The terms and conditions provided below (the “Terms and Conditions”) shall apply to and govern software and services (collectively the “Services”) and any other services performed by Triyam (“Company”) pursuant to a statement of work, order or quote issued and/or executed by Company that are provided to any person or entity (the “Client”) in the absence of a currently enforceable written agreement between the Client and Company with respect to such Services. The tendering of any Services by the Company for the Client, and/or the request for other Services from Company, and/or the payment by Client for any such Services, shall constitute acceptance by Client of all of these Terms and Conditions. If Client issues a purchase order, memorandum, or any other instrument purporting to cover Services that is not accepted in writing by an authorized officer of Company, then such purchase order, memorandum, or other instrument shall be for Client’s internal purposes only and is not binding upon Company whether communicated before or after commencement of Services. Any currently enforceable agreement between Client and Company regarding the Services shall supersede these Terms and Conditions. For purposes of these Terms and Conditions, “Company” means that particular subsidiary or affiliate of Access CIG, LLC that is providing the Services to Client.

1.    Grant of License. Subject to the terms and conditions of this Agreement, Company hereby grants to Client a nonexclusive, nontransferable license to access and use Company’s proprietary software (object code only), Fovea, hereto (“Company Software”), including related user instructions, updates, customizations, add-ons, new products, and training materials (collectively “Documentation”).  “Company Software” also includes all successor applications. The license granted in this Agreement shall commence upon the Effective Date.  The license allows for the use of the Company Software and Documentation solely by the Client.

2.    Prohibited Uses and Client Obligations.  Client shall not take any of the following actions with respect to the Company Software or Documentation:

  1. Reverse engineer, decompile, disassemble, re-engineer or otherwise determine, attempt to determine, or permit, allow or assist others to determine, the source code or the structural framework for part or all of the Company Software, or any Company or third-party website hosting the Company Software;
  2. Cause or permit any use, display, loan, publication, transfer of possession, sublicensing or other dissemination of the Company Software or Documentation, in whole or in part, to or by any third party without Company’s prior written consent;
  3. Download in bulk or parts any data stored in Company Software unless for the purposes intended for normal Company Software usage as instructed to Client by Company;
  4. Cause or permit any change to be made to the Company Software or Documentation without Company’s prior written consent;
  5. Use the Company Software or Documentation in any manner for any purposes that infringes, misappropriates, or otherwise violates any intellectual property right of Company or a third party, violates any privacy right of a third party, or that violates any applicable law;
  6. Access or use the source code for the Company Software; or
  7. Use the Company Software for purposes of: (i) benchmarking or competitive analysis of the Company Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purposes that is to Company’s detriment or commercial disadvantage.

If Client learns or has reason to believe an activity prohibited by this Section 2 has taken place, Client shall promptly inform Company, and shall cooperate with Company in investigating, responding to, and remediating any harm caused by the prohibited activity.

Client shall ensure that Client’s use of the Company Software and all Client Data is at all times compliant with Client’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Client is solely responsible for the accuracy, content and legality of all Client Data. The term “Client Data” means: (a) all data that is in the possession of, or controlled by, Client and all data summarizing, aggregating, concerning or indexing such data (regardless of whether or not owned by the Client or generated or compiled by Client); (b) all other records, data, files, input materials, reports, forms and other such items that may be received, computed, developed, used or stored by Company from, for or on behalf of Client, or in connection with the services provided under this Agreement. Client Data expressly excludes De-identified Data; and (c) all data, files and other records received by Company from Client through direct file transfer or through access granted to Company through which such data was copied by Company from Client’s infrastructure or infrastructure hosted by third party for the Client.

3.    De-identified Data. At its own cost and expense, Company shall de-identify Client Data in accordance with 45 C.F.R. §164.514(b)(2) (“De-identified Data”) for Company’s research use or in developing, refining, and improving the Company Software. For purposes of this Agreement, De-identified Data is not Client Data.

