Terms and Conditions

These Terms and Conditions (these “Terms”) shall govern the sale of product(s) and/or services by and between Innovare – Social Innovation Partners and its affiliates (“Innovare”) and the party ordering the product(s) and/or services (“You” or “Client”) on this website www.innovaresip.com (“Website”). By using this Website, You agree that these Terms shall apply to Innovare’s provision of its https://app.innovaresip.com (the “Applications”), the services related thereto, and the sale or rental of Equipment (if any) purchased by You via the Website or the Applications, or as otherwise specified on any Innovare general service contract (“Service Contract”) and any applicable statement of work (“SOW”, and together with the Service Contract, the “Contract”). The Applications described on the Contract shall be delivered by means of Client’s permitted access to the Website. By using the Website, You hereby agree and consent to be legally bound by these Terms. If there is a conflict between the terms of these Terms and the Contract, these Terms shall control.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE OR THE APPLICATIONS. THESE TERMS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THE WEBSITE OR YOUR LAST USE OF THE APPLICATIONS. YOUR CURRENT USE OF THIS WEBSITE AND/OR THE APPLICATIONS CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THESE TERMS FOR YOUR CURRENT USE. EACH TIME YOU MAKE USE OF THIS WEBSITE OR THE APPLICATIONS, REVIEW THESE TERMS AGAIN IN ORDER TO ENSURE THAT YOU ARE AWARE OF AND ACCEPT THE THEN-CURRENT TERMS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THIS WEBSITE OR THE APPLICATIONS.

BY MANUALLY OR ELECTRONICALLY EXECUTING A CONTRACT REFERENCING THESE TERMS OR TO WHICH THESE TERMS ARE ATTACHED, CLIENT AGREES TO THESE TERMS FOR ALL SOWS. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF CLIENT REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND CLIENT. THESE TERMS AND THE CONTRACT (AND ANY ATTACHMENTS THERETO) TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CLIENT AND INNOVARE.

1. DEFINITIONS

“Agreement” means the Contract and these Terms.

Application(s)” or “SaaS Application(s)” means those Innovare software application programs purchased by You via the Website or other Innovare applications, or as otherwise set forth on an SOW which are made accessible for Client to use under the terms of the Agreement.

“Confidential Information” means any non-public information of a party or its Suppliers relating to such entity’s business activities, financial affairs, technology, marketing or sales plans that is disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party, because of the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the disclosing party or its Suppliers, including the existence and terms of the Contract.

“Client Content” means all content Client, or others acting on behalf of or through Client, posts or otherwise inputs into the Services.

“Content” has the meanings ascribed in Section 7.4.

“Equipment” means any virtual infrastructure equipment purchased or rented by Client under the Agreement (e.g., off-site or cloud memory or servers).

“Initial Term” means the initial term of the Services (inclusive of any “trial” period, if applicable).

“SOW” means an SOW mutually agreed upon by Innovare and Client setting forth the items ordered by Client and to be provided by Innovare and the Fees to be paid by Client.

“Personally Identifiable Data” means personal information concerning identifiable individuals that is protected against disclosure under applicable law or regulation.

“Renewal Term” means the renewal term of the Services.

“Services” means (i) accessibility to the commercially available version of the Applications by means of access to the password protected client area of the Website, and all such services, items and offerings accessed by Client therein, and (ii) the Equipment purchased or rented hereunder, if any.

“Supplier” means any contractor, subcontractor, licensor, or Third Party Service Provider of Innovare providing software, equipment and/or services to Innovare which are incorporated into or otherwise related to the Services.

“Term” means the Initial Term and any Renewal Terms thereafter.

2. TERM; TERMINATION

2.1 The Services shall commence on the date on which the Services are purchased by You via the Website or the effective date of the Contract, as the case may be, and shall continue for the Initial Term or until terminated in accordance with the provisions hereof. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms, unless Client provides written notice to Innovare at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as the case may be, unless the Agreement is earlier terminated in accordance with the provisions hereof.

2.2 Innovare may terminate the Services and/or this Agreement upon no less than ten (10) business days prior written notice.

