1. ENGAGEMENT AND employer approvals
Subject to the terms and conditions of this Agreement, Employer hereby engages Paytient, and Paytient hereby accepts engagement by Employer, to provide and/or to arrange for the provision to Employer of the Services. When this Agreement calls for the approval, consent, direction or other action by Employer, the action of any director or officer of Employer will constitute the action of Employer. In each instance, Paytient may assume that all consents and approvals required by Employer’s articles of incorporation and charter or bylaws have been obtained.
2. SERVICES AND PAYTIENT RESPONSIBILITIES
2.1 Platform. Paytient shall provide access to the Platform, and hereby grants Employer a non-exclusive, non-transferable right to access and use the Platform during the Term, solely in connection with use of the Platform by Employees and Employer’s execution of its responsibilities as specified in this Agreement. Paytient shall use commercially reasonable efforts to correct all errors, omissions, inconsistencies, and other defects of the Platform at its own cost and expense so long as information provided by Employer and covered Employees is accurate.
2.2 Enrollment. Paytient shall assist Employer in the enrollment of Employees by providing Employer with standard enrollment materials. Use of the Platform by any Employee will be subject to the Employee’s agreement to the Terms and Conditions of the Platform and Paytient Credit Card Agreement, currently available in the Paytient App. Paytient may terminate any Employee’s use in accordance with the foregoing agreements.
2.3 Payment Processing. Paytient will process the payment of Funds through the Platform for Eligible Expenses after the Effective Date in accordance with its policies and protocols and applicable law.
2.4 Legal Action. Paytient shall notify Employer if Paytient obtains knowledge of any legal action that may impact Employer involving the Program or Paytient due to the operation of the Program. Paytient shall provide all reasonable records requested by Employer and cooperate with Employer in the defense of any such legal action.
3. LIMITATIONS ON PAYTIENT RESPONSIBILITIES
3.1 Not a Fiduciary or Benefit Guarantor. Paytient does not assume any obligations other than those responsibilities expressly stated in this Agreement. Paytient is not the administrator or fiduciary of any employee benefit plan of Employer. Paytient shall have no discretionary authority or control with respect to any employee benefit plan. Paytient shall not be liable, nor advance its own funds, except to the extent contemplated in Section 2.4 of this Agreement.
3.2 Expenses & Tax. Paytient is not responsible for payment of any expense of Employer, including, but not limited to, the fees of any attorneys, accountants and other individual or Employer entity not employed by Paytient. Paytient does not warrant or guarantee the tax consequences of this Program to Employees or Employer. Employer is advised to consult its legal counsel or tax advisors concerning the tax effects associated with this Program.
4. EMPLOYER RESPONSIBILITIES
4.1 Program Eligibility. Employer shall have the responsibility and discretionary authority to determine which employees (and/or dependents) are eligible for the Program.
4.2 Payment of Fees and Expenses. Employer shall be responsible for payment of the Services Fees as set forth on the Cover Sheet. For clarity, Employees shall be liable to Paytient for the repayment of all Eligible Expenses advanced on behalf of Employees by Paytient. Employer’s failure to pay any amounts owed to Paytient under this Agreement when due will be a material breach of this Agreement by Employer. Paytient may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. Employer agrees to bear full responsibility for any reasonable charges incurred in the collection of unpaid invoices owed to Paytient. Employer shall be responsible for the payment of all applicable federal, state, local, municipal, sales and other taxes relating to the activities contemplated hereunder, except for taxes based on the net income of Paytient.
4.3 Duty to Cooperate. Employer agrees to cooperate and provide any assistance necessary to enable Paytient to provide the Services under this Agreement.
4.4 Service Providers. Employer agrees to timely process or authorize their payroll service provider, if any, to process payroll deductions and provide the funds for the payroll deductions immediately to Paytient. Employer agrees to authorize access to third party provider data/systems as reasonably required by Paytient to provide the Services.
4.5 Books and Records. Employer will retain and, subject to applicable law, provide Paytient with reasonable and prompt access to its books and records (including work papers in the possession of its accountants) with respect to all transactions related to the Program and such other financial records and information, in each case, as reasonably necessary for Paytient to perform its obligations under this Agreement.
4.6 Use Restrictions. Employer shall not use the Services for any purposes beyond the scope granted in this Agreement. Employer shall not at any time, directly or indirectly, and shall not permit any Employees to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (v) use the Services 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. Paytient may suspend Employer and any Employee(s) access to the Platform or the Services if Paytient reasonably determines (x) there is a threat, attack or security risk to the Platform or Services, or (y) Employer or any Employee is using the Services or the Platform for fraudulent or illegal activities or the Services violate applicable law.
Each Party (the “Receiving Party”) acknowledges and agrees that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information of Paytient includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Employer includes non-public data provided by Employer to Paytient to enable the provision of Services (“Employer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
6. OWNERSHIP and iNTELLECTUAL PROPERTY RIGHTS
6.1 Platform Data. Paytient shall own all right, title and interest in the Platform Data. “Platform Data” means all data generated by the Employer’s and Employees’ use of the Platform, including information tracking Employee use of the Platform, other than Employer Data. Subject to applicable law, Paytient shall provide Employer with access to aggregated, non-identifiable Platform Data as it pertains to Employee use of the Platform selected by Paytient.
