Last updated: July 1, 2026
This Facility Services Agreement (this "Agreement") is a binding legal agreement between O.R. Trax, LLC ("Provider," "we," or "us") and the individual or entity accepting this Agreement ("Customer," "you," or "your"). This Agreement governs your access to and use of the Services (as defined below).
By clicking "I Accept," "Agree," "Register," "Submit," or a similar acceptance button, creating an account, executing an Order Form that references this Agreement, or otherwise accessing or using the Services, you acknowledge that you have read, understood, and agree to be legally bound by this Agreement. If you do not agree to this Agreement, you may not access or use the Services. "Effective Date" means the date on which Customer first accepts this Agreement, executes an Order Form referencing this Agreement, creates an account, or first accesses or uses the Services, whichever occurs first.
If you are accepting this Agreement on behalf of a company, health system, integrated delivery network, hospital, ambulatory surgery center, clinic, affiliated facility, or other legal entity, you represent and warrant that you have the authority to bind such entity to this Agreement. In such case, "Customer" refers to the entity on whose behalf you are accepting this Agreement. A Customer may consist of a single facility, a multi-facility health system, an integrated delivery network, or affiliated facilities. The facilities, campuses, locations, or operating entities authorized to access and use the Services may be identified in an applicable Order Form or otherwise designated by Customer and approved by Provider. Individuals authorized by Customer to access and use the Services on Customer's behalf are referred to as "Authorized Users."
Individuals or entities who are not Customers or Authorized Users may not access, use, or authorize access to or use of the Services without Provider's prior written consent.
(a) “Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
(b) "Aggregated Statistics" means data and information related to Customer's use of the SaaS that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS.
(c) "Authorized User" means Customer employees, workforce members, contractors, administrators, credentialing personnel, schedulers, operational personnel, and other individuals authorized by Customer to access or use the Services on behalf of Customer or a Customer Facility.
(d) "Customer Data" means information, data, records, content, scheduling information, credentialing information, operational data, and other materials submitted to, transmitted through, or processed by the Services by or on behalf of Customer or Authorized Users, including any Protected Health Information governed by an applicable Business Associate Agreement.
(e) "Customer Facilities" means the hospitals, ambulatory surgery centers, clinics, campuses, facilities, and other locations identified in the applicable Order Form.
(f) "Documentation" means Provider's user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Services.
(g) “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(h) ”Order Form” means the associated order form executed by the Customer that identifies details around Customers use of Services.
(i) “Professional Services” means training, consulting or other professional services ordered by Customer for provision by Provider, as described in an Order Form. The term “Professional Services” does not include the SaaS or any support services. Any implementation timelines, onboarding estimates, integration timelines, or deployment expectations discussed by Provider are good-faith estimates only and may vary depending on Customer infrastructure, EHR configuration, interoperability requirements, third-party system availability, testing requirements, and Customer responsiveness.
(j) "Provider IP" means (i) the Services, the Documentation, (ii) anything developed, provided or made available by or on behalf of Provider under this Agreement; and (iii) any Modifications to any or all of the foregoing. Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(k) “SaaS” means the service offering as described in an Order Form.
(l) “Services” means the SaaS, the Professional Services and any support services described in Section 4. For clarity, Professional Services, if any, will be described in an applicable Order Form.
(m) "Third-Party Products" means any third-party products provided with or incorporated into the SaaS, including any Open Source Software.
(a) SaaS and Document Rights. Subject to Customer's compliance with the terms and conditions of this Agreement, Provider grants to Customer, the limited, non-exclusive, non-sublicensable, non-assignable (except in compliance with Section 12(i)), non-transferable (except in compliance with Section 12(i)) right, during the applicable Order Form Term (as defined in Section 11(a)), solely for Customer’s internal business purposes, to: (i) access and use the SaaS ordered by Customer pursuant to an Order Form, and (ii) use the Documentation applicable to the Services ordered by Customer pursuant to an Order Form, in each case on the terms and conditions set out in this Agreement.
(b) Restrictions.