2.3 Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, Innovare may suspend the Services immediately upon notice in the event of any Client breach of Sections 4 (Rights to Use), 5 (Acceptable Use), or 17 (Confidential Information).

2.4 In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting party’s reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.

2.5 If the Agreement is terminated for any reason:

(a) Client’s right to access and use the Applications subject to the terms and conditions of the Agreement will continue until the expiration of the Initial Term or the then-current Renewal Term, as the case may be;

(b) Client shall not be entitled to any refund of the Fees paid for the access and use of the Applications for the Initial Term or the then-current Renewal Term, as the case may be;

(c) Client shall pay Innovare within thirty (30) days of such termination, all other fees accrued under the Agreement prior to the effective date of such termination;

(d) Subject to Innovare’s continued permitted use set forth in Section 6 and elsewhere in these Terms, no more than fifteen (15) business days after termination (or upon Client’s written request at any time during the Term), Innovare will provide to Client, at no charge to Client, the Client Content. After such time period, Innovare shall have no further obligation to store or make available the Client Content and will securely delete any or all Client Content without liability;

(e) Client agrees to timely return all Innovare-provided materials related to the Services to Innovare at Client’s expense or, alternatively, destroy such materials and provide Innovare with an officer’s certification of the destruction thereof; and

(f) All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.

3. FEES AND PAYMENT

3.1 Client shall pay Innovare the Fees via the Website or as otherwise set forth in the Contract. Unless the Fees are paid via the Website, Innovare will invoice Client in accordance with the schedule set forth on the Contract or the applicable SOW. Invoices shall be due ten (10) business days following the date of invoice unless otherwise indicated on an SOW. Except as expressly set forth in the Agreement, all amounts paid to Innovare are non-refundable. Client is responsible for all applicable taxes relating to the goods and services provided by Innovare hereunder.

3.2 If any amount owing under this or any other agreement between the parties is thirty (30) or more days overdue, Innovare may, without limiting Innovare’s rights or remedies, suspend the Services until such amounts are paid in full.

3.3 Except as otherwise provided herein, all Services are non-returnable and non-refundable and all sales are final.

4. RIGHTS TO USE

4.1 Subject to the terms and conditions of the Agreement, Innovare hereby grants Client a limited, revocable, non-exclusive, non-transferable, non-assignable right to use during the Term and for internal business purposes only: a) the Applications and related services, including the Content and training materials; and, b) any embedded third party software, libraries, or other components, which form a part of the Services. The Services contain proprietary trade secret technology of Innovare and its Suppliers. Unauthorized use and/or copying of such technology are prohibited by law, including United States and foreign copyright law. Client shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Client agrees not to use any other modules or features unless Client has licensed such additional modules or features. No license, right, or interest in any Innovare trademark, trade name, or service mark, or those of Innovare’s licensors or Suppliers, is granted hereunder. When using and applying the information generated by the Services, Client is responsible for ensuring that Client complies with applicable laws and regulations.

4.2 Client may authorize its employees to access the Services through Client’s administrative access privileges on an as needed basis, provided Client: (a) abides by its obligations to protect Confidential Information as set forth in this Agreement; and (b) remains responsible for all such employee usage and compliance with the Agreement.

4.3 Client acknowledges and agrees that, as between Client and Innovare, Innovare retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Client, Client shall not obtain or claim any rights in or ownership interest to the Services or any associated intellectual property rights in any of the foregoing. Client agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Client through the Services.

4.4 Innovare may make updates and upgrades to the Services (tools, utilities, improvements, third party applications, general enhancements) available to Client at no charge as they are released from time to time to some or all of its clients as part of the Services. Client agrees to receive those updates automatically as part of the Services. Innovare or its Third Party Service Providers also may offer new products and/or services to Client via in-app purchases or under a separate SOW which Client shall have the option to purchase such new products and/or services at an additional charge.

4.5 Innovare reserves the right to change the Services, in whole or in part, including but not limited to, the Internet based services, technical support options, and other Services-related policies. Client’s continued use of the Services after Innovare posts or otherwise notifies Client of any changes indicates Client’s agreement to those changes.

