Schedule A – ATG Cloud Services Customer Master Agreement
This Cloud Services Schedule (this “Schedule A") is a Schedule to the General Terms of Software as a Services (SaaS) products (ClinicONE Clinic Management System, ClinicONE IoT Platform, ClinicONE AI computer visioning platform and HealthMe2 mobile platform) provisioned by Applied Technology Group Limited. This Schedule A shall co terminate with the General Terms. For purposes of the Services under this Schedule A, the General Terms and this Schedule A constitute, collectively, the “Master Agreement”; other Schedules to the General Terms, such as Microsoft Azure & Amazon Web Services Schedules, do not apply to the Services ordered under this Schedule A.
1 USE OF THE SERVICES
1.1 Applied Technology Group Limited (ATG) will make the ATG services listed in Your order (the “Services”) available to You pursuant to this Master Agreement and Your order. Except as otherwise stated in this Master Agreement or Your order, you have the non-exclusive, worldwide, limited right to use the Services during the period defined in Your order, unless earlier terminated in accordance with this Master Agreement or the order (the “Services Period”), solely for Your internal business operations. You may allow Your Users to use the Services for this purpose, and You are responsible for their compliance with this Master Agreement and Your order.
1.2 The Service Specifications describe and govern the Services. During the Services Period, we may update the Services and Service Specifications to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Content. ATG updates to the Services or Service Specifications will not materially reduce the level of performance, functionality, security or availability of the Services during the Services Period of Your order.
1.3 You may not, and may not cause or permit others to: (a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availability or performance testing of the Services; or (c) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services (the “Acceptable Use Policy”). In addition to other rights that we have in this Master Agreement and Your order, we have the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing or disabling access to material that violates the policy.
2 FEES AND PAYMENT
2.1 Once placed, Your order is non-cancelable and the sums paid nonrefundable, except as provided in this Master Agreement or Your order. Fees for Services listed in an order are exclusive of taxes and expenses.
2.2 If You exceed the quantity of Services ordered, then You promptly must purchase and pay fees for the excess quantity.
3 OWNERSHIP OF INTELLECTUAL RIGHTS AND RESTRICTIONS
3.1 You or Your licensors retain all ownership and intellectual property rights in and to Your Content. We or our licensors retain all ownership and intellectual property rights in and to the Services, derivative works thereof, and anything developed or delivered by or on behalf of us under this Master Agreement.
3.2 You may have access to Third Party Content through use of the Services. Unless otherwise stated in Your order, all ownership and intellectual property rights in and to Third Party Content and the use of such content is governed by separate third party terms between You and the third party.
3.3 You grant us the right to host, use, process, display and transmit Your Content to provide the Services pursuant to and in accordance with this Master Agreement and Your order. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content, and for obtaining all rights related to Your Content required by ATG to perform the Services.
3.4 You may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish or copy any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to Applied Technology; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Master Agreement or Your order.
Your Content residing in the Services will be considered Confidential Information subject to the terms of this section and Section 8 of the General Terms. ATG will protect the confidentiality of Your Content residing in the Services for as long as such information resides in the Services. ATG will protect the confidentiality of Your Content residing in the Services in accordance with the ATG security practices defined as part of the Service Specifications applicable to Your order.
5 PROTECTION OF YOUR CONTENT
5.2 Applied Technology’s Data Processing Agreement for ATG Cloud Services (the “Data Processing Agreement”), which is available at http://www.atg.ai/legal/privacy and incorporated herein by reference, describes how we will process Personal Data that You provide to us as part of Applied Technology’s provision of the Services, unless stated otherwise in Your order. You agree to provide any notices and obtain any consents related to Your use of, and our provision of, the Services.
5.3 ATG will protect Your Content as described in the Service Specifications, which define the administrative, physical, technical and other safeguards applied to Your Content residing in the Services and describe other aspects of system management applicable to the Services. We and our affiliates may perform certain aspects of the Services (e.g., administration, maintenance, support, disaster recovery, data processing, etc.) from locations and/or through use of subcontractors, worldwide.