(i) Customer shall not use the Services or Documentation for any purposes beyond the scope of the license and rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not itself, and shall not permit others to: (1) copy, Modify (except user configurable functionality), or create derivative works of any of the Services or the Documentation; (2) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or the Documentation; (3) use the Services to permit timesharing, service bureau use or commercially exploit the Services; (4) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any of the Services; (5) remove or obscure any proprietary notices or labels on the Services or the Documentation, including brand, copyright, trademark and patent or patent pending notices; (6) access or use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (7) use or access the Services in a manner that threatens the security or functionality of the Services, or for any purpose; (8) access or use the Services for the purpose of building a similar or competitive product or service; or (9) perform any vulnerability, penetration or similar testing of the Services.
(ii) Customer Data Restrictions. Customer shall not itself, and shall not permit others to, use the Services to create, collect, transmit, store, use or process any Customer Data: (i) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data: (ii) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or (iii) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party.
(iii) Authorized User Restrictions. The scope of Customer's authorized use, including any facility limitations, implementation scope, integrations, or other usage parameters, shall be described in the applicable Order Form.
(c) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement.
(d) Suspension; Modification. Notwithstanding anything to the contrary in this Agreement, Provider may, at its discretion: (i) suspend Customer's or any Authorized User's access to or use of the SaaS, or Provider’s provision of support services: (A) for scheduled maintenance in accordance with this Agreement; (B) to address any actual threatened security concerns or harm to Provider, Customer Data, the Services or Provider’s other customers, (C) if Customer or any Authorized User violates any provision of this Agreement (any such suspension described in this Section 2(d)(i), a “Service Suspension”); and (ii) Modify the Services. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. Customer is required to accept all patches, bug fixes and updates made by or on behalf of Provider to the Services.
(e) Interoperability. Customer acknowledges and agrees that the Services may interoperate with Customer’s electronic health record systems, scheduling systems, identity management systems, and third-party operational platforms for purposes of credentialing, scheduling synchronization, vendor communication, and compliance management. Customer authorizes Provider to receive, process, transmit, and synchronize scheduling, credentialing, operational, and related interoperability data exchanged between Customer systems and the Services through HL7 messaging, APIs, interfaces, and related interoperability methods supported by the Services. Provider does not warrant the continued availability, functionality, compatibility, or performance of any third-party system, interface, API, integration, EHR platform, interoperability standard, or third-party service, and shall not be liable for any service interruption, delay, or degradation resulting from such third-party systems.
(f) Use of Subcontractors. Customer agrees that Provider may, from time to time, in its discretion engage third party subcontractors, including subprocessors, to perform Services. Provider will be responsible for such third parties’ performance of the Services.
(a) General. Customer is responsible and liable for (i) all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement; and (ii) identifying and authenticating all Authorized Users. Without limiting the generality of the foregoing, Customer is responsible any Authorized Users’ breach of this Agreement, as if by Customer.
(b) Third-Party Products. Provider may distribute certain Third-Party Products with the Services. For purposes of this Agreement, such Third-Party Products are subject to their own license terms and the applicable flow through provisions referred to in the Order Form. If Customer does not agree to abide by the applicable terms for such Third-Party Product, then Customer should not install or use such Third-Party Products.
(c) Passwords and Access Credentials. Customer shall keep all passwords and access credentials associated with the Services confidential and secure. Customer will not sell or transfer them to any other person or entity. No Authorized User may share them with any other person. Customer will promptly notify Provider about any unauthorized access to the Services or Customer’s passwords or access credentials. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the SaaS. Customer may designate administrative users responsible for managing Authorized User access.
(d) Customer retains sole responsibility for: (i) determining whether vendors may access Customer facilities; (ii) validating operational, clinical, and patient-care decisions; (iii) supervising vendors and facility access; (iv) maintaining compliance with applicable healthcare, accreditation, and regulatory requirements; and (v) reviewing all scheduling, credentialing, and operational information transmitted through the Services.
Provider complies with its privacy policy, available at https://ortrax.com/privacy ("Privacy Policy"), as updated from time-to-time, in providing the Services. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted Provider’s Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of Provider’s Privacy Policy. To the extent Provider creates, receives, maintains, transmits, or otherwise processes Protected Health Information on behalf of Customer, the parties shall enter into and comply with a separate Business Associate Agreement, which shall control in the event of conflict with this Agreement regarding PHI.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels as follows. The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond the Provider’s control will also be excluded from any such calculation. Downtime shall begin to accrue as soon as Customer (with notice to Provider) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify the Provider in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. The Provider will only apply a credit to the month in which the incident occurred. Provider’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of the Provider to provide adequate service levels under this Agreement.