5. ACCEPTABLE USE

5.1 Client shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of this Agreement.

5.2 Client represents and warrants to Innovare that Client has the right to publish and disclose the Client Content in connection with the Services. Client represents and warrants to Innovare that the Client Content: (a) does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, or (c) is not hateful or threatening.

5.3 Client will not (a) use, or allow the use of, the Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or alter, damage, delete, retrieve or record information about the Services or its users; (c) excessively overload the Innovare systems used to provide the Services; (d) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; (e) use any tool designed to automatically emulate the actions of a human user (e.g., robots); or (f) otherwise act in a fraudulent, malicious or negligent manner when using the Services.

6. CONNECTIVITY AND ACCESS

Client acknowledges that Client shall (a) be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software, third party services and related equipment and components); and (b) provide Innovare and Innovare’s representatives with such physical or remote access to Client’s computer and network environment as Innovare deems reasonably necessary in order for Innovare to perform its obligations under the Agreement. Client will make all necessary arrangements as may be required to provide access to Client’s computer and network environment if necessary for Innovare to perform its obligations under the Agreement. Innovare is hereby granted access to such Client data to perform its obligations under the Agreement and to use the Client data in order to modify, alter or improve the Applications or the Services.

7. IMPLEMENTATION AND SUPPORT

7.1 Implementation. Innovare will configure the Services utilizing scheduled remote resources. Software module configuration will be based on information obtained from Client during implementation. Client shall provide Innovare with necessary configuration-related information in a timely manner to ensure that mutually agreed implementation schedules are met.

7.2 Standard Support. Innovare will provide email support 9:00 a.m. to 5:00 p.m., U.S. Central Time, Monday – Friday.

7.3 Materials and Content. Client may have access to certain materials and content (the “Content”) within the Services. Client recognizes and agrees that any Content is copyrighted by Innovare. Client is permitted to make copies of the Content provided in .pdf or csv form solely for Client’s internal purposes and may not disclose such Content to any third party other than Client’s employees. Client may not edit, modify, revise, amend, change, alter, customize or vary the Content without the written consent of Innovare, provided that Client may download and modify contents solely for Client’s internal use in accordance with the Agreement.

8. CLIENT CONTENT

Client shall own all Client Content. Innovare acknowledges that all of the Client Content is deemed to be the Confidential Information of Client. Notwithstanding the foregoing, Client grants Innovare permission to use Client’s data in order to evaluate and improve the services Innovare offers to clients, aggregate and examine data to study trends, and promote content to Client. In addition, Innovare may, but shall have no obligation to, monitor Client Content from time to time to ensure compliance with the Agreement and applicable law.

9. THIRD PARTY SERVICE PROVIDERS

In the event Innovare requires or desires to use the services of any third party service provider (“Third Party Service Provider”) to provide some or all of Services to You, Innovare may elect to engage such Third Party Service Provider to do so, and You hereby expressly consent to the provision of some or all of the Services by the Third Party Service Provider. Innovare may also promote and market to You additional services and/or products offered by Third Party Service Providers, and You hereby expressly consent to receiving such promotions and marketing of additional services or products offered by Third Party Service Providers. You hereby agree and consent to Innovare’s provision of Client Content or other Client data to any such Third Party Service Provider as may be necessary to perform the Services, to evaluate and improve the services Innovare offers to clients, and to use such content and data for research and study.

10. LIMITED WARRANTY; DISCLAIMERS OF WARRANTY

10.1 Innovare represents and warrants to Client that the Services, under normal operation and when used as authorized herein, will perform substantially in accordance with the intended use during the Term.

10.2 Innovare’s sole obligation and Client’s sole and exclusive remedy for any breach of the foregoing warranty is limited to Innovare’s reasonable commercial efforts to correct the non-conforming Services at no additional charge to Client. In the event that Innovare is unable to correct material deficiencies in the Services arising during the warranty period, after using Innovare’s commercially reasonable efforts to do so, Client shall be entitled to terminate the then remaining Term of the Agreement as Client’s sole and exclusive remedy. Innovare’s obligations hereunder for breach of warranty are conditioned upon Client notifying Innovare of the material breach in writing, and providing Innovare with sufficient evidence of such non-conformity to enable Innovare to reproduce or verify the same.

