Client wishes to obtain, and Artemis ABA Inc wishes to grant to Client, a right to access and use Artemis (hereafter referred to as the “System), a Scheduling, Session note and Billing software hosted by Artemis ABA Inc via the website at the uniform resource locator to be provided to Client by Artemis ABA Inc prior to commencement of Client’s access to The System (as defined below) under this Agreement (“Website”) and related documentation including user manuals and other documents (“Documentation”) subject to and in accordance with the terms and conditions of this Agreement.
In consideration of the terms and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties agree as follows:
1. Consent to Use. Subject to the terms and conditions of this Agreement, Artemis ABA Inc. grants Client a limited, revocable, non-transferable access during the term of this Agreement to:
A. System. Access and use The System solely for Client’s Internal Business Purposes in connection with features as listed in Addendum A.
“Client may access and use The System only from personal computers located at the “Authorized Sites” (as identified on Addendum A and as it may be amended in accordance with this Agreement from time-to-time). Notwithstanding anything to the contrary herein and provided an End User (defined below) primarily accesses The System from personal computers located at an Authorized Site, that same End User may (subject to the other provisions of this Agreement) access The System from a portable or home computer used by such authorized End User, provided such access is affected through the Client's network at an Authorized Site. Under no circumstances may the Client be headquartered in, any of the Authorized Sites located in, or any End User access The System from any country subject to embargo or sanction by the United States Department of the Treasury’s Office of Foreign Assets Control. Artemis ABA Inc may modify The System at any time for any reason.
B. Documentation. Use the Documentation solely for Client’s internal business purposes in connection with the purposes identified in Section 1.A. and for no other purpose. Subject to the terms and conditions contained herein, Client may copy the Documentation and distribute such copies to End Users for use for such purposes. Client agrees to use only the most recent version of the Documentation and to destroy or return to Artemis ABA Inc at its request any superseded version of the Documentation. Artemis ABA Inc may modify the Documentation at any time for any reason.
2. Limitations and Restrictions. Without limiting the foregoing, the following are certain limitations and restrictions on such use and access:
A. Client acknowledges and agrees that The System and Documentation are owned by Artemis ABA Inc. Artemis ABA Inc shall retain all right, title and interest in and to The System and Documentation and all modifications and enhancements thereof and additions thereto, including ownership of all patents, trade secrets, copyrights and other associated proprietary and intellectual property rights pertaining thereto.
B. Client may not use or access The System in any way that in Artemis ABA Inc’s sole judgment adversely affects the performance or function of The System or interferes with the ability of other authorized parties to access The System. Artemis ABA Inc may suspend Client’s access to and/or use of The System, without credit, at any time if, in Artemis ABA Inc.’s sole discretion, the performance, integrity or security of The System is in danger of being compromised as a result of such access or use.
C. Client may not use The System to gain access, or attempt to gain access, to any Artemis ABA Inc computer system, website, or database, other than The System to which Client is expressly permitted access under this Agreement.
D. Only Client’s employees, agents and contractors who have a specific need to access and use The System for the purposes identified in Section 1.A. and for no other purpose are permitted to access and use The System (“End Users”). All End Users must be specifically authorized by Client pursuant to Section 7 hereof and may access The System only through their assigned user IDs and passwords. An End User may not hide or attempt to hide the End-User’s identity when accessing The System.
E. Client agrees to use The System and Documentation only in strict compliance with the applicable laws, rulings and regulations of the U.S. and any applicable foreign jurisdiction.
F. Any access to or use of The System and/or Documentation that is inconsistent with the terms herein is unauthorized and strictly prohibited without the express prior written consent of Artemis ABA Inc.
G. Client agrees that its use of The System and Documentation will be in compliance with any usage requirements provided by Artemis ABA Inc from time to time.
H. Client understands that Artemis ABA Inc makes The System available over the Internet and that the Internet is an open system that is not under Artemis ABA Inc's control. Accordingly, Client agrees that Artemis ABA Inc shall not be held responsible or liable, directly, or indirectly, for any loss, damage, or delay caused or alleged to have been caused by acts or omissions of third parties in accessing The System or Client’s data or other information through or intercepting such data or other information, or other communications, of Client transmitted over the Internet. This provision shall apply with equal effect even where The System features or displays a link to another party’s website.
3. Services. Client may use The System only in connection with the purposes identified in Section 1.A. (“Services”) and as otherwise authorized herein, and only in accordance with this Section 3.
A. Artemis ABA Inc shall provide hosting for The System as part of the Monthly Fees (as defined below). Artemis ABA Inc shall also provide storage of all of Client’s data for use in The System up to a maximum of 10 GB of storage as part of Client’s Monthly Fees. Additional storage shall be available for an additional fee.