4.    Payment

  1. License and Service Fees; Payment TermsIn consideration for Company’s grant of the license for the Company Software, Documentation, Third-Party Items, interfaces, installation and training, data conversion, and on-going support, Client agrees to pay to Company charges for services as set forth in an applicable Order Form, SOW, or Price Schedule (the “Ordering Document”). Rates are fixed for the first [twelve] months and shall thereafter increase as set forth herein over the rates then in effect every twelve months (even after termination or expiration of this Agreement and/or any Ordering Document, for so long as Company has any Records in its care, custody, and control). “Records” means Client’s documents, media, open shelf storage, digital images, data, records, and other deposit items stored or tendered for storage with Company, including items in transit. Rates shall increase by no less than the increase in the CPI-U. CPI-U shall mean the Consumer Price Index as published by the U.S. Department of Labor, Bureau of Labor Statistics for all Urban Consumers, “all items” (1982-84=100). CPI-U shall be measured by the twelve-month period commencing with the first day of the month that is at least 60 days prior to (a) the month in which the Effective Date occurs; and (b) the month that services commence under any Ordering Document, for any services performed in connection therewith. Payment is due thirty (30) days from the date of Company’s invoice. Client may, without triggering a default hereunder and without incurring interest, withhold disputed amounts from any invoice submitted by Company provided that Client, by the due date of the invoice, both pays the undisputed portion of any invoice and informs Company in writing of the disputed amount and the basis for such assertion. Company agrees to reconcile such discrepancies and refund any overpayments, and/or disputed amounts within thirty (30) working days after having received such written notice from Client. Upon verification of overpayment and/or dispute, Company shall issue a credit within fifteen (15) working days and/or Client shall pay any amounts owed within fifteen (15) working days of resolution. Software subscription/license fees are billed annually or monthly, in advance, as specified in the payment terms in the applicable Order Form, SOW in advance. Invoicing will begin on the date when Company sets up and configures the application and Client has access to the program (“Start Date”). Client payment by credit card shall incur an additional fee equal to 4% of the invoice amount (“Credit Card Fee”). Company may revise the Credit Card Fee from time to time upon thirty (30) days’ notice to Client. Late payments shall accrue interest at the rate of 18% per annum or the maximum allowed by law. Payments received may be applied to the oldest invoices due.
  2. Support Fees. During the Term of this Agreement and any renewal period thereof, Client shall pay Company a monthly or annual subscription fee as stated on an Ordering Document for access, service, and support of the software applications listed (as amended from time to time). Any Company Software support fees paid to Company by Client under this Agreement shall not be refunded to Client upon termination of this Agreement. Company may contract with third-party vendors (“Vendors”) to obtain and distribute applications, data, and/or services to Company’s Clients. These items are available through Company as a “Third-Party Item”.  If any Vendor raises its fees, Company may increase the Company Software support fees paid by Client.
  3. Additional Software, Equipment, or Services. Custom programming, setup, consulting, training, equipment, software, hardware support, or services not otherwise included in an Ordering Document or as explicitly set forth in this Agreement (collectively, “Additional Services”) shall only be provided to Client at Company’s discretion and for an additional fee agreed to in writing in advance of providing such Additional Services.
  4. Other Expenses. Any travel and related expenses incurred for on-site visits will be pre-approved by Client and billed at actual cost. Any sales tax as applicable will be calculated at time of invoice and borne by Client. Third Party services, ISP, and other services not included in an Ordering Document or explicitly under this Agreement are the responsibility and a cost of Client.

