IT Services Standard Terms and Conditions
By accepting any order or quote (“Quote”) for the purchase of any IT Services (defined herein) from KeyCentrix, LLC, a Kansas limited liability company (“KeyCentrix”), you (“Customer”) by accepting the Quote, expressly agree to be bound by these IT Services Standard Terms and Conditions (“Standard Terms”). Each Quote is subject to KeyCentrix’s acceptance and may be accepted or rejected by KeyCentrix in its sole discretion. Further, these Standard Terms and any Quote that subsequently refers to these Standard Terms are intended to and shall, collectively constitute one agreement (“Agreement”). It is understood that each Quote will specify the current charges and costs for the Services to be provided by KeyCentrix under this Agreement.
In addition to the terms defined elsewhere in this Agreement, for purposes of this Agreement the following defined terms shall have the following definitions:
(a) “Customer System” means the Customer’s computer network, network-connected servers, computers, and other devices connected to Customer’s network system.
(b) “IT Services” means the information technology or related services purchased by Customer pursuant to a Quote, and such services may include, without limitation, desktop, server, network, firewall or mobile device management services.
(c) “Products” means the Equipment or Software to be sold or provided by KeyCentrix to Customer pursuant to a Quote.
2. Payment Terms
(a) Customer shall pay to KeyCentrix the fees set forth in the Quote, and such fees shall be remitted to KeyCentrix in accordance with the payment terms set forth in the applicable Quote. In addition to the fees set forth in the Quote, KeyCentrix may invoice any additional costs and expenses reasonably incurred by KeyCentrix in the performance of the IT Services as incurred. Provided, all fees shall be subject to adjustment by KeyCentrix in its sole discretion effective upon the first day of each renewal Term (defined herein). KeyCentrix will invoice, and Customer shall also reimburse KeyCentrix for, any such additional costs and expenses reasonably incurred by KeyCentrix in the delivery of the IT Services. All payments will be due thirty (30) days from the invoice date commencing on the first calendar month following the execution of this Agreement. Payments will be remitted by Customer, upon receipt of invoice, to KeyCentrix’s address set forth herein or as otherwise directed by KeyCentrix. Provided, Customer may withhold payment of any disputed amount until the resolution of such dispute, but Customer shall nevertheless timely remit all other amounts owed under this Agreement at the time of the dispute. Payments of undisputed amounts will be deemed to be delinquent if not in KeyCentrix’s possession within thirty (30) days from the invoice date. Disputed amounts, once resolved, shall be remitted by Customer within ten (10) days.
(b) Customer shall be responsible for any applicable sales, use, value added, or other taxes payable with respect to the IT Services or Products provided pursuant to this Agreement, or arising out of or in connection with this Agreement.
(c) All sales, property, excise and other federal, state and local taxes (other than those taxes based upon KeyCentrix’s net income) will be added to the Fees paid by Customer.
(d) Past due amounts will be subject to a services charge equal to the lesser of one and one-half percent (1½%) per month or the highest interest rate permitted by law. Without limiting any other remedy available to KeyCentrix, in the event any amount owed by Customer is more than sixty (60) days past due, KeyCentrix may suspend the IT Services at its sole discretion. Further, in the event any past due amount is placed by KeyCentrix with a third party for collection and/or litigation, Customer shall be responsible for all collection costs, legal fees and court costs incurred by KeyCentrix. Customer agrees to a charge of not less than $40.00 or the highest rate allowed by law for any returned check.
(e) Customer must notify KeyCentrix within fifteen (15) days from the invoice date of any dispute related to any invoiced amount in order to contest the same. KeyCentrix and Customer will work together in good faith to resolve such dispute in a timely manner.
The initial term of this Agreement will begin on the date indicated on the Quote and continue for the period set forth on the Quote. Upon expiration of the initial term of this Agreement, this Agreement shall automatically renew for successive periods of equal to the initial term set forth on the Quote, unless written notice of the cancellation is provided by either party in writing by mail or email at least ninety (90) days prior to the last day of the then-current term. The initial term and any renewal term, if applicable, are collectively referred to in this Agreement as the “Term.”
