Last Updated: June 10, 2019
Customer and Noyo agree as follows:
1. Implementation; License Grant; Reservation of Rights; Subscription Term.
1.1 Implementation. Subject to the terms of this Agreement, Noyo agrees to provide Customer (a) access to Noyo’s APIs and related Internet-based infrastructure and materials (the “Platform”) and (b) reasonable levels of assistance in connection with Customer’s development of an interface to the Platform to enable the exchange of data related to enrollment and eligibility transactions (“Transaction Data”) between Customer’s platform and the Platform (the “Implementation”).
1.2 License Grant. Subject to the terms of this Agreement, Noyo grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable license during the Subscription Term (defined below) to use the Platform to process Transaction Data in accordance with the Service Level selected by Customer for the particular Selected State, solely for Customer’s internal business purposes and, If applicable, for third parties for which Customer is using the Platform to process Transaction Data of such third parties (“Subscribers”). Customer may add Selected States only with Noyo’s express agreement. Customer may remove a particular Selected State upon notice to Noyo. However, any removal of a Selected State is only effective on the first day of the calendar month occurring at least 15 days after Customer delivers to Noyo notice of such removal.
1.3 Subscribers. Customer’s agreement with each Subscriber must contain terms that are consistent with the terms of this Agreement, including obtaining from each Subscriber such licenses, grants and commitments as are necessary to allow Customer to grant to Noyo the rights specified herein. Customer is responsible for the acts and omissions of its Subscribers, including any breach of this Agreement.
1.4 Reservation of Rights. Customer’s right to use the Platform will be limited to the rights expressly granted in this Section 1. Noyo reserves all other right, title, and interest therein, including all intellectual property rights. Customer acknowledges that nothing in this Agreement transfers to Customer ownership of any of Noyo’s intellectual property rights.
1.5 Subscription Term. Subject to the other terms of this Agreement, Customer’s right to use the Platform commences on the Effective Date and continues for one year (the “Subscription Term”). On the expiration of the initial Subscription Term and each extension thereof, the Subscription Term will automatically extend for an additional 1 year term, unless one party provides the other with written notice of its intent not to renew at least 30 days prior to the extension date. Any such extension will be at the prices and terms of Exhibit A, as they may be adjusted by notice from Noyo to Customer at least 45 days prior to the end of the then current Subscription Term.
2. Use of Platform.
2.1 General Conduct. Customer is responsible for all activities conducted through or as a result of its access to the Platform. Customer shall use the Platform in compliance with applicable law and shall not, and shall not permit any third party to: (a) except as provided herein, copy, rent, sell, lease, sublicense, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Platform, or any part thereof, or use it for the benefit of any third party, or make the Platform available to anyone other than its personnel; (b) send or store infringing or unlawful material; (c) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (d) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Platform or the data contained therein; (e) manipulate (or attempt to manipulate) the number of Covered Lives (defined below) in a manner designed to inaccurately minimize the amount of the Service Fee; (f) directly or indirectly modify, copy or create derivative works based on the Platform, or any portion thereof; (g) access the Platform for the purpose of building a competitive product or service or copying its features or user interface; (h) directly or indirectly delete, alter, add to or fail to reproduce in any portion of the Platform, the name of Noyo and any copyright or other notices appearing in or on the Platform or which may be required by Noyo at any time; (i) decompile, disassemble, reverse-engineer, or otherwise attempt to derive the source code, algorithms, or architecture of the Platform, except to the extent expressly permitted by applicable law notwithstanding this restriction; or (j) use the Platform other than as contemplated by this Agreement or the applicable documentation.
2.2 Security. Noyo uses commercially reasonable practices to maintain the integrity of the data Customer provides as part of the Implementation or through its use of the Platform (“Customer Data”).
