NAYYA TERMS AND CONDITIONS
These Terms and Conditions (the “ Agreement”) are between Nayya Health, Inc. (“Nayya”) and the customer that affixes its signature on the SaaS Agreement (“ Customer”). It applies to all Order Forms and governs Customer’s access and use of the product and features set forth in the Order Form, as well as the Professional Services that may be provided to the Customer. In the event of conflict between this Agreement, an Order Form or any Statements of Work, the following order of precedence apply: Order Forms and SOWs take precedence and prevail over this Agreement solely with their respective subject matter.
GENERAL
Definitions. To the extent not defined herein, all defined terms have the meanings ascribed to it in the accompanying Order Form.
Access and Use. Subject to the terms and conditions of this Agreement, Nayya hereby grants access to Customer, a non-exclusive, non-transferable, and non-sublicensable, limited right to access and use the Software Services during the Service Term identified in an Order Form solely for Customer’s benefit enrollment process and benefit engagement and utilization program with respect to its employees in accordance with the terms and conditions herein.
Software Services. Nayya reserves the right to include additional features and functionalities in the Software Services and also to remove and discontinue any Software Services’ features and functionalities that are no longer applicable to the feature set, as Nayya may determine from time to time in its sole discretion.
Use Restrictions. Unless otherwise set forth in an Order Form, Customer will not, and will not permit any third party to, use the Software Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, at any time without Nayya’s written consent, directly or indirectly, and shall not permit any third party to: (a) copy, modify, or create derivative works of the Software Services, in whole or in part; (b) rent, lease, lend, sell, resell, license, sublicense assign, distribute, publish, transfer or otherwise make available the Software Services, except as expressly permitted under this Agreement or an Order Form; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software Services, in whole or in part; (d) remove any proprietary notices from the Software Services; (e) use the Software 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, regulation, or rule; (vi) offer, sell, resell, license, sublicense, assign, distribute the Software Services or other software services offered by Nayya to existing customers of Nayya; or (vii) to Customer’s knowledge, offer, sell, resell, license, sublicense, assign, distribute the Software Services or other software services offered by Nayya to current prospective customers of Nayya, without Nayya’s consent.
Authorization. Customer may be required to obtain an authorization pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) from each of its employees in order to enable Nayya to provide the Software Services and Implementation Services, which may require access and use of an employee’s protected health information (“ PHI”) as defined under HIPAA. Customer hereby delegates to Nayya the authority to obtain HIPAA authorizations as necessary from employees to enable Nayya to provide the Software Services or Implementation Services.
Business Associate. To the extent the Customer, including its affiliates and subsidiaries, is considered a “Covered Entity” under HIPAA, any PHI received by Nayya from Customer shall be subject to the business associate agreement located at Nayya.com (the “BAA”).
Suspension. Notwithstanding anything to the contrary in this Agreement, Nayya may suspend Customer’s and any other user’s access to any portion or all of the Software Services immediately, if necessary, as follows: (a) Nayya reasonably determines that (i) there is a threat or attack on any of the Software Services; (ii) Customer’s use or any other user’s use of the Software Services disrupts or poses a security risk to the Software Services or to any other customer or vendor of Nayya; (iii) Customer or any other user is using the Software Services for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or other similar proceeding; or (v) Nayya’s provision of the Software Services to Customer or any other user is prohibited by applicable law; (b) any vendor of Nayya has suspended or terminated Nayya’s access to or use of any third-party services or products required to enable Customer to access the Software Services; or (c) following ten (10) days written notice in the event Customer fails to make a timely payment hereunder (any such suspension described in subclause (i), (ii), or (iii) a “Service Suspension”). When possible, Nayya will use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software Services following any Service Suspension. Nayya will use commercially reasonable efforts to resume providing access to the Software Services as soon as reasonably possible after the event giving rise to the Software Services Suspension is cured, provided that Nayya is not required to resume access upon the occurrence of (a)(iii) herein. Nayya will have no liability for any damage, liabilities, losses (including any loss of profits), or any other consequences that Customer or any other user may incur as a result of a Service Suspension.
CONFIDENTIALITY
Confidentiality - General. Each Party acknowledges and agrees that all of the information relating to the other Party and its employees, officers, directors, agents and contractors (collectively, “Representatives”) will be supplied with, come into possession of, or have access to, in connection with obtaining or providing the Software Services, whether in writing, by electronic transmission, orally or in any other form or manner, including the terms and conditions herein and all Order Forms, and, where applicable SOWs, shall be deemed to be confidential and proprietary unless the recipient proves by clear and convincing evidence that it (a) was known to the recipient at the time of disclosure as evidenced by any written documents in possession of the recipient; (b) is available to the general public at the time of disclosure to the recipient or is subsequently made available to the general public without fault of that Party; (c) is independently developed by recipient without use of any discloser Confidential Information; (d) is disclosed or becomes available to the recipient by reason of any act of any third person or organization having the right to disclose or publicize it; or (e) is information or data which the recipient is compelled to disclose by any law, regulation, governmental body or authority or by court order (“ Confidential Information”). For the avoidance of doubt, the Software Services is deemed Confidential Information of Nayya. Aggregated and de-identified data is not considered Confidential Information.