(b) Support. The access rights granted hereunder entitles Customer to the support services described herewith. Provider will provide reasonable remote technical support for the Services during Provider’s standard business hours using commercially reasonable efforts. Support may include assistance relating to platform access, credentialing workflows, vendor notification functionality, integrations, and issue troubleshooting. Customer may submit support requests through Provider’s designated support channels. Provider will use commercially reasonable efforts to respond to support requests within a reasonable timeframe based on the severity and operational impact of the issue. Provider may perform scheduled maintenance, upgrades, updates, and modifications to the Services from time to time. Provider will use commercially reasonable efforts to provide advance notice of scheduled maintenance expected to materially impact availability of the Services.
Provider may update its support practices from time to time in the ordinary course of business, provided such changes do not materially degrade the overall level of support provided to Customer during the applicable Order Form Term.
Unless otherwise expressly set out in an Order Form, statement of work, or other written agreement executed by the parties, Customer shall not be charged any fees for access to or use of the Services. If Customer elects to purchase optional Professional Services, implementation services, integration services, custom development, premium support, reporting services, or other fee-based offerings, the applicable fees and payment terms shall be set forth in an Order Form, statement of work, or other written agreement between the parties. Customer shall pay any undisputed fees set forth in an applicable Order Form, statement of work, or other written agreement within thirty (30) days of the invoice date, unless otherwise specified therein. Any undisputed amount not paid when due may accrue interest at the rate of one and one-half percent (1.5%) per month, calculated monthly, or the maximum rate permitted by applicable law, whichever is less.
Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5(b), the appropriate amount will be invoiced to and paid by Customer, unless Customer provides the Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
From time to time during the Term, either party may disclose or make available to the other party information marked or otherwise identified in writing by a party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the recipient should recognize as being confidential (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) generally publicly available; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; (ii) to establish a party's rights under this Agreement, including to make required court filings; or (iii) to to its Affiliates, and its and their respective officers, directors, employees, shareholders, prospective investors, agents and consultants (collectively, the “Representatives”), provided that the receiving party shall take all necessary precautions or measures to prevent improper access to the Confidential Information or use or disclosure of the Confidential Information by its Representatives and shall be responsible for any breach of the obligations of this Agreement by any of its Representatives. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and, on request, certify in writing to the disclosing party that such Confidential Information has been destroyed, provided, however, that the receiving party and its Representatives may retain copies of the Confidential Information for legal or archival purposes, or if they are stored on the receiving party’s information technology backup and disaster recovery systems until their ordinary course deletion. Any such retention shall continue to be governed by this Agreement. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the termination or expiry of this Agreement, whichever earlier; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(a) Provider IP; Third-Party Products. As between the parties, (i) Provider owns all rights, title, and interests in and to the Provider IP; and (ii) the applicable third-party providers own all rights, title, and interests in and to the Third-Party Products.
(b) Customer Data. As between the parties, Customer owns all right, title, and interest in and to the Customer Data. Customer hereby grants to Provider and its Affiliates a non-exclusive, royalty-free, worldwide license to access, store, transmit, use and otherwise process the Customer Data to provide the Services to Customer.
(c) Warranty. Customer represents and warrants to Provider that Customer has all the rights, power and authority necessary to grant the above Customer Data license and that use of the Customer Data in the manner contemplated will not breach the rights of any third party. Customer is solely responsible for obtaining, and will obtain, all rights, consents, and permissions from, and making all requisite disclosures to, Authorized Users, in each case as required under applicable laws, for: (a) its use of their Authorized Users in connection with the Services; and (b) for Provider to perform the Services and the obligations under this Agreement, including to collect, procure, gather, store, process and access Customer Data. Customer agrees that it will (i) not request any sensitive personal information, including credit card or banking information, or personal health information, from its Authorized Users through the Services; and (ii) inform Provider of any data protection laws applicable to Authorized Users. Customer acknowledges that automated scheduling notifications and interoperability workflows depend on the availability, accuracy, and timeliness of information provided through Customer's EHR, EMR, scheduling systems, and other third-party systems. Provider shall not be responsible for any failure to generate or deliver notifications resulting from Customer's failure to timely update such systems. Provider does not guarantee uninterrupted, error-free, or real-time delivery of notifications. Customer remains responsible for reviewing operational data, scheduling workflows, and credentialing information transmitted through the Services for accuracy and completeness. Customer acknowledges that portions of the Services may be accessed through vendor-owned or third-party mobile devices and networks not controlled by Provider.