4. IT Services and Products
(a) Subject to the terms and conditions of this Agreement, KeyCentrix will provide to Customer those (i) IT Services as specified in the applicable Quote, and (ii) other information technology related services requested by Customer from time to time which are not included in the IT Services specified on the Quote, but only to the extent that KeyCentrix agrees to provide such additional services to Customer in its sole discretion. In addition, KeyCentrix will sell to Customer certain hardware, equipment, components, or accessories (the “Equipment”), or license, sublicense, or facilitate the license from a third party to Customer of computer software (“Software”), all as specified in a Quote, or as otherwise requested by Customer from time to time, but only to the extent that KeyCentrix agrees to provide such additional Products to Customer in its sole discretion. All title to the Products will vest in Customer upon payment in full of the purchase price of such Products. Unless otherwise specified in a Quote, the Products will be shipped to Customer’s location F.O.B. shipping point. KeyCentrix reserves the right to substitute Products with other equipment, software, and/or components or materials of the same material functionality as reasonably determined by KeyCentrix. KeyCentrix may use refurbished parts in new Equipment, provided that KeyCentrix uses the same quality control procedures and warranties as with new Equipment.
(b) Customer acknowledges that the Customer System is under its own control at all times and that the IT Services will not include physical security or safety of the Customer System from casualty loss, physical intrusion, theft, vandalism, consequences arising from the failure to observe KeyCentrix or vendor-prescribed operating procedures and protocols, or abuse or neglect by Customer or its employees. Any changes in the Customer System or scope of IT Services requested by Customer, if provided, will be charged at KeyCentrix’s then current rates. KeyCentrix will not be responsible for any downtime or losses arising from or related to the Customer System.
(c) In the event Customer purchases IT Services pursuant to a Quote which includes management of all or a portion of the Customer System, KeyCentrix will provide certain remote monitoring of the Customer System, but such monitoring will be limited to the part of the Customer System to be managed pursuant to the Quote. The monitoring services will include basic troubleshooting of the managed portion of the Customer System. Customer hereby expressly grants to KeyCentrix the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Customer System for the purpose of providing the IT Services. In the event it is determined by KeyCentrix that any issues or problems with the Customer System are due to any portion of the Customer System which is not managed by KeyCentrix, KeyCentrix may charge additional fees incurred by it on a time and materials basis.
Further, with respect to managed IT Services purchased pursuant to a Quote, the following is a non-exhaustive list of items that are expressly excluded from such IT Services and will be billed to Customer at KeyCentrix’s current standard rates unless otherwise set forth in the Quote: (i) customization of third party applications, or programming of any kind; (ii) support for operating systems, applications, or hardware no longer supported by the manufacturer; (iii) data/voice wiring or cabling services of any kind; (iv) battery backup replacement; (v) equipment relocation; (vi) hardware replacement cost; (vii) cost to bring the Customer System up to the minimum requirements; (viii) cost of repairs to hardware or any supported equipment or software, or the costs to acquire parts or equipment, or shipping charges of any kind; (ix) project/integration work to increase functionality or capacity; (x) application configuration or network problems caused by line of business applications such as customer accounting, CRM, or ERP software, but reasonable attempts will be made to correct connectivity issues to such applications; and (xi) configuration element (hardware or software) or hosting service in a manner that is not customary at KeyCentrix, or that is in “end of life” or “end of support” status.
(d) Customer expressly understands and acknowledges that KeyCentrix (i) does not warrant that the Customer System will operate error free or uninterrupted; (ii) will not be responsible for any loss, cost, or damages suffered by or caused to Customer by reason of any casualty loss, external power or internet services provider’s disruptions or lost data resulting from the failure of the internal network, hardware or software systems; (iii) may, at KeyCentrix’s sole discretion, choose to render the IT Services in person, via telephone or email support or remote support; (iv) shall be acting in the capacity of independent contractor while performing the IT Services and not as an agent or employee of Customer; and (v) will have sole discretion and control in assigning personnel to perform the IT Services.