Disclosure to Representatives. Except as provided herein, each Party agrees to disclose Confidential Information only to those Representatives who have a need to know the information for purposes of this Agreement and who are under a written obligation to keep confidential the information received from the disclosing Party under terms no less protective than this Agreement.
Prevention of Other Disclosure or Use. Each Party agrees to make reasonable efforts to ensure the other Party’s Confidential Information is not directly or indirectly disclosed to or used by any person except as described in this Agreement or except as is expressly authorized in writing by the other Party. Each Party’s efforts will not be less than those which that Party takes or would be reasonable expected to take to prevent disclosure of its own confidential or proprietary information of like significance. Customer’s responsibilities in this Section shall apply to any third parties to whom it provides access the Software Services. Recipient’s obligations with respect to discloser’s Confidential Information under this Section will remain in effect for the Term and for so long thereafter as any such information constitutes Confidential Information under this Agreement
FEES; PAYMENT TERMS
Fees. Customer must pay all Fees identified in each Order Form in accordance with this Agreement. Except as expressly stated in this Agreement or in an Order Form: (a) all Fees are payable annually in advance; and (b) Customer must pay all Fees within thirty (30) days after Customer receives an invoice, which are deemed received when Nayya emails them to Customer’s designated billing contact.
Late Payments. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower.
Usage Limits. Nayya reserves the right to request, and Customer shall promptly provide, a census file on a quarterly basis, or upon such other time as Nayya determines. In the event the census files demonstrate that more Quantity of Seats utilize the Software Services than identified in the Order Form, Nayya shall retroactively (from the time Customer’s use exceeds the contracted quantity) and prospectively (for the remainder of the Service Term) increase fees on a pro-rata basis pursuant to the Order Form.
Modification of Fees Upon Renewal. Nayya reserves the right to apply an annual fee adjustment increase of 5% to the Software Services Fees over the prior twelve (12) months at the beginning of each Renewal Term.
Data Connection Fees. During the Service Term and to the extent available, Customer may elect for a third-party administrator (“TPA”) to provide data directly to Nayya in connection with the Software Services. To the extent that the fees of a data connection with the TPA are not specified on an Order Form, Customer agrees to pay such fees to Nayya in accordance with Section 3.1 above
Taxes. All fees are exclusive of taxes. IF Customer is required to pay or collect any federal, state, local, value added, or any similar tax by any government authority, then such taxes will be billed to and paid by Customer or such other designee with the thirty (30) days.
Form of Payment. The Parties agree that all Fees due and owing under this Agreement, Order Form, or Statement of Work shall be made through ACH transfers or wire transfers, unless otherwise agreed upon by both Parties in writing.
TERM; TERMINATION
Term. This Agreement will begin on the Effective Date and continue until all Order Forms expire or are terminated in accordance with this Agreement. The term of each Order Form will be set forth therein. The term of the Agreement is coterminous with the Service Term, unless terminated or not renewed in accordance with the express provisions of this Agreement. The Service Term of an Order Form will automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either party provides written notice of non-renewal to the other at least ninety (90) days in advance of the expiration of the then-existing Term.
Termination for Breach. Either party may terminate this Agreement or any Order Form for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this Agreement, within thirty (30) days after receiving reasonably detailed notice form the other Party alleging the breach.
Effect of Termination.All rights granted to Customer hereunder will immediately terminate upon any expiration or termination of this Agreement. No termination of this Agreement will result in any refund of any fees paid by Customer under an Order Form, or otherwise relieve Customer of its obligations to pay all committed fees required under any Order Form. Any terms which by their nature are intended to survive expiration or termination shall continue in full force and effect, including Section 2 (Confidentiality), Section 4.3 (Effect of Termination), Section 5 (Ownership; Customer Data), Section 6 (Indemnification), Section 7 (Limitation of Liability) and Section 10 (Miscellaneous)
OWNERSHIP; CUSTOMER DATA
Ownership. As between the parties, (a) Nayya owns all right, title, and interest, including all intellectual property rights, in and to the Software Services, and (b) Customer owns all right, title and interest, including all intellectual property rights, in and to Customer Data. If Customer or any of its employees, contractors, or agents sends or transmits any communications or materials to Nayya suggesting or recommending changes to the Software Services, new features or functionality relating thereto, or any comments, questions, suggestions or the like (“Feedback”), Nayya is free to use such Feedback irrespective of any other obligation or limitation between Customer and Nayya governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to Nayya on its behalf, and will cause its employees, contractors, and agents to assign, all right tile and interest in, and Nayya is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Nayya is not required to use any Feedback.