5.   Third-Party ItemsSubject to the terms and conditions of this Agreement, Company agrees to provide, and Client agrees to license, the “Third-Party Items” in accordance with the payment terms set forth in this Agreement.  Client acknowledges that the proprietary and intellectual property rights to the Third-Party Items are owned by third party vendors (“Third Parties”).  CLIENT further acknowledges that except for the payment to Company for the Third-Party Items, all of its rights and obligations with respect thereto flow from and to the Third Parties.  Company shall provide Client with copies of documentation and warranties for the Third-Party Items which are provided to Company.  Company hereby reserves a security interest in the Third-Party Items which will not be satisfied until Company has been paid in full for the Company Software and Third-Party Items.  Client shall, upon request by Company, execute financing statements deemed necessary or desirable by Company to perfect such security interest.  Client authorizes Company to file a copy of this Agreement or a financing statement with the appropriate authorities at any time after the Effective Date in order to perfect Company’s security interest.  A financing statement may be filed by Company without Client’s signature on the basis of this Agreement as permitted by law.  Client shall keep the Third-Party Items in good working order and repair until it has paid for the Company Software and Third-Party Items in full.  Client shall indemnify and hold harmless Company from and against any and all damages, amounts paid in settlement and reasonable fees and costs (including reasonable attorney fees) arising out of or relating to any claims by third parties arising out of or relating to the use or misuse by the indemnifying party, its employees, subcontractors and any other persons under its authority or control of any Third-Party Items.

6.  Term; Termination.   CLIENT shall deliver thirty (30) days’ prior written notice to ACCESS in the event CLIENT desires to terminate all Services. This Agreement may also be terminated at any time (a) by mutual written agreement of the parties, (b) on the date that is 60 days after either party notifies the other that it has materially breached this Agreement, if the breaching party fails to cure such breach, or (c) the date that is 60 days after Client fails to pay any amount due for the Company Software or services per the payment terms in this Agreement.  Company may also terminate this Agreement immediately if Client breaches Sections 1, 2, or 15 with respect to the license of the Company Software or Documentation. Each Party’s accrued rights and liabilities and the rights and obligations of each Party that are expressly or by implication intended to be effective upon or remain in effect following the termination or expiration of the Agreement, including, without limitation, the right to recover damages, will survive any termination or expiration of the Agreement. Company agrees to provide services and assistance to wind-down or transition the services provided Client pays: (a) Company’s charges for account closing services in full in advance (including decommissioning services if applicable); and (b) stays current on monthly payments unrelated to account closing services and (c) any accrued and unpaid amounts due to Company.   Upon the termination of this Agreement, all rights and licenses granted hereunder shall likewise terminate (except any rights surviving pursuant to Section 28).

7.    Data Access on Termination. When Client wishes to terminate the Agreement after the initial term as per the terms in Section 6 above, Company may provide Client two options for managing their data which remains with Company Software: (a) return all Client Data to Client on request by Client (b) execute digital destruction of Client Data residing in Company software on request by Client. Client has to choose these options at time of termination and Company will execute the selected option for a service fee which will be determined and mutually agreed to. The service fee will not exceed the sum of the fees for services as stated on Price Schedule and the fees paid during the previous twelve months prior to the initiation of termination. Any other incidental expenses such as additional software or hardware, equipment, or services will be charged as per terms in of this Agreement.

8.    Feedback. If Client or any of its employees or contractors, either before or after the Effective Date, sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Company on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.

9.    New Products and Add-ons.  From time to time, Company may offer new applications and products (“New Products”) which Client can license as New Products or as an add on (“Add-Ons”) to the Company Software installation.  Upon receipt of the Client’s signed authorization for New Products or Add-Ons, and upon receipt of the additional license fee, the Add-On or New Product shall be deemed to be part of this Agreement subject to all terms and conditions herein.