B. Artemis ABA Inc shall perform the initial set up of The System by configuring and setting up information required for The System’s functioning; provided, however, Client has all other items (including, without limitation, all software, hardware, network, and information and data) to complete the set up of Client’s access to The System. Additional set up and configuring services shall, if mutually agreed by the parties, be performed at the hourly rates specified below.
C. Artemis ABA Inc shall provide limited email based technical support to Client, beyond the regular 4 hrs. of phone-based support per month. Client shall have access to such support system through email. Technical support provided hereunder shall be limited to customary email-based support, such as responses to inquiries regarding The System and supporting Client’s use of and access to the functionality of The System as subscribed to by Client. Technical support does not include any enhancement to or other modification of any aspect of The System (which shall be considered an enhanced service, as provided in clause (iv) of Section 5.A. of this Agreement). Technical support shall be available to registered End Users during normal business hours (between 9:00a.m. and 5:00p.m. local time in Dallas, Texas) excluding weekends and holidays. To submit a support request, Client must send an email to email@example.com. healthcare if The System is not functioning. Support requests shall be assigned a tracking number when submitted by Client and Artemis ABA Inc shall normally provide a status report on the response to the request within Two (2) business day following the time the tracking number was assigned during published support hours. Artemis ABA Inc. shall work in good faith to resolve support requests in a timely manner given the nature of the request. Client hereby authorizes Artemis ABA Inc. to perform any work on Client’s data and/or other information necessary for the proper function of The System. Only trusted employees of Artemis ABA Inc shall have access to Client’s data and/or other information to perform routine maintenance and disaster prevention and other Services. Artemis ABA Inc shall use reasonable efforts to maintain the security of the Client’s data and/or other information at all times using appropriate security methods such as firewalls and password protection and ensuring the physical security of the server housing Client’s data in The System.
D. If Artemis ABA Inc receives notice of a Critical Problem, Artemis ABA Inc will, as soon as practicable, use commercially reasonable efforts to resolve the Critical Problem. Artemis ABA Inc will send periodic electronic communication to Client detailing the efforts being undertaken and the estimated time within which the Critical Problem will be remedied, if known. As used herein, “Critical Problem” means any service problem with The System itself (i.e., not caused by any external reason) that renders any material portion of the functionality of The System unusable by the Client.
E. Client shall be responsible for entering its data into The System and ensuring the accuracy of such data.
4. Service Level.
In the event The System is completely unavailable for a cumulative period exceeding 24 hours in any one calendar month, Client will receive a refund equivalent to one day of Client’s Monthly Fees for that month. Client will receive an additional refund of one day of the Monthly Fees for each additional eight hours of unavailability to a maximum of ten percent (10%) of the total Monthly Fees paid to Artemis ABA Inc for that month. All refund calculations will be based on unavailability in full one-hour increments. This unavailability calculation shall exclude and otherwise not cover outages caused by or due to (i) equipment and/or events not under the direct control of Artemis ABA Inc or caused by individuals not directly employed by Artemis ABA Inc, and/or (ii) scheduled or emergency network/equipment/facility maintenance of The System. Refunds under this Section 4 shall be the sole and exclusive remedy of Client under this Agreement in the event that The System is completely unavailable at any time during a calendar month.
5. Fees and Expenses.
A. Client shall pay to Artemis ABA Inc the applicable Services fees (“Fees”) as listed in Addendum A (i) Monthly subscription (“Fees”) as listed in Addendum A (ii) implementation & enhanced services, as requested by Client, and including, but not limited to, training, implementation support, data gathering, data input and any other service not covered by the standard System support – Two hundred dollars ($200) per hour. Further examples of enhanced services include, but are not limited to, onsite or additional training not covered in the set-up fees, custom data conversion programming, custom website design or programming, and custom report creation. The terms and timing of providing enhanced services by Artemis ABA Inc to Client shall be discussed and mutually agreed upon by the parties, as needed. All Fees are due and payable for each month during the term of this Agreement as follows: (1) the Fees, if applicable, shall be billed in monthly invoices on the first day this agreement and shall be due immediately on the same day the invoice is issued, whereby Client effectively pre-pays such fees for the month in order to have the right to access and use The System; (2) the hourly fees for enhanced services shall be invoiced monthly in arrears, with the invoice reflecting the fees incurred in the previous month. All Fees paid shall be non-refundable. All past due amounts for invoices hereunder shall bear interest at the lesser of eighteen percent (18%) per annum or the highest rate permitted by applicable law.