Customer Data. Customer Data means any data, information or material received by the Software Services from Customer or a Customer’s users in the course of accessing or using the Software Services. Customer Data does not include any aggregate, de-identified or statistical data. Customer hereby grants to Nayya a non-exclusive, royalty free, worldwide license to reproduce, distribute and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Nayya to provide the Software Services. Customer represents and warrants that it has obtained all consents and provided all notices required by applicable law in connection with the collection, processing, and use of Customer Data, including Nayya’s use thereof. Notwithstanding anything to the contrary, Nayya will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the implementation services and the Software Services and related systems and technologies and Nayya will be free (during and after the Service Term) to (a) use such information and data to improve and enhance the implementation Services or the Software Services and for other development, diagnostic, and corrective purposes in connection with the implementation services, the Software Services, and other Nayya offerings; and (b) disclose and use such data solely in aggregate or other de-identified form for business purposes.
INDEMNIFICATION
Indemnification by Nayya. Nayya shall indemnify, defend and hold harmless Customer from and against any and all losses incurred by Customer resulting from an action by any third party, other than a Customer user, to the extent that such losses arise out of or result from, or are alleged to arise out of or result from, the use by Customer of the Software Services in accordance with his Agreement that infringes or misappropriates such third party’s intellectual property rights. The foregoing obligation does not apply to the extent that the alleged infringement or misappropriation arises from (1) Customer Data or other information or materials furnished by Customer or any third party; (2) access to or use of the Software Services in combination with any hardware, system, software, network or other materials or service not provided by Nayya or specified for Customer’s use; or (3) failure to timely implement any modification, upgrade, replacements or enhancements made available to Customer by or on behalf of Nayya.
If use of the Software Services by Customer in accordance with this Agreement is, or in Nayya’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third party’s intellectual property right, Nayya may, at its option and sole cost and expense, determine the manner in which to proceed.
Indemnification by Customer. Customer shall indemnify, defend and hold harmless Nayya from and against any and all losses, claims, suits or demands incurred by or awarded against Nayya from any action by any third party to the extent that such losses, claims, suits or demands arise out of, relate to or result from, or are alleged to arise out of or result from (a) a breach of this Agreement by Customer or its employees or agents or (b) the actions of any third party who has been provided access to the Software Services by Customer or Customer’s employees.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL COSTS OR DAMAGES (INCLUDING, WITHOUT LIMITATION, DOWNTIME COSTS, LOST BUSINESS, REVENUES OR PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF OR DAMAGE TO DATA, OR SOFTWARE RESTORATION), WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT IS LIMITIED TO THE AMOUNTS PAID BY CUSTOMER IN THE ONE YEAR PERIOD PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY AROSE. NAYYA IS NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM DELAYS, DELIVERY FAILURES OR OTHER SIMILAR PROBLEMS. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY FOR (1) DEALTH OR PERSONAL INJURY CAUSED BY NAYYA’S NEGLGIENCE; OR FOR (2) ANY INJURY CAUSED BY NAYYA’S FRAUD OR FRAUDULENT MISREPRESNTATION.
DISCLAIMER
NAYYA MAKES NO WARRANTIES OR REPRESENATIONS, EXPRESS, SATUTORY, IMPLOIED, OR OTHERWISE, WITH RESPECT TO TH ESOFTWARE SERVICES, THE IMPLEMENTATION SERVICES, OR ANYTHING ELSE, AND NAYYA HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF TITLE, NONIFNRIGNEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, NAYYA DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
FORCE MAJEURE
Force Majeure. In no event will either party be liable to the other party or be deemed to have breached this agreement for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments) if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockages in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) internet, electronic communications, and remote computing services; and (i) shortage of adequate power or transportation facilities.
MISCELLANEOUS
Governing Law; Venue. This Agreement will be governed by the laws of the State of New York, without giving effect to any conflict of law provisions. Each party consents to the exclusive jurisdiction and venue of the appropriate courts in New York, New York for all disputes arising out of or relating to this Agreement.
Assignment. This Agreement is not assignable, transferable or sub-licensable by Customer except with Nayya’s prior written consent. Nayya may transfer and assign any of its rights and obligations under this Agreement without Customer consent.
Independent Contractors. The parties are independent contractors.
Enforceability. 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 this Agreement will otherwise remain in full force and effect and enforceable.
Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels. all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties.
Notices. All notices will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight.
Publicity. Nayya will have the right to use Customer’s logo in business development and marketing materials.