10.  Representations and Warranties

  1. Mutual. Each Party represents, warrants, and covenants, as applicable, to the other Party that: (a) It has all right, title, and authority to enter into this Agreement; (b) its execution of this Agreement and its engagement hereunder do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a party or by which it is bound. Company represents, warrants, and covenants the provision of the Software (other than content, data or other intellectual property from Client or any third party) does not and will not violate any applicable statute, regulation, or law (including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, credit or financial reporting laws and regulations), or infringe or misappropriate any intellectual property right or other legal right of any third party. Client represents, warrants, and covenants the provision of the Client Data and Client’s use of the Software do not and will not violate any applicable statute, regulation, or law (including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, credit or financial reporting laws and regulations), or infringe or misappropriate any intellectual property right or other legal right of any third party.
  2. Performance Warranty. During the Subscription Term, Company warrants that the Software: (a) will achieve in all material respects the functionality described in the Documentation; and (b) has been subjected to industry best practices to ensure it contains no viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”), except for any Malicious Code contained in Client uploaded attachments or otherwise originating from Client. Client’s sole and exclusive remedy for Company’s breach of this warranty shall be for Company to use commercially reasonable efforts to modify the Software to correct the nonconformity and if Company is unable to correct the nonconformity, Client shall be entitled to terminate the applicable Ordering Document and the Agreement. Access shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of Client’s awareness of the respective material functionality problem. The warranty set forth in this Section 10(b) is made to and for the benefit of Client only and shall only apply if the Software has been utilized in accordance with this Agreement and applicable law.

11. Indemnification and Limitation of Liability.  Each party (each an “Indemnifying Party”) agrees to defend at its expense and indemnify and hold harmless the other party and its affiliates, directors, officers, employees, agents, successors and assigns (each an “Indemnified Party”) from and against any and all losses, costs, damages, liabilities and expenses including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party (collectively, “Losses”) arising from or in connection with any such third party claim for:  (i) the death or bodily injury of any person caused by the negligence or willful misconduct of the Indemnifying Party; or (ii) the damage, loss or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the Indemnifying Party. Client shall further indemnify, defend and hold harmless Company as an Indemnified Party from and against any Losses incurred by Company as an Indemnified Party resulting from any third party claim for: (i) Client Data, including processing or use of Client Data pursuant to this Agreement, or any errors, omissions or others faults in the Client Data; or (iv) negligence, abuse, misapplication, or misuse of the Company Software or Documentation by Client, or on its behalf by Client’s affiliates, directors, officers, employees, agents, successors and assigns.

The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party’s failure to provide notification shall not affect the indemnifying party’s indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party’s ability to defend the applicable claim.  The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim.  The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing.  The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party.  If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses.

Neither party will be liable for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind whatsoever arising out of or relating to this Agreement.  To the fullest extent permitted by law, the total liability, in the aggregate, of Company, Company’s officers, directors, partners, employees, and agents, to Client, and anyone claiming by, through, or under Client for any claims, losses, costs, or damages, or for loss of revenue or profit in connection with Company’s performance or failure to perform this Agreement, whether foreseeable or unforeseeable, even if Consultant has been advised of the possibility of such damages, arising out of this agreement, or liability arises from breach of contract, tort, any express or implied warranty, misrepresentation, negligence, strict liability, tort or any other theory whatsoever arising out of, resulting from or in any way related to this Agreement, shall not exceed the aggregate fees actually paid to Company by Client hereunder during the previous twelve months prior to the initiation of judicial action.  Company shall not be liable for any loss or damage caused by completing any requests, orders or instructions received from any authorized Client employee or representative. In the event of any conflict between this Section 11 and any other term or provision, whether herein contained or in any other agreement between the parties (regardless of whether such other agreement is executed before or after this Agreement), this Section 11 will control. Neither party shall be liable as a result of any negligent or willful misconduct of the other party (or the persons under its control) in performing its obligations under this Agreement. Any action by Client against Company shall be commenced within 1 year after the cause of action has accrued. By entering into this Agreement, Client agrees to accept responsibility for (a) the selection of the Company Software to achieve Client’s intended results; (b) the use of the Company Software for purposes intended and as instructed by Company; (c) the results obtained from the use of the Company Software; and (d) the selection of, use of and results obtained from any equipment, software or services used with the Company Software. 

12. Arbitration. All claims and disputes that arise out of or relate to this Agreement or the breach, termination, interpretation, performance, or enforcement, shall be subject to final and binding arbitration in Boston, MA before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the expedited procedures in those Rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The arbitrator shall be a retired state or Federal court judge or an attorney with at least 20 years of experience in commercial contracts. Notwithstanding the foregoing, the parties may bring court proceedings or claims against each other: (i) as part of separate litigation commenced by an unrelated third party; or (ii) if not first sought from the arbitrator, solely to obtain preliminary injunctive relief or other interim remedies pending conclusion of the arbitration.