(a) Customer Responsibilities. In addition to Customer’s other obligations set forth in this Agreement, Customer shall be solely responsible for the following items: (i) providing a Customer System and environment equipped and configured to be compatible with the specifications required by KeyCentrix from time to time; (ii) providing high-speed internet connectivity, with data transmission speeds of no less than ten (10) MB per second, and all other reasonably necessary utilities and the services of third parties; (iii) providing KeyCentrix personnel and subcontractors with reasonable remote and on-site access to the Customer System and systems in order to permit KeyCentrix to provide the IT Services in a manner that is acceptable to KeyCentrix; (iv) providing KeyCentrix with reasonable communication channels to contact Customer’s personnel and other resources that may facilitate KeyCentrix’s rendering of the IT Services, including all administrative rights, permissions and security passwords necessary for KeyCentrix to access the Customer System and systems; (v) complying with all license or other agreements applicable to third-party Software, which licenses or agreements may be included with the third-party software and/or the documentation provided therewith, all of which are incorporated herein by this reference; (vi) maintaining the Customer System (including all of its software and hardware systems) in current compliance with KeyCentrix’s then published minimum system standards and requirements; (vii) be responsible for the physical security of Customer’s facilities, assets, and information and, unless specifically included as part of the IT Services, be responsible for administrative and technical security of Customer’s facilities, assets, and information; and (viii) on-site dedicated space suitable for running the Customer System or any other hardware within manufacturers’ operating conditions as well as uninterrupted electrical supply, static grounding, and heat, light, ventilation and electrical outlets suitable for Customer’s operation of the Customer System consistent with industry standards. With respect to any Software licenses which are not purchased outright by Customer but are otherwise provided by KeyCentrix pursuant to a Quote, Customer expressly acknowledges and agrees that Customer’s right to use any such Software licenses provided by KeyCentrix will terminate immediately upon the expiration or earlier termination of this Agreement.
(b) KeyCentrix Responsibilities. In the event Customer purchases IT Services pursuant to a Quote which include managed services, KeyCentrix shall provide to Customer throughout the term of this Agreement, all reasonably necessary help desk services via telephone or electronic mail as requested by Customer in connection with the IT Services, subject to the parameters and pricing set forth on the applicable Quote. Support is available 24 hours a day, 7 days a week. During the hours of 7:30am to 4:30pm CST, Monday thru Friday, support inquiries are fielded by our support center. After those hours, support inquires will be sent to a messaging system and returned. Holiday and after-hours support is intended for emergency use only. Excessive use of holiday and after-hours support for non-emergency use will result in additional charges at KeyCentrix’s then standard rates.
6. Compliance with Laws
Customer shall comply with, and shall cause its personnel to comply with, all applicable foreign and United States federal, state and local laws, licenses and regulations related to or arising out of this Agreement, including, without limitation and as applicable, all laws and regulations related to promotion of pharmaceutical products, fraud and abuse, insider trading, discrimination, confidentiality, false claims and prohibition of kickbacks. For the avoidance of doubt, Customer shall comply with (i) the Anti-Kickback provisions of the Social Security Act, 42 U.S.C. § 1320a-7b, and the relevant regulations at 42 C.F.R. Section 1001 (“Healthcare Fraud and Abuse Laws”); (ii) the False Claims Act, 31 U.S.C. § 3729-33; and (iii) the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§201, et seq. and the relevant regulations at 21 C.F.R. §202. Customer understands and agrees that KeyCentrix does not give, and is not obligated to provide, any legal or accounting advice and does not represent or warrant that use by Customer of the Software in the conduct of Customer’s business will comply with all applicable federal or state laws. Customer acknowledges that it will be relying upon its own legal counsel and accountants for advice on compliance with applicable laws and accounting requirements. It is Customer’s obligation to inform KeyCentrix of any legal requirements applicable to the Software and to assess the Software to ensure that such legal requirements are satisfied. Customer will defend, indemnify and hold harmless KeyCentrix, Inc., its affiliates, subsidiaries, employees, and authorized contractors for any losses suffered by KeyCentrix as a result of KeyCentrix relying on any information provided by Customer regarding the legality of the manner in which Customer conducts its business.