EXCEPT AS PROVIDED FOR IN THIS SECTION 10, INNOVARE HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, INNOVARE MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICES, THE SAAS APPLICATIONS OR THE EQUIPMENT NOR ANY RESULTS TO BE ACHIEVED THEREFROM.

11. DATA SECURITY

11.1 As part of the Services, Innovare shall provide administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Client data. Client acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Client should consider any particular Innovare supplied security-related safeguard as just one tool to be used as part of Client’s overall security strategy and not a guarantee of security. Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the parties under the Agreement.

11.2 As between Client and Innovare, all Personally Identifiable Data is Client’s Confidential Information and will remain the property of Client. Client represents that to the best of Client’s knowledge such Personally Identifiable Data supplied to Innovare is accurate. Client hereby consents to
the use, processing or disclosure of its Confidential Information, including Personally Identifiable Data, by Innovare and Innovare’s Suppliers wherever located to the extent such use or processing is necessary for Innovare or Innovare’s Suppliers to carry out their duties and responsibilities set forth in the Agreement or elsewhere or as may be required or permitted by law.

11.3 Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter, Client agrees to provide notice to Innovare of any extraordinary privacy or data protection statutes, rules, or regulations which are or become applicable to Client’s industry and which could be imposed on Innovare or its Suppliers as a result of provision of the Services. Client will ensure that: (a) the transfer to Innovare and storage of any Personally Identifiable Data by Innovare or Innovare’s Supplier’s data center is permitted under applicable data protection laws and regulations; and, (b) Client will obtain consents from individuals for such transfer and storage to the extent required under applicable laws and regulations.

11.4 Innovare may use a third-party credit card merchant to take Your payment. You hereby authorize Innovare to save Your payment information for subsequent in-application purchases. This third-party will check and process Your payment details. There are strict obligations that govern credit card merchants’ handling of personal data. However, Innovare cannot be held responsible for actions by this third-party. Innovare accepts no liability for loss and/or damage, whether direct or indirect, that Client may suffer as a result of this third-party’s acts and/or omissions. Innovare advises Client to print and retain a copy of each card transaction for future reference.

11.5 There is an inherent risk that any communication, whether by e-mail, fax, telephone, or post, can be intercepted by third-parties. Innovare does not accept any liability for external compromise of security and/or confidentiality in relation to transmissions sent by any of these media.

11.6 The Applications and the Website may place cookies on Your computer. Cookies are software applications placed on computer hard drives by many websites. The aim of a cookie is to track website preferences and habits in order to make visits more productive. You should ensure that Your browser software is set not to accept cookies if You do not wish to receive them.

12. ACCOUNT AND PASSWORD

12.1 Client may be required to register an account and create a password to access portions of the Website. If Client creates an account, Client agrees to: (a) provide accurate, current, and complete information about itself; and (b) maintain and promptly update such information to keep it accurate, current, and complete. If Client provides any such information that is untrue, inaccurate, or incomplete, or Innovare has reasonable grounds to suspect that such information is untrue, inaccurate, or incomplete, Innovare has the right to suspend or terminate any account You establish in connection with Your use of the Applications or the Website and refuse any and all current or future use of the Applications or the Website or any portion thereof.

12.2 Client agrees to be fully responsible for all access, use and activities that occur under its account and password. Client is solely responsible for maintaining the confidentiality of its account and password. Client must not disclose its account and password to anyone other than authorized employees. Client agrees to immediately notify Innovare of any breach of security of its account or password, such as theft, unauthorized use, attempted use, or tampering. Client may be held liable for losses incurred by Innovare or any other user of the Applications or the Website due to an unauthorized third party using Client’s account or password as a result of Client’s failure to keep its account information secure and confidential.