B. Artemis ABA Inc shall initiate the billing of Fees on either of the following dates, whichever occurs first (the “Initial Date”): (i) the date when Client begins using The System; or (ii) thirty (30) days following the date Client received System login, regardless of whether the Client had completed the System training and/or is using the System. If the Initial Date occurs on a date other than the first day of a calendar month, the Fees for the initial month shall be pro- rated to reflect the portion of such month occurring on and after the Initial Date.
C. Without limiting any other remedy to Artemis ABA Inc at law, in equity, or under this Agreement, Artemis ABA Inc reserves the right in its sole discretion to deactivate access to the System if Client is thirty (30) days past due on any invoice issued hereunder, and/or may also suspend access to the Services and technical support, until the balance on the account has been paid in full. Outstanding balances remaining unpaid after thirty (30) days following the due date of such balances shall also give rise to Artemis ABA Inc’s right to immediately terminate this Agreement at its sole discretion. Client agrees to pay or reimburse all fees and expenses reasonably incurred by Artemis ABA Inc in collecting any amounts due under this Agreement, including, but not limited to, all reasonable attorneys’ fees associated therewith.
D. All Fees shall be exclusive of any taxes. Client agrees to pay all current and future sales, use, transfer and other taxes and duties, whether state, federal, national, or international, however designated, including value added taxes and similar taxes (including any related interest and penalties), which are levied or imposed on Client because of the transactions contemplated by this Agreement (“Taxes”). Client shall reimburse and indemnify Artemis ABA Inc for any such Taxes that are paid or accrued by Artemis ABA Inc. as a result of this Agreement.
6. Protection of Proprietary and Confidential Information.
A. Client acknowledges and agrees that Artemis ABA Inc considers the System and Documentation to constitute the confidential information and proprietary information of Artemis ABA Inc and to embody trade secrets and intellectual property of Artemis ABA Inc protected under United States copyright and other laws, the laws of other jurisdictions, and international treaty provisions. Artemis ABA Inc acknowledges and agrees that Client’s data may contain confidential and proprietary information; provided, however, Artemis ABA Inc shall have the right to use Client’s data and other information to perform the Services and for further development and improvements of the System and/or Documentation. Each party: (i) shall maintain such items in strict confidence; (ii) shall use same only for the purposes permitted in this Agreement; and (iii) shall not, and shall cause its employees, agents, and contractors not to, reproduce, publish, divulge, or otherwise make the confidential information and proprietary information available in any form to a third party. Each party shall not disclose any of the confidential and proprietary information of the other party following termination of this Agreement or until such confidential and proprietary information becomes publicly available.
B. Client further acknowledges and agrees not to, and shall cause its employees, agents and contractors not to: (i) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the System or Documentation; (ii) copy or reproduce the System or Documentation (except as permitted with respect to the Documentation in this Agreement); (iii) rent, lease, lend, sublicense, distribute, remarket, transfer, or otherwise transfer rights to the System or Documentation; or (iv) remove any proprietary notice or labels on the Documentation.
C. Notwithstanding the foregoing, if either party (the “Required Party”) is required to disclose any confidential or proprietary information of the other party (the “Disclosing Party”) provided in connection with this Agreement by oral questions, interrogatories, requests for information or other documents in legal proceedings, subpoena, civil investigative demand or any other similar process, the Required Party shall provide the Disclosing Party with prompt notice of any such requirement so that the Disclosing Party has an opportunity to seek a protective order or other appropriate remedy at its sole expense or waive compliance with the provisions of this Agreement. If the Disclosing Party has not secured a protective order or other appropriate remedy, and the Required Party is nonetheless then legally compelled to disclose the relevant information to any tribunal or else stand liable for contempt or suffer other censure or penalty, the Required Party may, without liability hereunder, disclose that portion of the relevant information that is legally required to be disclosed, provided that the Required Party exercises reasonable efforts to preserve the confidentiality of such information, including, without limitation, by cooperating with the Disclosing Party (at the Disclosing Party’s sole expense) to obtain an appropriate protective order or other reliable assurance that such tribunal will accord the relevant information confidential treatment.
7. Administrative Functions.
Artemis ABA Inc shall act as the administrator (“Administrator”) who has the authority to distribute, create, update, and reset user IDs and passwords to Client’s End Users for access to the System. Upon Artemis ABA Inc’s request, the client shall notify Artemis ABA Inc as to the name, title, location, mailing and e-mail address of each End User to whom Client has provided a user ID and password. Client shall be responsible to ensure that each End User granted a user ID and password: (i) is fully aware of all of Client’s and End User’s obligations under this Agreement and acts in accordance with them; (ii) maintains the secrecy and security of the user ID and password; and (iii) does not disclose them to any other party or allow any other party to use them to access the System. Client shall be responsible for all acts and omissions of the End Users and all of its other employees, agents, representatives and contractors, and any use or access of the System through use of End User IDs and passwords, whether such access was authorized or not. The use of the user ID and password assigned to any End User shall be deemed to constitute the acts of such End User and Client, and Artemis ABA Inc shall be entitled to rely upon the data input without any obligation to identity or otherwise verify any person who gains access to the System by means of such user ID and password.