5.4 You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content, or from Your use of the Services in a manner that is inconsistent with the terms of this Master Agreement. You may disclose or transfer, or instruct us to disclose or transfer, Your Content to a third party, and upon such disclosure or transfer we are no longer responsible for the security or confidentiality of such content and applications outside of Applied Technology.
5.5 Unless otherwise specified in Your order (including in the Service Specifications), You may not provide us access to health, payment card or similarly sensitive personal information that imposes specific data security obligations on the processing of such data greater than those specified in the Service Specifications. If available, You may purchase services from us (e.g., ATG Payment Card Industry Compliance Services) designed to address particular data protection requirements applicable to Your business or Your Content.
6 WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
6.1 Each party represents that it has validly entered into this Master Agreement and that it has the power and authority to do so. We warrant that during the Services Period, we will perform the Services using commercially reasonable care and skill in all material respects as described in the Service Specifications. If the Services provided to You were not performed as warranted, You must promptly provide us with a written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying us of the deficiency in the Services).
6.2 we do not warrant that the services will be performed error-free or uninterrupted, that we will correct all services errors, or that the services will meet your requirements or expectations. We are not responsible for any issues related to the performance, operation or security of the services that arise from your content or third party content or services provided by third parties.
6.3 for any breach of the services warranty, your exclusive remedy and our entire liability shall be the correction of the deficient services that caused the breach of warranty, or, if we cannot substantially correct the deficiency in a commercially reasonable manner, you may end the deficient services and we will refund to you the fees for the terminated services that you pre-paid to us for the period following the effective date of termination.
6.4 to the extent not prohibited by law, these warranties are exclusive and there are no other express or implied warranties or conditions including for software, hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.
7 LIMITATION OF LIABILITY
7.1 in no event will either party or its affiliates be liable for any indirect, consequential, incidental, special, punitive, or exemplary damages, or any loss of revenue, profits (excluding fees under this master agreement), sales, data, data use, goodwill, or reputation.
7.2 in no event shall the aggregate liability of ATG and our affiliates arising out of or related to this master agreement, whether in contract, tort, or otherwise, exceed the total amounts actually paid for the services under the order giving rise to the liability during the twelve (12) months immediately preceding the event giving rise to such liability under such order.
8 ADDITIONAL INFRINGEMENT INDEMNIFICATION TERMS
8.1 If ATG is the Provider and exercises its option under Section 5.2 of the General Terms to end the license for and require the return of Material that is a component of the Services, including ATG Software, then ATG will refund any unused, prepaid fees that You have paid for such Material. If such Material is third party technology and the terms of the third party license do not allow ATG to terminate the license, then ATG may, upon 30 days prior written notice, end the Services associated with such Material and refund to You any unused, prepaid fees for such Services.
8.2 We will not indemnify You to the extent that an infringement claim is based on Third Party Content or any Material from a third party portal or other external source that is accessible or made available to You within or by the Services (e.g., a social media post from a third party blog or forum, a third party Web page accessed via a hyperlink, marketing data from third party data providers, etc.).
8.3 The phrase “user documentation” in the first sentence of Section 5.6 of the General Terms includes the Service Specifications referenced in Your order for Services.
9 TERM AND TERMINATION
9.1 Services provided under this Master Agreement shall be provided for the Annual Services Period defined in Your order. If stated in the Service Specifications, the Services Period of certain Cloud Services will automatically be extended for an additional Services Period of the same duration unless (i) You provide ATG with written notice no later than thirty (30) days prior to the end of the applicable Annual Services Period of Your intention not to renew such Cloud Services, or (ii) ATG provides You with written notice no later than ninety (90) days prior to the end of the applicable Annual Services Period of its intention not to renew such Cloud Services.
9.2 We may suspend Your or Your Users’ access to, or use of, the Services if we believe that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) You or Your Users are accessing or using the Services to commit an illegal act; or (c) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted, we will provide You with advance notice of any such suspension. We will use reasonable efforts to re-establish the Services promptly after we determine that the issue causing the suspension has been resolved. During any suspension period, we will make Your Content (as it existed on the suspension date) available to You. Any suspension under this paragraph shall not excuse You from Your obligation to make payments under this Master Agreement.