13. PRIVACY AND CONSENT TO USE CUSTOMER CONTENT

The information that Innovare obtains through Client’s use of the Applications and the Website, whether through the registration process or otherwise, is subject to Innovare’s Privacy Policy. Innovare’s Privacy Policy addresses Innovare’s collection and use of the data Client provides to Innovare, including Your rights relative to that information.

14. ELECTRONIC COMMUNICATIONS

The information communicated through the Applications or the Website constitutes an electronic communication. From time to time Innovare may communicate with You through a Third Party Service Provider application. When You communicate with Innovare through the Applications, the Website, or a Third Party Service Provider application, or via other forms of electronic media, such as e-mail, You are communicating with Innovare electronically. You agree that Innovare may communicate electronically, subject to local privacy laws, and that such communications, as well as notices, disclosures, agreements, and other communications that Innovare provides to You electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. Notwithstanding anything to the contrary, Innovare cannot be held responsible for any security or data breach due to the acts or omissions of any Third Party Service Provider in the transmittal of these communications.

15. INDEMNIFICATION

15.1 Innovare shall defend Client and its respective directors, officers, and employees (collectively, the “Client Indemnified Parties”), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits, brought by a third party (each a “Claim”) alleging that the permitted uses of the Services infringe or misappropriate any United States copyright or patent and will indemnify and hold harmless the Client Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys’ fees) actually awarded to a third party as a result of such Claim by a court of applicable jurisdiction or as a result of Innovare’s settlement of such a Claim. In the event that a final injunction is obtained against Client’s use of the Services by reason of infringement or misappropriation of such copyright or patent, or if in Innovare’s opinion, the Services are likely to become the subject of a successful claim of such infringement or misappropriation, Innovare, at Innovare’s option and expense, will use commercially reasonable efforts to (a) procure for Client the right to continue using the Services as provided in the Agreement, (b) replace or modify the Services so that the Services become non-infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after provision of a refund to Client of the Fees paid by Client for the infringing elements of the Services covering the period of their unavailability.

15.2 Innovare shall have no liability to indemnify or defend Client to the extent the alleged infringement is based on: (a) a modification of the Services by anyone other than Innovare; (b) use of the Services other than in accordance with the Content for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, equipment, service or software not provided by Innovare, where the Services would not otherwise itself be infringing or the subject of the claim; or (d) use of the Services by Client other than in accordance with the terms of the Agreement.

15.3 Client shall defend Innovare, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the “Innovare Indemnified Parties”) harmless, from and against any and all Claims alleging: (a) Client has breached the terms of the Agreement; (b) Client engaged in gross negligence or intentional misconduct; (b) Client modified or combined the Services with other services, software or equipment not furnished by Innovare, provided that such Client modification or combination is the cause of infringement and was not authorized by Innovare; or, (c) Client Content infringes in any manner any intellectual property right of any third party, or any of the Client Content contains any material or information that is obscene, defamatory, libelous, or slanderous, or violates any person’s right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person.

16. LIMITATION OF LIABILITY

16.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, INNOVARE WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE OF THE SERVICES OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES.

16.2 EXCEPT FOR INNOVARE’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 15 ABOVE, IN NO EVENT SHALL INNOVARE OR INNOVARE’S SUPPLIERS, THEIR RESPECTIVE AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER INNOVARE OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.

16.3 EXCEPT FOR INNOVARE’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 15 ABOVE, THE TOTAL AGGREGATE LIABILITY OF INNOVARE TO CLIENT AND/OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES PROVEN BY CLIENT, SUCH DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY INNOVARE FROM CLIENT FOR THE SERVICES PROVIDED TO THE CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.

16.4 INNOVARE DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY RELATED TO (A) ANY ACTS OR OMISSIONS OF SUPPLIERS, OR (B) ANY BREACH OF DATA SECURITY OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS RESULTING FROM ANY EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING WITHOUT LIMITATION VIRUSES, TROJAN HORSES, AND WORMS), CLIENT’S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED ACCESS OF EQUIPMENT, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR.