2.4 Data Rights. Notwithstanding the other terms of this Agreement, Noyo may use and otherwise exploit the Customer Data to (a) perform its obligations and exercise its rights hereunder; (b) create data derived or inferred from the Customer Data and other Transaction Data (“Derived Data”); and (c) collect and use information related to Customer’s use of the Platform (“Usage Data”). Noyo may use Usage Data to support, test, develop, improve and enhance its products and services and the products and services of its affiliates. Noyo also may use and disclose Derived Data that has been de-identified, anonymized, and/or aggregated and Usage Data, for any legitimate business purposes.
2.5 Feedback. If Customer notifies Noyo of any bugs or errors that Customer identifies in the Platform or otherwise provides suggestions, comments, and other feedback (individually and collectively, “Feedback”), then Customer grants Noyo a perpetual, irrevocable, royalty-free, sublicensable, and transferable license to use and exploit the Feedback.
2.6 Support. Noyo will provide Customer, at no additional charge, with reasonable levels of support to facilitate its use of the Platform. Such support will be provided through a variety of systems, which may include online documentation, forums, training, FAQs and email.
3.1 Fees. Customer agrees to pay a subscription fee for the right to use and access the Platform as provided herein (the “Service Fee”) and such other amounts, if any, all as set forth on the cover page and in Exhibit A. Such amounts shall be payable on the terms of this Agreement. The Service Fee shall accrue commencing on the Effective Date and continuing through the Subscription Term. The Service Fee may be invoiced monthly, in arrears. The Service Fee for a partial month shall be pro-rated.
3.2 Invoices; Disputes. If Customer has agreed to pay by credit card, ACH or direct withdrawal, then Noyo or its payment processor is authorized to so charge, debit or deduct the applicable card or account on or after the first day the related payment is due or when otherwise agreed. Subject to the foregoing, all amounts due under this Agreement will be paid in United States dollars within 30 days of the invoice date. Customer must notify Noyo within 30 days following receipt of any invoice or notice of Service Fee if it disagrees with any charge in such invoice or notice and the basis for such disagreement. To the extent Customer fails to provide such notice in such time period, then such invoice will be deemed conclusive and Customer will be deemed to have waived any right to thereafter dispute the charges in such invoice. Past due invoices are subject to interest of 1.0% per month or the maximum permitted by law, whichever is less. Except as expressly provided in this Agreement, all payments made by Customer to Noyo hereunder are non-refundable.
3.3 Records; Inspections. Customer agrees to keep accurate books of account and records relating to use of the Platform. Noyo will have the right, no more than once each year and upon 14 days’ prior notice to Customer, at usual business hours, to cause a certified public accountant (or the equivalent) to examine (and make copies of) all such books and records. Such audits will be at Noyo’s expense, except that if an audit reveals that Noyo is entitled to additional payments equal to 5% or more of the amounts previously paid for the period so audited, then Customer, in addition to immediately forwarding the amount owed (plus interest thereon at the overdue rate specified in Section 3.2 from the date due until paid), will pay the costs of such audit. All such books and records will be kept available for at least 3 years after the period to which such record relates.
3.4 Taxes. Customer will pay, or reimburse Noyo for, all taxes, duties or charges of any kind (including withholding, value added and sales taxes) imposed by any governmental entity on purchases under this Agreement, excluding only Noyo’ net income taxes. If Noyo is obligated to pay or collect any such taxes for which Customer is responsible under this Section, Noyo may include such taxes in the related invoice which Customer must pay, unless Customer provides Noyo with a valid and effective exemption certificate.
4.1 Warranties. Noyo warrants that during the Subscription Term (a) the Platform will perform substantially in accordance with the applicable documentation; and (b) Noyo will not materially decrease the overall capabilities or security of the Platform. If Customer notifies Noyo that the Platform breaches the foregoing warranties and Noyo confirms such breach, then Noyo’s sole liability shall be to either (i) modify the Platform to conform to such warranties or, at Noyo’s election; or (ii) terminate this Agreement and Customer’s right to use the Platform.