13. Expenses; Taxes.  Client will pay Company for (a) all travel and out-of-pocket expenses incurred by Company personnel to travel to and from the Client, including without limitation, travel, meals and lodging (“Travel and Out-of-Pocket Expenses”) in connection with providing any services under this Agreement, as well as travel time after the installation, and (b) all state and local taxes imposed on the transactions contemplated by this Agreement, excluding taxes imposed on or measured by Company’s income (“Taxes”).  Travel, Out-of-Pocket Expenses, and Taxes will be paid or reimbursed to Company within 30 days after sending Client the invoice therefor.

14. Proprietary Rights.   Client represents, promises and agrees as follows:

  1. Company owns the entire right, title, and interest in and to all Company Software, Documentation, interfaces, custom-developed software, reports, and all other technical information (except for Client supplied information such as patient data). Client has the right to use the aforementioned items to the extent specified in this Agreement.  Company likewise owns all patents, trademarks, copyrights, trade names and other proprietary or intellectual property in, or used in connection with, the aforementioned items.  The aforementioned items also contain confidential and proprietary trade secrets of Company which are protected by law and are of substantial value to Company.
  2. Client shall keep the Company Software and Documentation free and clear of all claims, liens and encumbrances and shall maintain all copyright, trademark, patent or other intellectual or proprietary rights notices which are set forth on the Company Software, Documentation and all permitted copies of the foregoing.

15. Confidentiality.  During the term of this Agreement, each party (“Disclosing Party”) may provide the other (“Receiving Party”) with certain confidential and proprietary information (“Confidential Information”).  Confidential Information includes Company Software, Documentation, the information imparted during training provided by Company, and any other information relating to Client’s or Company’s operations, services, products, research or development which is identified by the Disclosing Party at the time of disclosure as confidential.  “Confidential Information” will not include information that (a) is publicly known at the time of its disclosure; (b) is lawfully received by the Receiving Party from a third party not under an obligation of confidentiality to the Disclosing Party; (c) is published or otherwise made known to the public by the Disclosing Party; or (d) was generated independently by the Receiving Party before disclosure by the Disclosing Party.  The Receiving Party will refrain from using the Disclosing Party’s Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement.  The Receiving Party will likewise restrict its disclosure of the Disclosing Party’s Confidential Information to those who have a need to know such Confidential Information in order for the Receiving Party to perform its obligations and enjoy its rights under this Agreement.  Such persons will be informed of and will agree to the provisions of this Section 14, and the Receiving Party will remain responsible for any unauthorized use or disclosure of the Confidential Information by any of them.  The Receiving Party may also disclose Confidential Information of the Disclosing Party pursuant to the requirement or request of a governmental agency, a court or administrative subpoena, an order or other legal process or requirement of law, or in order to defend its rights hereunder, so long as it shall (i) first notify the Disclosing Party of such request, requirement or proposal for use in defense; (ii) in the case of a required disclosure, furnish only such portion of the Confidential Information as it is advised in writing by counsel that it is legally required to disclose; and (iii) cooperate with the Disclosing Party in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed.  Upon termination of this Agreement, each party shall return to the other party (or destroy, if requested to do so by the other party) any documents or other information or materials in its possession or under its control, which constitute Confidential Information. Notwithstanding the preceding sentence, the Receiving Party shall not be required to (a) destroy or erase any general electronic archive or back-up tapes that are routinely kept by the Receiving Party in the ordinary course of business pursuant to records retention and disposition policies, (b) return, destroy or erase any Confidential Information subject to “litigation holds” on destruction of documents imposed by its counsel in connection with pending or reasonably anticipated litigation, or (c) return, destroy or erase any Confidential Information required to be retained by reason of legal, accounting or regulatory purposes or requirements, provided, any such retained Confidential Information shall be kept confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, if Client is satisfied with the Company products and services, Client agrees to act as a reference for Company to other potential Clients and accept and assist in site visits by such prospective Clients to Client’s premises, so long as the same shall be with reasonable notice and coordinated by Company with Client in advance.