7. Exclusive Warranty
FOR ANY IT SERVICES PROVIDED BY KEYCENTRIX, KEYCENTRIX WARRANTS THAT KEYCENTRIX WILL PERFORM THE IT SERVICES IN A WORKMANLIKE MANNNER CONSISTENT WITH INDUSTRY STANDARDS. FOR ANY PRODUCTS OR SOLD, LICENSED OR OTHERWISE PROVIDED BY KEYCENTRIX, KEYCENTRIX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND BUT WILL PASS THROUGH TO CUSTOMER ANY APPLICABLE MANUFACTURER OR DEVELOPER WARRANTIES. FURTHER, KEYCENTRIX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THIRD PARTY SOFTWARE LICENSED OR OTHERWISE PROVIDED TO CUSTOMER. KEYCENTRIX EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES ALL RIGHTS, REGARDING ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. KEYCENTRIX DOES NOT WARRANT THAT THE IT SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE IT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE IT SERVICES WILL OR CAN BE CORRECTED.
If it is determined that KeyCentrix has breached the above IT Services warranty, then as Customer’s sole remedy, Customer may receive a credit on a dollar-for-dollar basis based upon the amount of Fees that have been paid by Customer during the time period when the IT Services did not conform to the foregoing warranties up to a maximum credit of twelve (12) months of Fees paid, which amount shall be applied toward future Fees during the then remaining Term that would otherwise be due to KeyCentrix, the application of such credit commencing with the month immediately following such determination and until such time as the amount of the credit is exhausted. Provided, it is understood that if the parties cannot agree whether a breach has occurred, the parties will submit the issue to arbitration and the credit shall commence with the month immediately following the arbiters ruling. THE FOREGOING WILL BE THE SOLE REMEDY OF CUSTOMER FOR BREACH OF WARRANTY.
8. Proprietary Rights and Confidentiality
(a) Customer acknowledges and agrees that all copyright, patent, trade secret, and all other intellectual property rights of every kind and nature related to the IT Services are and shall remain the exclusive property of KeyCentrix or its third-party licensors, and nothing in this Agreement should be construed as transferring any aspects of such rights to Customer or any third party. Except for any Software licenses provided by KeyCentrix to Customer, no other right or license is granted to Customer, by implication or otherwise, and all other rights are expressly reserved to KeyCentrix. Provided, it is acknowledged that all Customer data is the property of Customer or, if Customer is a “covered entity” as contemplated by applicable health care privacy Laws, such Customer data is the property of Customer or its patients and related prescribing physicians. While such information is in its possession or control, KeyCentrix shall treat the same in confidence, limit its access, restrict its use and keep it as secure as reasonably possible in compliance with applicable Laws, including with regard to personal health information (“PHI”) specifically the requirements of 45 C.F.R. Parts 160 & 164, subparts A & E. KeyCentrix shall only use or disclose such information as expressly authorized herein or in any applicable Business Associate Agreement or other contract which KeyCentrix may enter into as an incident to its business relationship with Customer.
(b) Customer and KeyCentrix agree that, except as expressly authorized in writing (including through the use of email) in advance by the other party, neither of them will, either during the existence of this Agreement or at any time thereafter, disclose the terms of this Agreement to any third party except to their respective employees, regulators, auditors, accountants, attorneys or consultants with a need to know such information. Provided, either party may disclose such information (i) to the extent required by any subpoena or order of any governmental authority; provided that the party that receives the subpoena shall promptly give the other party written notice of such requirement prior to any disclosure so that the other party may have sufficient time to seek a protective order or other appropriate relief; (ii) with regard to information other than PHI, if the disclosing party can show that it was in possession of the information prior to its disclosure to them from a source other than the other party; (iii) the receiving party lawfully received the information from a third party absent the breach of any applicable confidentiality obligation; or (iv) with regard to information other than PHI, the receiving party can show that the information was independently developed by person who did not have access to the confidential information.