6.2 Employer Intellectual Property. Employer grants to Paytient a non-exclusive, worldwide, royalty free, paid-up, license and right during the Term to use, modify, reproduce, sublicense, display, distribute, transmit, and perform Employer’s name, logos, trademarks, service marks and any photos, videos, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Employer (collectively, “Employer IP”) in connection with the promotion of the Program for Employer in all media or formats now known or hereinafter developed. Any use of the Employer IP as contemplated in this Agreement is within Paytient’s sole discretion.
6.3 Paytient Intellectual Property. Employer acknowledges and agrees that, as between the parties, Paytient owns all interest in and to the Services, Platform, Platform Data, Paytient trade names, logos, trademarks, service marks, domain names, and any other content created by Paytient or at Paytient’s direction, or assigned to Paytient, and any materials, software, technology or tools used or provided by Paytient to provide the Services and the Program (collectively “Paytient IP”). Employer shall not take any action to challenge or object to the validity of Paytient’s rights in the Paytient IP or Paytient’s ownership or registration thereof. All rights to the Paytient IP not expressly granted in this Agreement are reserved by Paytient.
6.4 Feedback. If Employer provides Paytient with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Paytient product or service or otherwise in connection with this Agreement, any Paytient IP, or Employer’s participation in the Program (collectively, “Feedback”), Employer irrevocably grants Paytient and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose; and (iii) sublicense the foregoing rights to any other person or entity.
7.1 Termination. This Agreement shall be terminated at the earliest date of: (i) any date mutually agreed upon by the Parties; (ii) in the event of a breach of this Agreement, thirty (30) days after the non-breaching party gives the other party notice of the breach unless the breach is cured within such 30-day period; and (iii) as of the last day of the then-current term, if either Party gives at least sixty (60) days’ prior written notice to the other of its intent to terminate. In addition, Paytient shall have the right to terminate this Agreement, with or without cause, at any time upon sixty (60) days’ prior written notice to Employer.
7.2 Effect of Termination. Upon termination of the Agreement for whatever reason, all of the services provided under the Agreement shall be terminated. Termination of this Agreement shall not terminate the rights or obligations of either Party with respect to any period prior to the termination, or the obligation of Employer to pay the Services Fees and indemnify Paytient under the provisions of this Agreement.
8.1 By Paytient. Paytient agrees to indemnity, defend and hold harmless Employer and its directors, officers, employees, members and agents from and against all third party claims, liabilities, lawsuits, settlements, judgements, damages, costs, penalties, and expenses, including reasonable attorneys’ fees and costs, which are or may be incurred by Employer arising out of or related to any claim that the Service and the operation thereof by Paytient violates any intellectual property rights of any third party.
8.2 By Employer. Employer agrees to indemnify, defend and hold harmless Paytient and its directors, officers, employees, members and agents from and against all claims, liabilities, lawsuits, settlements, judgments, damages, costs, penalties, and expenses, including attorneys’ fees and costs, which are or may be incurred by Paytient arising out of or in connection with the performance of its duties under this Agreement, except to the extent the liability was caused by the misconduct of Paytient in the performance of such duties. Paytient may retain, at its own expense, an attorney of its choice to represent it in any action described above without impairing in any way the indemnification contained in this section.
9. LIMITATIONS OF LIABILITY and disclaimer
9.1 Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF THE SERVICES, THE PLATFORM OR ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PAYTIENT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PAYTIENT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL SERVICES FEES PAID TO PROVIDER UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND PAYTIENT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PAYTIENT MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET EMPLOYER’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.
10.1 In performing their respective duties and obligations under this Agreement, the Parties are independent contractors and will not be deemed to be joint venturers, partners or employees of each other. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Employer except with Paytient’s prior written consent. Paytient may transfer and assign any of its rights and obligations under this Agreement. Employer acknowledges and agrees that Paytient may assign, subcontract or otherwise delegate any of its functions or duties to be performed hereunder to another qualified person or entity, provided that such assignment, subcontract or delegation will not relieve Paytient of its obligations under this Agreement. At Employer’s request, Paytient will provide notice of any such assignment, subcontract or other delegation. This Agreement and any Exhibits hereto contains the entire agreement between the Parties and may be amended only by writing signed by both Parties. Failure to enforce any provision of this Agreement does not alter or waive the provision or affect the future enforceability of the provision. This Agreement shall be construed and governed in accordance with the laws of the State of Missouri. All waivers and notifications must be in a writing signed by both Parties, except as otherwise provided herein. If Paytient is unable to perform its obligations under this Agreement by reason of war, fire, insurrection, strike, riot, earthquake, hurricane, natural disaster or act of God (an “Interruption”), this Agreement or such portions hereof that Paytient is unable to perform shall be suspended until such time as the Interruption has been resolved. If the suspension continues for more than sixty (60) days, Employer may terminate this Agreement upon thirty (30) days’ prior written notice.