16. Excusable Non-performance. Except for obligations to make payments hereunder when due, if either party is delayed or prevented from performing its obligations under this Agreement as a result of any cause beyond its reasonable control, including natural disaster, fire, flood, riots, acts of war, terrorism or insurrection, unusually severe weather, Acts of God, labor disputes and governmental regulations, the delay shall be excused during the continuance of, and to the extent of, such cause, and the period of performance shall be extended to the extent necessary to allow performance after the cause of delay has been removed.  Company agrees to work with Client, at Client’s request, to develop mutually agreeable alternatives in order to minimize the negative impact of any such delay.

17. Audit. Client agrees to allow Company, with reasonable prior notice, to enter Client’s premises during normal business hours, or electronically access the Company Software as (“Location”), to verify Client’s compliance with this Agreement.

18. Assignment. Client may not assign or transfer this Agreement or assign, subcontract or delegate any of its rights, duties or obligations hereunder without the prior written consent of Company.  For purposes of this Section 18, “assignment” shall include (a) any transaction or series of related transactions resulting in the sale, transfer or assignment of 50% or more of the equity security interest or voting interest of Client or Client’s ultimate parent and (b) any merger, consolidation or similar transaction to which Client or its ultimate parent is a party.  If Client makes any assignment or transfer under this Agreement, its assignee or transferee shall not have any license to utilize the Company Software and Documentation except at the Location and by the same end-users as utilized the Company Software and Documentation prior to the assignment or transfer.

19. Remedies. Except as specifically provided herein, the remedies provided to the parties under this Agreement shall be cumulative and non-exclusive, and the parties shall be entitled to seek any other rights to which they may be entitled at law or in equity, subject to the terms of this Agreement.

20. Public Announcement. Company may include Client’s name and other indicia in its lists of Company’s current or former customers of Company in promotional and marketing materials, including, but not limited to, on Company’s website.  Additionally, the Parties shall work together in good faith to issue at least one mutually agreed upon press release within 60 days of the Effective Date, and Client agrees to reasonably cooperate with Company to serve as a reference account upon request for a period of 12 months following the Effective Date.

21. Entire Agreement.  This Agreement, including all Exhibits hereto (all of which are incorporated herein by this reference), contains the entire agreement of the parties with respect to the subject matter hereof and shall supersede and replace any and all other prior or contemporaneous discussions, negotiations, agreements or understandings between the parties, whether written or oral, regarding the subject matter hereof.    In the event of any conflict between a provision contained in an Exhibit to this Agreement and these General Terms, the provision contained in the Exhibit shall control.  No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced.  No consent by either party to, or waiver of, a breach by either party shall constitute a consent to or waiver of any other different or subsequent breach by either party.

22. Severability. If any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, the remaining provisions of this Agreement shall remain in full force and effect.  The unenforceable or invalid provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.

 23. Notice. Any notice or other communication required or permitted hereunder shall be in writing, and will be deemed given when delivered personally, sent and confirmed by email transmission, sent by commercial overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid.

24. Construction. As used in this Agreement, “including” means “including without limitation”.  The words “or” and “nor” are inclusive and include “and”.  The singular shall include the plural and vice versa.  The title of each Section and Exhibit is inserted solely for convenience of reference and shall not constitute a part of this Agreement, nor shall they affect the meaning, construction or effect of this Agreement.

25. Counterparts; Electronic SignaturesThis Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.  Electronic signatures and signatures transmitted by facsimile, email or other means of electronic transmission shall be deemed for all purposes to have the same legal effect as delivery of an original executed copy of this Agreement and any documents delivered or issued pursuant to this Agreement.