17. CONFIDENTIAL INFORMATION

17.1 Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties the other party’s Confidential Information, or use it for any purpose not explicitly authorized herein, without the prior written consent of the other party. The obligation of confidentiality shall survive for five (5) years after the return of such Confidential Information to the disclosing party or five (5) years after the expiration or termination of the Agreement, whichever is later, as applicable.

17.2 Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such party or in the case of Innovare, any Third Party Service Provider; or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and have executed a non-disclosure agreement with obligations at least as stringent as this Section 17; or (c) by law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement, provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section 17, the other party shall have the right to seek injunctive relief from a court of
competent jurisdiction.

17.3 This Agreement imposes no obligation upon either party with respect to the other party’s Confidential Information which the receiving Party can establish: (a) is or becomes generally known through no breach of the Agreement by the receiving party, or (b) is already known or is independently developed by the receiving party without use of or reference to the Confidential Information.

18. CHANGES TO APPLICATIONS

Innovare may update the content and/or features of the Applications from time to time at its discretion. Some content or features may not be available to all clients, in Innovare’s sole discretion.

19. GENERAL

19.1 Innovare may revise and update these Terms from time to time in its sole discretion. All changes are effective immediately upon posting and apply to all access to and use of the Applications and the Website thereafter. Client’s continued use of the Applications and the Website following the posting of revised Terms means that Client accepts and agrees to the changes.

19.2 This Agreement shall be governed by and construed in accordance with the laws of Illinois without regard to any conflict of law provisions. You agree to the exclusive jurisdiction and venue in the state and federal courts located in Cook County, Illinois and waive any objection to such jurisdiction or venue. Any claim under these Terms must be brought within one year after the cause of action arises, or such claim or cause of action is barred. The prevailing party will be entitled to costs and attorneys’ fees.

19.3 The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.

19.4 Client shall not assign the Agreement or the rights to use the Services without the prior written consent of Innovare and any purported assignment, without such consent, shall be void. Innovare shall have the right to assign the Agreement, the Applications, or the Website to any affiliate or to any person or entity that acquires or succeeds to all or substantially all of Innovare’s business or assets (by merger, consolidation or otherwise).

19.5 Neither party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material
shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefor, or lack of or delay in transportation (each a “Force Majeure Event”).

19.6 Use of the Service includes the ability to enter into agreements and/or to make transactions electronically. CLIENT ACKNOWLEDGES THAT WHEN IT INDICATES ACCEPTANCE OF AN AGREEMENT AND/OR TRANSACTION ELECTRONICALLY, THAT ACCEPTANCE WILL CONSTITUTE ITS LEGAL AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. THIS ACKNOWLEDGEMENT THAT CLIENT
INTENDS TO BE BOUND BY SUCH ELECTRONIC ACCEPTANCE APPLIES TO ALL AGREEMENTS AND TRANSACTIONS CLIENT ENTERS INTO THROUGH THE SERVICE, SUCH AS ORDERS, CONTRACTS, STATEMENTS OF WORK, AND NOTICES OF CANCELLATION.

19.7 This Agreement and any information expressly incorporated by reference herein, together with the applicable SOW, constitute the entire agreement between the parties for the Services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement. This Agreement may be amended only in writing signed by authorized representatives of both parties. Client understands and acknowledges that while Innovare may disclose to clients certain confidential information regarding general Service or product development direction, potential future Services, products or product enhancements under consideration, Client is not entitled to any Services, products or product enhancements other than those contained on the SOW. Client has not relied on the availability of any future version of the Services (including SaaS Applications or equipment) identified on an SOW, nor any other future product in executing the Agreement.

19.8 Any dispute arising out of or in any way relating to this Agreement shall be resolved by binding arbitration in Cook County, Illinois pursuant to the rules of the American Arbitration Association. Judgment upon the arbitrator’s award may be entered in any court of competent jurisdiction. The parties expressly submit and agree to the jurisdiction and venue as provided herein. The parties shall equally share the arbitrator’s fees; provided, however, that the arbitrator may direct recovery of such fees as costs by the prevailing party.

Last updated May 28, 2020

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