4.2 No Other Warranties. THE ABOVE WARRANTIES AND LIMITED REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES REGARDING THE PLATFORM, IMPLEMENTATION ASSISTANCE, SUPPORT OR ANY OTHER NOYO SERVICES. NOYO MAKES NO OTHER WARRANTIES REGARDING THE PLATFORM, IMPLEMENTATION ASSISTANCE, SUPPORT OR OTHER PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, AND NOYO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF SATISFACTORY QUALITY, NONINFRINGEMENT, ACCURACY OF INFORMATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NOYO HAS NO LIABILITY FOR THE QUALITY OR ACCURACY OF ANY CUSTOMER DATA PROVIDED BY CUSTOMER OR ANY TRANSACTION DATA PROVIDED BY ANY CARRIER OR OTHER PARTY PROVIDING DATA TO CUSTOMER THROUGH THE PLATFORM. THESE LIMITATIONS ARE AN ESSENTIAL PART OF THIS AGREEMENT.
5. Term and Termination.
5.1 Term; Termination; Suspension. This Agreement commences on the Effective Date and, unless sooner terminated, terminates at the end of the Subscription Term. If either party materially breaches this Agreement and fails to cure such breach within 30 days of notice, then the other party, in its sole discretion, may terminate this Agreement. In addition, if Customer materially breaches this Agreement, Noyo may immediately suspend Customer's use of the Platform until such breach is cured.
5.2 Effect of Termination. Upon the termination or expiration of this Agreement for any reason, (a) the Subscription Term and Customer's right to access the Platform and all licenses granted hereunder immediately terminate; and (b) Noyo and its licensors shall have no obligation to maintain any Customer Data stored in a terminated account or to forward any Transaction Data to Customer or any third party. If Noyo terminates this Agreement due to Customer’s breach, then, in addition to Noyo’s other remedies, Customer shall pay all amounts under this Agreement which would have been payable through the end of the Subscription Term, assuming the number of Covered Lives in each state is not reduced. The expiration or termination of this Agreement will not (i) affect Customer's obligation to pay all amounts due to Noyo accrued prior to termination (or, where applicable, after termination), nor (ii) entitle Customer to reimbursement or refund of any amounts already paid to Noyo. In addition, Sections 1.4, 2.4, 2.5, 3, 5, 6, 7, 8 and 9 will survive the expiration or termination of this Agreement.
6.1 Confidential Information Defined. “Confidential Information” means any information, technical data, or know-how, which from the circumstances surrounding disclosure, should be understood to be confidential information of the discloser or its suppliers or customers. In any event, Confidential Information of Noyo includes (a) the Platform and any and all other information relating thereto or contained therein, including information relating to the performance, capabilities and content of such service; (b) Derived Data or Usage Data; and (c) any and all information relating to the future or proposed products, services or business operations of Noyo or its suppliers or licensors. Confidential Information of Customer includes Customer Data, but does not include Derived Data or Usage Data. Confidential Information also does not include information, technical data, or know-how which (i) was in the public domain at the time it was disclosed or becomes in the public domain through no fault of the receiver, or (ii) was known to the receiver, without restriction, at the time of disclosure, or (iii) was independently developed by the receiver without any use of the discloser’s Confidential Information, or (iv) becomes known to the receiver, without restriction, from a source other than the discloser without breach of any confidentiality agreement and otherwise not in violation of the discloser’s rights.
6.3 Terms of this Agreement. Each party agrees to keep confidential and not to disclose the terms and conditions of this Agreement to any third party other than (a) in confidence to its affiliates, actual or potential investors, banks, lawyers, accountants and other professional advisors; (b) in connection with the enforcement of its rights under this Agreement; (c) as may be required by law, including in connection with the requirements of a public offering or securities filing; and (d) in confidence in connection with a merger or acquisition or a proposed merger or acquisition.