This Agreement and the permissions hereunder shall have a term as identified by the Contract Duration unless terminated sooner as set forth in this Agreement. At the end of the term, this agreement will automatically renew for a 12-month period unless terminated in writing (email).
9. Termination; Effect of Termination/Expiration.
A. Artemis ABA Inc may terminate this Agreement upon thirty (30) days prior written notice to Client if Client violates any term of this Agreement. However, if Client either voluntarily or involuntarily becomes the subject of liquidation, bankruptcy, or reorganization proceedings, becomes insolvent, enters into receivership, reorganization, or makes an assignment for the benefit of creditors, Artemis ABA Inc may immediately terminate this Agreement without Artemis ABA Inc having to take any additional action. Client shall return the Documentation and all copies thereof to Artemis ABA Inc within thirty (30) days after termination or expiration of this Agreement. Upon termination or expiration of this Agreement, all consents and other rights granted to Client hereunder shall immediately terminate. Any fees paid to Artemis ABA Inc are nonrefundable at the time of termination.
B. Notwithstanding the termination or expiration of this Agreement, the following Sections shall survive, along with all definitions required thereby: Sections 2(A), 5, 6, 9 through 12, and 14 (including, without limitation, any payment obligations that arise with respect to time periods prior to termination or expiration of this Agreement)
C. Either party may terminate this Agreement at any time for any reason or no reason upon providing at least sixty (60) days’ written notice.
10. LIMITED WARRANTY AND DISCLAIMER.
THE SYSTEM AND ASSOCIATED DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OF SATISFACTORY OR MERCHANTABLE QUALITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OF TITLE OR NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. FURTHER, ARTEMIS ABA INC SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES REGARDING THE SERVICES OR LACK OF COMPUTER VIRUSES. ARTEMIS ABA INC MAKES NO WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION OR OTHER RESULTS OBTAINED THROUGH THE USE OF THE SYSTEM. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SYSTEM AND DOCUMENTATION IS WITH CLIENT. ARTEMIS ABA INC DOES NOT WARRANT THAT THE SYSTEM WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SYSTEM WILL BE CORRECTED, AND ACCESS TO THE SYSTEM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF ARTEMIS ABA INC’S CONTROL. ARTEMIS ABA INC IS NOT LIABLE FOR ANY DAMAGES OF ANY TYPE CAUSED BY SUCH INTERFERENCE.
11. LIMITATION OF DAMAGES AND LIABILITY.
A. TO THE FULLEST EXTENT PERMITTED BY LAW, ARTEMIS ABA INC OR ANY SUPPLIER OR ANY OTHER PERSON INVOLVED IN THE CREATION, PRODUCTION, OR DISTRIBUTION OF THE SYSTEM SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR PERSONAL INFORMATION, OR LOSS OF DATA NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PENALTIES ARISING OUT OF THIS AGREEMENT, DUE TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR USE OF OR INABILITY TO USE THE SYSTEM, QUALITY OR PERFORMANCE, INFORMATION OR DOCUMENTATION EVEN IF ARTEMIS ABA INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES. THESE LIMITATIONS OF LIABILITY SHALL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ARTEMIS ABA INC OR IN THE EVENT OF PERSONAL INJURY OR DEATH. CLIENT ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR BACKING UP ITS DATA AND THAT ARTEMIS ABA INC IS NOT RESPONSIBLE FOR ANY LOSS OF OR DAMAGE TO DATA.
B. CLAIMS BY CLIENT NOT MADE WITHIN SIX (6) MONTHS AFTER THE FIRST EVENT GIVING RISE TO A CLAIM SHALL BE DEEMED WAIVED.
C. CLIENT AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF WARRANTY AND LIABILITY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.
Except as otherwise noted herein, all notices, demands or other communications required or permitted to be given by a party under this Agreement shall be in writing and shall be given by use of personal service (notice deemed effective on date delivered); electronic mail (notice deemed effective on date of transmission); facsimile or telecopier transmission if a transmission confirmation is received by the other party (notice deemed effective on date confirmation is received); or United States certified mail, return receipt requested, postage prepaid (notice deemed effective on the tenth business day following placement in mail) to the mailing address set forth below (or as changed through thirty (30) days prior written notice to the other party):