software-as-a-service mobile communication and engagement tools and applications known as the “Dialog Health PROTOCALL Platform” (the “Platform”), as well as associated services (the “Services”) as may be agreed upon in one or more Statements of Work hereto (“SOW”). Each SOW is incorporated by reference as if set forth in full herein. To the extent that the terms and conditions of any SOW are inconsistent with the terms and conditions of this Agreement, this Agreement will control unless otherwise expressly stated in such SOW.
2. Service Standards. All Services provided hereunder shall meet all applicable industry standards and be performed by Dialog Health and its agents and subcontractors, if any, in accordance with the SOW agreed upon by the parties and in a professional manner by qualified personnel trained and skilled in the performance of the specific services involved. The Platform will perform in accordance to the attached Dialog Health Service Standards, which is incorporated by reference herein and may be updated from time to time by Dialog Health upon 30 days written notice.
3. License to Dialog Health Applications. Subject to the terms of this Agreement, including any license package definitions or limitations set forth in the Order Form attached hereto as page 1 of this Agreement, Dialog Health hereby grants to Client for the duration of this Agreement, a worldwide, revocable, non-transferable, non-sublicensable, non-exclusive right and license to access and use the Platform and any associated applications, tools, modules specified in writing by Dialog Health (collectively, the “Licensed Applications”) to create and administer mobile communication and engagement campaigns and other initiatives (“Campaigns”) for promoting communication initiatives, services or programs of Client and Client’s third party customers (each a “Customer”, with the total number of active Customers limited by the number of “Customer Accounts” set forth on the Order Form). Client may designate a number of “Authorized Users” as set forth on the Order Form to access and use the Licensed Applications on behalf of Client and its Customers. Each Authorized user shall be an employee or agent of Client, and Client shall ensure that all Authorized Users adhere to the terms of this Agreement.
4. Intellectual Property Rights. Subject to any licenses expressly granted herein, Dialog Health shall retain all intellectual property rights in and title to all Dialog Health Applications and related work product arising from the Services (including, without limitation, all standard, optional and custom enhancements, modifications, concepts, methods, algorithms, tools, plug-ins, Dialog Health Content design changes, software updates and all related technical documentation). Client retains all intellectual property rights in all of Client’s pre-existing Content and other Client materials, including but not limited to customer data, text, pictures, sound, graphics, logos, symbols, marks, copyright material, video, and other materials supplied or generated by Client in connection with this Agreement (“Client Content”). Client hereby grants Dialog Health a non-exclusive, revocable license to use the Client Content for the sole purpose of providing services to Client under this Agreement.
5. Confidentiality. Each Party agrees that at all times during the term hereof and thereafter it will not make use of, disseminate, or in any way disclose the other Party’s Confidential Information (including without limitation proprietary and/or confidential intellectual property, data, source code, object code, methods, processes, technical or financial data, customer names or other information related to customers, products under development, trade secrets, policies or procedures) to anyone, except as authorized by this Agreement and to the extent necessary for performance hereunder. Each Party agrees that it will disclose Confidential Information only to those of its employees and contractors who need to know such information and who have previously agreed to be bound by the non-disclosure terms and conditions hereof. Each Party agrees that it will treat all Confidential Information of the other Party with the same degree of care as it accords its own Confidential Information, but in no event less than reasonable care.
6. Term and Termination. The initial term of this Agreement shall expire in accordance with terms defined in the Order Form, if not specified then thirty six (36) months from the Effective Date; unless modified pursuant to a SOW hereto, and shall automatically renew for successive one year renewal terms unless either Party notifies the other Party in writing of its desire not to renew this Agreement at least 90 days prior to the expiration of the then-current term. This Agreement may be terminated immediately by either Party upon the material breach by the other Party of any term or condition hereof that has not been cured within 30 days after the breaching Party receives written notice thereof. Upon expiration or termination hereof, any amounts owed to Dialog Health hereunder shall be immediately due and payable. Those Sections which by their nature are intended to survive termination or expiration of this Agreement shall so survive.