9.3 If either of us breaches a material term of the Master Agreement as specified in Section 6.1 of the General Terms, and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If ATG terminates the order as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services under such order plus related taxes and expenses. Except for nonpayment of fees, the non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Master Agreement, You may not use those Services ordered.
9.4 For a period of no less than 60 days after the end of the Services Period of an order, we will make Your Content (as it existed at the end of the Services Period) available for retrieval by You. At the end of such 60 day period, and except as may be required by law, we will delete or otherwise render inaccessible any of Your Content that remains in the Services.
10 THIRD-PARTY CONTENT, SERVICES AND WEBSITES
10.1 The Services may enable You to link to, transmit Your Content to, or otherwise access third parties’ websites, platforms, content, products, services, and information. We do not control and are not responsible for such third parties’ websites, platforms, content, products, services, and information.
10.2 Any Third Party Content we make accessible is provided on an “as-is” and “as available” basis without any warranty of any kind. You acknowledge and agree that we are not responsible for, and have no obligation to control, monitor, or correct, Third Party Content. We disclaim all liabilities arising from or related to Third Party Content.
10.3 You acknowledge that: (i) the nature, type, quality and availability of Third Party Content may change at any time during the Services Period, and (ii) features of the Services that interoperate with third parties such as Facebook™, YouTube™ and Twitter™, etc. (each, a “Third Party Service”), depend on the continuing availability of such third parties’ respective application programming interfaces (APIs). We may need to update, change or modify the Services under this Master Agreement as a result of a change in, or unavailability of, such Third Party Content, Third Party Services or APIs. If any third party ceases to make its Third Party Content or APIs available on reasonable terms for the Services, as determined by us in our sole discretion, we may cease providing access to the affected Third Party Content or Third Party Services without any liability to You. Any changes to Third Party Content, Third Party Services or APIs, including their unavailability, during the Services Period does not affect Your obligations under this Master Agreement or the applicable order, and You will not be entitled to any refund, credit or other compensation due to any such changes.
11 SERVICE MONITORING, ANALYSES AND ATG SOFTWARE
11.1 We continuously monitor the Services to facilitate Applied Technology’s operation of the Services; to help resolve Your service requests; to detect and address threats to the functionality, security, integrity, and availability of the Services as well as any content, data, or applications in the Services; and to detect and address illegal acts or violations of the Acceptable Use Policy. ATG monitoring tools do not collect or store any of Your Content residing in the Services, except as needed for such purposes. ATG does not monitor, and does not address issues with, non-ATG software provided by You or any of Your Users that is stored in, or run on or through, the Services. Information collected by ATG monitoring tools (excluding Your Content) may also be used to assist in managing Applied Technology’s product and service portfolio, to help ATG address deficiencies in its product and service offerings, and for license management purposes.
11.2 We may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). We may make Service Analyses publicly available; however, Service Analyses will not incorporate Your Content or Confidential Information in a form that could serve to identify You or any individual, and Service Analyses do not constitute Personal Data. We retain all intellectual property rights in Service Analyses.
11.3 We may provide You with online access to download certain ATG Software for use with the Services. If we license ATG Software to You and do not specify separate terms for such software, then such ATG Software is provided as part of the Services and You have the non-exclusive, worldwide, limited right to use such ATG Software, subject to the terms of this Master Agreement and Your order, solely to facilitate Your use of the Services. You may allow Your Users to use the ATG Software for this purpose, and You are responsible for their compliance with the license terms. Your right to use ATG Software will terminate upon the earlier of our notice (by web posting or otherwise) or the end of the Services associated with the ATG Software. If ATG Software is licensed to You under separate third party terms, then Your use of such software is governed by the separate third party terms.