26. Governing Law; Enforcement. This Agreement shall be enforced in accordance with the laws of the Commonwealth of Massachusetts, and the parties hereto agree that any action relating to this Agreement shall be instituted and prosecuted in the appropriate state or federal courts of the Commonwealth of Massachusetts and each party waives any right to change of venue.  If Company is required to engage in any proceedings, legal or otherwise, to enforce or protect its rights under this Agreement with respect to its proprietary rights in the Company Software, Company shall be entitled to recover from Client, in addition to any other sums due, reasonable attorneys’ fees, costs and necessary disbursements involved in such proceedings.

27. Independent Contractor. Triyam provides software and services to Customer as an independent contractor.  Triyam may engage subcontractors to provide certain of the services, but shall remain fully responsible for such performance.

28. Survival. The provisions of Sections 2, 4-6 and 9-16 of this Agreement, and any other terms that by their nature extend beyond the expiration or termination of this Agreement shall remain in effect until fulfilled.



Exhibit 1 – Service Levels; Support; Access

  1. Service Provided. During the Term of this Agreement, Company shall provide:
    1. Access to Company archival software, Fovea (“Service”), from a cloud-based single instance multi-tenant hosting seven days a week, unless
      1. Company gives notice of scheduled inaccessibility of servers for the purpose of system administration, maintenance, or upgrade; or
      2. User is unable or connect to Company’s server through no fault of Company, or due to causes outside Company’s control; or
      3. User becomes more than 30 days past due on any monthly support fees or other amounts due Company.
    2. Maintenance, enhancements, new releases, and upgrades to Company Software Applications including Documentation (“Updates”), to enable Company software to perform in accordance with the Documentation (as may be changed from time-to-time) in all material respects, on a schedule defined by Company.\
    3. Program defect support and corrections to Company Software,
    4. Provide support via email during Company’s normal business hours
    5. Provide telephone (help desk) assistance for Company Software during Company’s normal business hours and all non-holidays in a year to Client’s staff that have been properly trained by Company and certified by Company.
    6. Backup services. Client Data will be backed up securely by Company.
  2. Company shall not be obligated to provide. Under the terms of this Agreement, Company shall not be obligated to provide support for any of the following items, and may charge additional fees for assistance addressing these items:
    1. Support for non-Company software, or Third-Party Software not specified in Exhibit 2, including operating systems, network, backup, communications and system utilities
    2. Support for hardware including servers, workstations, printers, networks, backup systems, Internet and communications equipment, firewalls, etc.
    3. Client’s failure to comply with the operating and handling procedures outlined in the Documentation or other written instructions. Repairs, corrections, setup, or configurations (to software or data) because of unauthorized actions, modifications, or alterations performed by Client, or agents of Client
    4. Support to users who have not been previously trained and certified by Company.
    5. Support if Client does not promptly notify Company within a reasonable period of time after it knows of the need for such services,
    6. Accident, theft, vandalism, neglect, abuse or use which is not in accordance with instructions or specifications furnished by Company,
    7. Causes beyond the reasonable control of Company or Client, including natural disaster, fire, flood, unusually severe weather or Acts of God,
    8. Client failure to provide connectivity per paragraph #4 below, or is otherwise not in compliance with its obligations under this Agreement.
  3. Service Level Commitment. Company will use its best efforts to ensure 99.9% availability (as defined below) of the Service. “99.9% Availability” means that the Service will be unavailable no more than 43 minutes (>.10%) in any calendar month as determined by Company (excluding any period of unavailability described in the Exceptions section below).  The Service shall be deemed to be unavailable when Company’s automated monitoring system is unable to access the web or database servers of the Service (“Unavailability”).
    1. Exceptions. Company’s service level commitment does not cover any unavailability attributable to (a) Client’s use of the Service otherwise than in accordance with the Documentation or with user guides from time-to-time made available to Client; (b) any data entered into the Service by Client; (c) any event beyond the reasonable control of Company including the malfunction or unavailability of any public Internet backbone or network or of any service or other equipment outside of Company’s facility, or any failure of Client’s equipment or local access service, or (d) Scheduled Maintenance pursuant to Scheduled Maintenance section below.