7. Fees / Payment. Fees pertaining to this Agreement are set forth in the Order Form. Unless otherwise agreed upon by the Parties, all setup fees and initial license fees are due upon execution of this Agreement. Commencement of work by Dialog Health is subject to receipt of all initial fees. Subsequent invoices remitted by Dialog Health to Client hereunder shall be due and payable within 30 calendar days of the invoice date unless otherwise provided in an applicable SOW. Late payment(s) shall bear interest at the rate of one and one-half percent (1.5%) per month, or the highest rate permitted by law, if less. All messaging aggregator, carrier and other 3rd party fees are subject to change upon 30 days notice. Client shall pay for 3rd party fees or fee increases incurred by Dialog Health on behalf of Client, or reimburse Dialog Health for all applicable 3rd Party Fees, including but not limited to short code fees, messaging fees, carrier lookup fees and other aggregator or carrier fees. If Client accrues unpaid balance(s) over 10 days past due, Dialog Health, at its sole discretion and in addition to other remedies including but not limited to the right to recover collection costs, may suspend the Services until such past due balances are paid.
8. Relationship of the Parties. Dialog Health shall provide the Services as an independent contractor on a non-exclusive basis, and nothing contained herein or otherwise shall be deemed to create any partnership, joint venture, employment, or relationship of principal and agent between the Parties.
9. Legal Compliance; Taxes. Each Party shall comply with all applicable governmental, legal and regulatory requirements pertaining to this Agreement. In its use of the Licensed Applications, Client shall not distribute any Client Content that: (a) infringes on the intellectual property rights of any third party; (b) violates any federal, state or local law, statute, ordinance or regulation; (c) is unsolicited, including without limitation junk mail or unsolicited bulk e-mail or SMS messages, or other advertising material to persons or entities that have not specifically agreed to receive Content or messages by opting-in in a lawful manner as permitted by participating mobile service providers and wireless carriers (each a “Carrier”). In the event of any violation or alleged violation of the terms of this Section 9 by Client, Dialog Health, in its sole discretion, may suspend or terminate Client’s access to the Platform and/or any corresponding Campaigns until Client demonstrates to the reasonable satisfaction of Dialog Health and/or its participating Carriers that such violation or alleged violation has been cured and access can be restored without substantial risk of harm to Dialog Health, its other clients and the Carriers. Client shall be responsible for its use of the Licensed Applications, including but not limited to obtaining any necessary licenses, permissions and/or campaign certifications. Except for Dialog Health’s federal and state income taxes and related costs, all taxes and tax-related costs arising from Client’s use of the Licensed Applications and/or the Services shall be paid by Client.
10. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 2 ABOVE, THE LICENSED APPLICATIONS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT).
11. Indemnification. Each Party shall defend the other against any third party claim, action, suit, or proceeding arising from any alleged negligent act, negligent omission, or misrepresentation by such Party hereunder. The indemnifying Party shall indemnify the other Party for all losses, damages, liabilities, costs, fines and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the other Party, its Affiliates or its and their respective officers, directors, employees, and shareholders as a result of or in connection with any such claim, action, suit, or proceeding; except that Dialog Health shall have no liability to indemnify if such claim, action, suit or proceeding arises out of (i) a modification by Client of the Services or any related software product, or (ii) a patent, copyright or other intellectual property right in which Client or any of its affiliates have an interest.
12. Limitations on Liability. Except with respect to gross negligence or willful misconduct or breaches under Section 5 (Confidentiality), the liability of each party under this agreement shall be limited to actual damages, the aggregate amount of which shall not exceed the amount paid by Client to Dialog Health hereunder, and in no event shall either Party be liable under or in connection with this Agreement to the other or any other person or entity for any loss of profit or any consequential, special, exemplary, punitive or indirect damages of any nature, for any reason, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability) or otherwise, even if advised of the possibility of such damages.
13. Publicity. Unless otherwise limited in writing by Client, Dialog Health may publicly refer to Client as a client of Dialog Health as part of its marketing activities, including but not limited to displaying Client’s logo on Dialog Health’s website.
14. Governing Law. The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the Parties shall be governed by the laws of the State of Tennessee, without regard to its conflict of laws principles. The parties agree that any actions arising under this Agreement shall be brought exclusively in the applicable state or federal courts located in Davidson County, Tennessee. Each Party agrees to submit itself to the jurisdiction and venue of such courts for the purposes of any such action.
15. Entire Agreement. This Agreement, together with all Statements of Work and other attachments hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all agreements or understandings, whether written or oral, between the Parties with respect to such subject matter. Any capitalized term used but not defined in the exhibits to this Agreement shall have the meanings set forth herein.
IN WITNESS WHEREOF, as evidenced by their respective signatures on the ORDER FORM of this Agreement, duly authorized representatives of Dialog Health Mobile and Client have read these Terms and Conditions and all exhibits and documents incorporated herein, and agree and accept such terms effective as of the Effective Date.