(d) Content Responsibilities. Customer is responsible for any and all Customer Data provided hereunder and for compliance with this Agreement, including obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Data to be made available to Provider for Provider to transmit, host and store. For greater certainty, Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. For greater certainty, Customer shall make any disclosures in its privacy notices, or as otherwise required under applicable laws, regarding Customer’s use of the Services to collect and process Customer Data.
(e) Feedback. Customer or any Authorized User or other personnel may from time to time provide suggestions, comments or other feedback ("Feedback"), including, with regard to Services. All Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation for Provider. Provider is free to use and exploit the Feedback without obligation.
Provider shall maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the confidentiality, integrity, and availability of Customer Data, including: (i) encryption of data in transit; (ii) access controls; (iii) audit logging; (iv) credential-based access restrictions; (v) incident response procedures; and (vi) commercially reasonable vulnerability management measures.
(a) To the extent applicable, Provider warrants that the SaaS will perform materially as described in the Documentation for the applicable Order Form Term. The warranties set forth in this do not apply and become null and void if Customer or any Authorized User: (1) breaches any provision of this Agreement; (2) does not promptly notify Provider in writing of any non-conformance regarding the warranty; (3) installs or uses the Services on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Provider in writing; or (4) misuses the SaaS, including any use of the software other than as specified in the Documentation or expressly authorized by Provider in writing. In the event of a breach of a warranty in Section 8(a) Provider shall, at its sole option, either: (i) repair or replace the applicable SaaS, provided that Customer provides Provider with all information Provider reasonably requests to resolve the reported failure, including sufficient information to enable the Provider to recreate such failure; or (ii) terminate this Agreement or the applicable Order Form(s) and refund the pro rata unused portion of any Fees paid for such SaaS, subject to Customer's ceasing all use of the terminating SaaS. The remedies set forth in this Section 8(a) are Customer's sole remedies and Provider's sole liability under the limited warranties set forth in this Section 8(a). THE FOREGOING WARRANTIES DO NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTY, THE PROVIDER IP IS PROVIDED "AS IS" AND “AS AVAILABLE AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(a) Provider Indemnification.
(i) Provider shall indemnify, defend, and hold harmless Customer and its Affiliates, officers, directors, employees and representatives from and against any and all losses, damages, liabilities, and costs (including reasonable lawyers' fees) ("Losses") incurred by Customer and its Affiliates, officers, directors, employees and representatives resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the SaaS or Documentation, or any use thereof, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Provider may, to (A) modify or replace the SaaS or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that none of these alternatives is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, provided it refunds the pro rata unused portion of any Fees paid for such SaaS, subject to Customer's ceasing all use of the terminating SaaS.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination or conjunction with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data, (D) Third-Party Products; or (E) Customer’s breach of this Agreement.
(iv) THIS 9(A) SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR DOCUMENTATION INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider and its Affiliates, officers, directors, employees and representatives from and against any Losses resulting from any Third-Party Claim based on Customer's, or any Authorized User's: (i) Customer Data; (ii) Customer’s breach of any of this Agreement; or (iii) use of the Services by Customer or any Permitted User in combination with any third party software, application or service, provided that Customer may not settle any Third-Party Claim against Provider unless such settlement completely and forever releases Provider and its Affiliates, officers, directors, employees and representatives from all liability with respect to such Third-Party Claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
EXCEPT AS OTHERWISE PROHIBTIED BY APPLICABLE LAWS, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) LOST SAVINGS, PROFIT, REVENUES DATA, USE, OR GOODWILL; (c) BUSINESS INTERRUPTION; (d) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (e) BREACH OF DATA OR SECURITY; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THE APPLICABLE ORDER FORM IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER SHALL BE DEEMED TO BE DIRECT DAMAGES. THIS SECTION 10 APPLIES TO ALL LIABILITIES AND DAMAGES REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE.