    2. Scheduled Maintenance. “Scheduled Maintenance” shall mean any maintenance performed during the Standard Maintenance window as determined by Company (a) of which Client is notified 24 hours in advance or (b) the maintenance is performed without advance notice due to urgency of the maintenance in order to maintain the security and integrity of the system.  Notice of Scheduled Maintenance will be provided to Client by a method elected by Company (telephone, or email).  Company’s standard Scheduled Maintenance window is between the hours of 1:00 AM and 4:00 AM Eastern time.  Client shall be provided 24 hours’ advance notice in the event a change is made to the standard Scheduled Maintenance window.  The Service shall not be deemed unavailable during Scheduled Maintenance.
    3. Service Credit Remedy. If Company determines, in its reasonable judgment, that the Service did not attain 99.9% Availability during any calendar month, Company will credit Client’s account the prorated fees for one day’s service.  Client is entitled to a further credit, equal to the pro-rated fees for one day’s service, for each additional 43 minutes that the server is unavailable during any calendar month, provided that no credit shall exceed the pro-rated charges for one day’s service for any single day’s instance of Unavailability.  All service credit requests must be in writing and emailed directly to Company’s accounting department within ten (10) days from the date of the server unavailability.  Credits cannot be applied to any charges other than the user’s Fees.  Clients with multiple instances of services will not receive more than one credit for any instance of unavailability.  Eligibility for any credit is subject to the Client’s account being current and with no outstanding balances due.  THIS CREDIT SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE OUTAGE OR ANY FAILURE BY COMPANY TO MEET THE SERVICE LEVEL COMMITMENT.
  4. Access and Connectivity. Client shall afford Company employees and representatives, during business hours and without charge, reasonable access to and use of Client’s computer system to diagnose and make any change or repair required under this Agreement.
    1. Client shall be responsible for selecting its Internet Service Provider (ISP). Company shall not be responsible for connectivity from the Client to the internet, or the speed and/or performance of the internet.
    2. Client shall assure that Company, its employees and representatives have VPN access or such equivalent, meeting Company VPN standards, to Client network to perform required updates and support. Client will maintain a minimum number of Windows Terminal Client access licenses available for use by Company support staff per the Ordering Document.  Client shall allow Company to install industry diagnostic tools for monitoring the server or network in order to improve the performance of the system.
  1. Federal / State Regulatory Requirements. Company and Client each acknowledge that Federal and State governments may mandate compliance by Client with various regulatory requirements, some of which may necessitate modifications to the Company Software or service.  Client shall communicate timely all Federal and State regulations to Company.  Company will modify, as feasible, the features of Company Software or service so that Client may comply with the mandated requirements.  Company reserves the right in its sole discretion to charge Client for such changes, modifications, or additions to comply with Federal or State regulations.
  1. Additional Services. Company may provide additional assistance not otherwise provided for herein, upon request by Client, and upon agreement by Company.  Additional assistance may include:
  • Data preparation
  • Consulting
  • User training and certification in addition to services initially provided
  • Setup of new custom reports and forms, or modifications of existing reports
  • Setup of new servers, workstations, and printers
  • Setup of networks, firewalls, backup systems, Microsoft applications
  • Providing Client a backup copy of its data when requested by Client
  • Restoring Client’s data when requested by Client
  • Data deletion/destruction
  • Programming and customizations unique to the Client’s requirements

This additional assistance shall be provided via a separate agreement, or, in absence of such an agreement, at Company’s standard rates in effect at the time and for the type of service provided.                                                            


Exhibit 2 – Third Party Items

SendGrid – Used for sending email to Fovea users
Microsoft PowerBI – Used if Client has signed up for Business Intelligence module in Fovea

Client is responsible for selecting and contracting with an ISP of choice.

The configuration and specification of Third-Party Items per this Exhibit are subject to change by the manufacturer/vendor.  Should the actual configuration and specifications as set by the manufacturer differ from those set forth herein, Company agrees to provide, and Client agrees to accept, Third-Party Items that are comparable to those described above.