7.1 Indemnity. Noyo agrees to (a) defend or, at its option, to settle, any third party claim (a “Claim”) brought against Customer (i) asserting that the Platform infringes any patent or copyright, or misappropriates any trade secret, of any third party; or (ii) consisting of a claim for bodily injury, death or damage to tangible property, in each case due to the negligent acts or omissions of Noyo; and (b) indemnify and hold Customer harmless against all damages and costs finally awarded against Customer under any such Claim or agreed upon in settlement thereof. Customer agrees to (1) defend or, at its option, to settle, any Claim brought against Noyo (A) asserting that Customer’s system, the Customer Data or any other materials it provides to Noyo (I) infringe any patent or copyright, or misappropriate any trade secret of a third party or otherwise violate any third party proprietary rights, or rights of privacy and publicity; or (II) have been collected, processed or provided to Noyo in violation of applicable U.S. or foreign laws or regulations, including applicable data protection legislation or commitments; or (B) consisting of a claim for bodily injury, death or damage to tangible property, in each case due to the negligent acts or omissions of Customer or any of its Subscribers; and (2) indemnify and hold Noyo harmless against all damages and costs finally awarded against Noyo under any such Claim or agreed upon in settlement thereof.
7.2 Process. The parties agree that each indemnifying party’s obligations under Section 7.1 are subject to the indemnified party under such section taking all reasonable steps to mitigate any potential expenses and providing the indemnifying party with (a) prompt written notice of any such Claim, or possibility thereof; (b) sole control and authority over the defense or settlement of such Claim; and (c) proper and full information and assistance, at the indemnifying party’s expense, to settle or defend any such Claim.
7.3 Potential Claim. If the Platform is, or in Noyo’s opinion might be, held to infringe as set forth above, Noyo may, at its sole option and expense procure for Customer the right to use such infringing Platform as provided herein or modify the Platform so as to avoid infringement. If such alternative is, in Noyo’s opinion, not commercially reasonable, Customer’s right to use the Platform and its obligation to pay the Service Fee shall terminate. In such a case, Noyo’s sole remaining liability shall be its obligation to reimburse awarded damages and costs as set forth above.
7.4 Exceptions. Notwithstanding the provisions of Section 7.1, Noyo assumes no liability for infringement claims arising from (a) the combination of the Platform with products not provided by Noyo; (b) any portion of the Platform consisting of Customer Data or other Customer or third party materials; (c) any modification to the Platform, unless such modification was made by Noyo; or (d) use of the Platform in a manner other than for which it was designed. Notwithstanding the provisions of Section 7.1, Customer assumes no liability for infringement claims to the extent covered by Noyo’s indemnity under such section. To the extent a Claim for bodily injury, death or damage to tangible property is based on the negligent acts of both parties, the parties’ liability shall be proportional based on the respective fault of the parties.
7.5 No Other Liability. This Section 7 states the entire liability and obligations of each party, and the exclusive remedy of the other party, with respect to any actual or alleged infringement of any patent, copyright, trade secret, trademark or other intellectual property right by the Platform or Customer Data.
8. Liability Limits.
8.1 No Consequential Damages. EXCEPT AS PROVIDED BELOW, UNDER NO CIRCUMSTANCE OR THEORY OF LIABILITY WILL NOYO OR ITS LICENSORS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR WILL NOYO, CUSTOMER, THEIR LICENSORS OR SUPPLIERS OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE RESPONSIBLE FOR LOST PROFITS, LOST SAVINGS, LOSS OF INFORMATION OR DATA, OR ANY OTHER SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN EACH CASE ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE SALE OF, USE OF, OR INABILITY TO USE, THE PLATFORM OR ANY OTHER PRODUCT OR OTHER SERVICE PROVIDED IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.2 Maximum Liability. EXCEPT AS PROVIDED BELOW, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT FOR MORE THAN THE FEES PAID TO NOYO IN THE 12 MONTHS PRIOR TO THE DATE OF SUCH CLAIM, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8.3 Exclusions. The limitations in this Section 8 do not limit liability for breach of, or liability under, Section 6 or 7, any claim for violation of Noyo’s intellectual property rights or, in the case of Section 8.2, Customer’s obligation to pay the Service Fee and other amounts payable for use of the Platform and other services provided hereunder. These limitations are an essential part of this Agreement.