(a) Term. This Agreement shall continue in full force and effect until terminated in accordance with the terms of this Agreement (“Term”). Either party may terminate this Agreement upon written notice to the other party when all Order Forms have expired or been terminated. The initial term of each Order Form will be specified in the Order Form or, if no initial term is specified in an Order Form, the initial term of the Order Form begins on the Order Form effective date and will continue in effect until one year from such date (the "Initial Order Form Term"). Each Order Form will automatically renew for additional successive one (1) year terms unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a "Renewal Order Form Term" and together with the Initial Order Form Term, the "Order Form Term").
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure (including any Customer payment obligation hereunder), remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. For the provision of SaaS, upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. Provider will delete, destroy, or return copies of Customer Data within a reasonable time after Termination. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. The obligations and rights of the parties that may have arisen or accrued under the Agreement will survive the termination or expiration of the Agreement without prejudice. All provisions of this Agreement which by their nature should survive in order to give effect to this Agreement, shall survive termination or expiration.
(a) Entire Agreement. This Agreement, the Order Form(s), together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, the following order of precedence governs: (a) the Order Form (if there are more than one active then whichever is most recently signed followed be earlier Order Forms) (b) this Agreement, excluding exhibits, schedules, attachments, and appendices, (c) the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date, and (d) any other documents incorporated herein by reference.
(b) Publicity. Provider may publicly identify the Customer as a customer of Provider, including using Customer’s name and logo in marketing materials, provided consent shall not be required for Provider to identify Customer during communications with Provider’s partners, customers, prospects, or investors, which for clarity may include investor and/or earnings calls.
(c) Notices. Notices sent to either party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be in writing and sent: (i) if to Provider, to the following address:
O.R. TRAX, LLC
303 Perimeter Center North
Suite 450
Atlanta, GA 30346
Attention: Will Cottrell - will.cottrell@ortrax.com
Copy to: Abram Liverio - aliverio@ortrax.com(d) and (ii) if to Customer, to the current postal or email address that Provider has on file with respect to Customer. Provider may change its contact information by posting the new contact information on the Provider’s website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Provider current at all times during the Term.
(e) Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond Provider’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Provider’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites.
(f) Amendment and Modification. Provider may amend this Agreement from time to time by posting an updated version on its website or providing notice through the Services. Unless otherwise stated, amendments become effective upon posting or notice. Customer's continued access to or use of the Services following the effective date constitutes acceptance of the amended Agreement.
(g) Severability; Waiver. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(h) Governing Law; Venue, Arbitration. This Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions ACT (UCITA). Except as expressly provided in this Agreement, any dispute, claim or controversy arising out of or relating to this Agreement or the relationship between the Parties shall be resolved exclusively through binding arbitration to be administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures (“Rules”). There shall be one Arbitrator agreed to by the Parties within 20 days of receipt by the respondent of the request for arbitration, or in the absence of such agreement, appointed by JAMS pursuant to the Rules. Notwithstanding the above, the Parties agree that the following claims or proceedings shall not be subject to arbitration: (i) any action to confirm, vacate, modify or enforce an arbitration award may be brought before any state or federal court of competent jurisdiction and (ii) Provider may bring any claim seeking injunctive relief, including but not limited to requests for temporary or permanent injunctive relief in any state or federal court of competent jurisdiction, and nothing in this Agreement shall prevent the Provider from seeking such relief in court. The arbitrator shall have the authority to hear and resolve all disputes as described herein, including, but not limited to claims of arbitrability and the scope of this Agreement. The Parties agree that any arbitration under this Agreement shall be conducted solely on an individual basis, and not as a class, collective or representative action. The Parties hereby irrevocably waive the right to act as a class representative or to participate in any class, collective, or representative action in any manner whatsoever.
(i) Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, by operation of law or otherwise, without the prior written consent of Provider. Any assignment, transfer, or delegation in violation of this Section is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(j) Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under this Agreement, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(k) Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
(l) Independent Contractors. Provider’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
BY CLICKING "I ACCEPT," "AGREE," "REGISTER," "SUBMIT," OR A SIMILAR ACCEPTANCE BUTTON, EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT.