12 ADDITIONAL EXPORT TERMS
You acknowledge that the Services are designed with capabilities for You and Your Users to access the Services without regard to geographic location and to transfer or otherwise move Your Content between the Services and other locations such as User workstations. You are solely responsible for the authorization and management of User accounts across geographic locations, as well as export control and geographic transfer of Your Content.
13 ADDITIONAL NOTICE TERMS
13.1 Any notice required under this Master Agreement shall be provided to the other party in writing. To request a termination of Services in accordance with this Master Agreement, You must submit a service request to ATG at the address specified in Your order or the Services Specifications.
13.2 We may give notices applicable to our Services customers by means of a general notice on the ATG portal for the Services, and notices specific to You by electronic mail to Your e-mail address on record in our account information or by written communication sent by first class mail or pre-paid post to Your address on record in our account information.
14.1 We are an independent contractor, and each party agrees that no partnership, joint venture, or agency relationship exists between the parties.
14.2 Our business partners and other third parties, including any third parties with which the Services have integrations or that are retained by You to provide consulting services, implementation services or applications that interact with the Services, are independent of ATG and are not Applied Technology’s agents. We are not liable for, bound by, or responsible for any problems with the Services or Your Content arising due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as our subcontractor on an engagement ordered under this Master Agreement and, if so, then only to the same extent as we would be responsible for our resources under this Master Agreement.
14.3 Prior to entering into an order governed by this Master Agreement, You are solely responsible for determining whether the Services meet Your technical, business or regulatory requirements. ATG will cooperate with Your efforts to determine whether use of the standard Services are consistent with those requirements. Additional fees may apply to any additional work performed by ATG or changes to the Services. You remain solely responsible for Your regulatory compliance in connection with Your use of the Services.
14.4 Upon forty-five (45) days written notice and no more than once every twelve (12) months, ATG may audit Your compliance with the terms of this Master Agreement and Your order. You agree to cooperate with Applied Technology’s audit and to provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations.
14.5 It is expressly agreed that the terms of this Master Agreement and any ATG order shall supersede the terms in any purchase order, procurement internet portal, or other similar non-ATG document and no terms included in any such purchase order, portal, or other non-ATG document shall apply to the Services ordered. In the event of any inconsistencies between the terms of an order and the Master Agreement, the order shall take precedence; however, unless expressly stated otherwise in an order, the terms of the Data Processing Agreement shall take precedence over any inconsistent terms in an order. This Master Agreement and orders hereunder may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of You and of Applied Technology; however, ATG may update the Service Specifications, including by posting updated documents on Applied Technology’s websites. No third party beneficiary relationships are created by this Master Agreement. The Uniform Computer Information Transactions Act does not apply to this Agreement or to orders placed under it.
15 AGREEMENT DEFINITIONS
15.1. “ATG Software” means any software agent, application or tool that ATG makes available to You for download specifically for purposes of facilitating Your access to, operation of, and/or use with, the Services.
15.2. “Program Documentation” refers to the user manuals, help windows, readme files for the Services and any ATG Software. You may access the documentation online at http://Applied Technology.com/contracts or such other address specified by Applied Technology.
15.4. “Third Party Content” means all software, data, text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of ATG that You may access through, within, or in conjunction with Your use of, the Services. Examples of Third Party Content include data feeds from social network services, rss feeds from blog posts, ATG data marketplaces and libraries, dictionaries, and marketing data.
15.5. “Users” means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Services in accordance with this Master Agreement and Your order. For Services that are specifically designed to allow Your clients, agents, customers, suppliers or other third parties to access the Cloud Services to interact with You, such third parties will be considered “Users” subject to the terms of this Master Agreement and Your order.
15.6. “Your Content” means all software, data (including Personal Data as that term is defined in the Data Processing Agreement for ATG Cloud Services described in this Master Agreement), text, images, audio, video, photographs, non-ATG or third party applications, and other content and material, in any format, provided by You or any of Your Users that is stored in, or run on or through, the Services. Services under this Master Agreement, ATG Software, other ATG products and services, and ATG intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Your Content”
15.7. Capitalized terms used but not defined in this Schedule A have the meanings set forth in the General Terms.