9.1 Non-waiver. No term or provision of this Agreement will be deemed waived and no breach will be deemed excused unless such waiver is in writing and signed by the party claimed to have waived. No waiver by either party of a breach of this Agreement by the other party will constitute a waiver of any different or subsequent breach.
9.2 Partial Invalidity. If any provision of this Agreement is held to be unenforceable, the remaining provisions will continue in full force and effect. In addition, the parties will negotiate in good faith to modify any unenforceable provision so as to make it enforceable under applicable law, while keeping the modified provision as consistent as possible with the original intent of the parties.
9.3 Assignment. Except as otherwise expressly permitted under this Agreement, neither party’s rights or obligations under this Agreement (except the right to receive money) may be assigned or delegated without the written consent of the other party, except that either party may without such consent assign and delegate all of its rights and obligations under this Agreement (a) to an entity controlling, controlled by, or under common ownership or control with such assigning party; or (b) in connection with a merger, acquisition, reorganization, or other sale of all or substantially all of the assigning party’s business or assets relating to this Agreement. Any consent required by this Section will not be unreasonably withheld, conditioned or delayed. In the case of any assignment permitted hereunder without the other party’s consent, the assignor will promptly notify the non-assigning party in writing of the assignment and will include in its notice a statement of the facts that permit assignment without consent.
9.4 Governing Law; Jurisdiction; Prevailing Party. This Agreement will be governed by the laws of the state of California, without reference to conflicts of law principles. All disputes arising out of or related to this Agreement (other than to enforce a judgment) will be subject to the exclusive jurisdiction of the state or federal courts located in San Francisco, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. In any legal proceeding between the parties arising from this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding.
9.5 Notices. All notices under this Agreement must be in writing and may be delivered by email, mail, or personal delivery to each party as set forth on the cover page (as it may be modified by the recipient by notice to the other). All such notices will be effective upon delivery, but when emailed such notices will be effective only upon confirmation of receipt.
9.6 Entire Agreement; Amendment. This Agreement together with any exhibits constitutes the entire agreement between the parties with respect to the subject matter hereof. Except as expressly permitted herein, this Agreement may be altered only by a written amendment identified as such and signed by duly authorized personnel of both parties. All such amendments to this Agreement will be binding on both parties.
9.7 Force Majeure Events. Neither party will be liable for any failure to perform any of its obligations under this Agreement (other than the payment of money) which results from an act of God, the elements, fire, flood, component shortages, force majeure, riot, insurrection, industrial dispute, accident, war, embargoes, legal restrictions or any other cause beyond the control of the party.
9.8 Export Restrictions. Customer acknowledges that the laws and regulations of the United States restrict the export and reexport of commodities and technical data of United States origin, which may include the Platform. Customer agrees not to export or re-export such items or any part thereof, in any form, without obtaining the appropriate United States and foreign government licenses. Noyo’s obligations hereunder will at all times be subject to the export control laws and regulations of the United States government and any amendments thereof.
9.9 Construction. This Agreement is the result of negotiations among, and has been reviewed by, Noyo and Customer. Accordingly, this Agreement will be deemed to be the product of both parties, and no ambiguity will be construed in favor of, or against, either party.
9.10 Other Interpretive Provisions. References in this Agreement to “Recitals,” “Sections” and “Exhibits” are to recitals, sections and exhibits herein and hereto unless otherwise indicated. The words “include” and “including” and words of similar import when used in this Agreement will not be construed to be limiting or exclusive. For purposes of this Agreement, the word “will” shall be equivalent in meaning to the word “shall,” both of which describe an act or forbearance which is mandatory under this Agreement. Except as provided in a particular context, the word “or” when used in this Agreement may mean each as well as all alternatives. Headings in this Agreement are for convenience of reference only and are not part of the substance hereof. All terms defined in this Agreement in the singular form will have comparable meanings when used in the plural form and vice versa.