9. Physical and Data Security
KeyCentrix will take or cause to be taken all commercially reasonable actions to ensure the continued security of the Customer data delivered to KeyCentrix as part of the IT Services. KeyCentrix will use not less than commercially reasonable efforts to maintain the confidentiality of the Customer Data. Notwithstanding the foregoing, in no event shall KeyCentrix be liable to Customer for any data loss or corruption regardless of the cause.
10. Limitation of Liability
EXCEPT IN THE EVENT OF KEYCENTRIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, KEYCENTRIX SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS, DISRUPTION OF IT SERVICES, AND LOST, DAMAGED OR DESTRUCTION OF DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF KEYCENTRIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE LIABILITY OF KEYCENTRIX TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID TO KEYCENTRIX BY CUSTOMER FOR IT SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR CAUSE GIVING RISE TO SUCH CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND IT SERVICES NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE FEES TO BE CHARGED HEREUNDER REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISKS AND THE EXCLUSION OF CONSEQUENTIAL AND SPECIAL DAMAGES SET FORTH IN THIS AGREEMENT.
Customer shall indemnify and hold harmless KeyCentrix and its affiliates, including their respective owners, officers, directors, and employees from any claim, suit, loss, cost, damage (including consequential damages), expense (including reasonable attorneys’ fees and expenses), or liability of any nature or kind whatsoever directly or indirectly arising out of, or resulting from, this Agreement, including without limitation, Customer’s (i) breach or failure to comply with any of its obligations or requirements under this Agreement or any applicable law, or (ii) infringement of any copyright, patent, or other intellectual property or proprietary right of a third party.
12. Default and Termination
(a) Customer will be deemed to be in default of its obligations under this Agreement if:
(1) subject to the withholding right under Section 2, Customer fails to pay any amount due under this Agreement within thirty (30) days after the same becomes due and payable or fails to timely remit repayment on three (3) or more occasions during any eighteen (18) month period; or
(2) Customer breaches Sections 5, 6, 8, 17 or 22, regardless of any purported attempt to cure;
(3) Customer commits a material breach of this Agreement and fails to remedy the breach within thirty (30) days after having been given written notice to do so; or
(4) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Customer or any affiliate of Customer under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by Customer of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Customer or the appointment of a receiver for all or substantially all of Customer’s assets or any corporate action taken by the Board of Directors of Customer in furtherance of any of the above actions.
In the event of Customer’s default under this Section 12(a), KeyCentrix may terminate this Agreement, effective upon notice.
(b) KeyCentrix will be deemed to be in default of its obligations under this Agreement if:
(1) KeyCentrix commits a material breach of this Agreement and fails to remedy the breach within thirty (30) days after having been given written notice to do so; or
(2) upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against KeyCentrix or any affiliate of KeyCentrix under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by KeyCentrix of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of KeyCentrix or the appointment of a receiver for all or substantially all of KeyCentrix’s assets or any corporate action taken by the Board of Directors of KeyCentrix in furtherance of any of the above actions;
In the event of KeyCentrix’s default under this Section 12(b), Customer may terminate this Agreement, effective upon notice.
(c) Customer acknowledges that the amounts of Fees stated in this Agreement are based on KeyCentrix’s expectation that Customer shall utilize and pay for such fees associated with the IT Services for the full length of the initial Term and any renewal term, and that it would be very difficult to calculate the damages associated with KeyCentrix’s loss of such Fees if Customer wrongly terminates this Agreement prior to the end of the Term of this Agreement. Therefore, Customer agrees to pay KeyCentrix the total amount of the average Fees (calculated for the prior 12-months or portion thereof if this Agreement terminates prior to the end of the initial Term) that would have otherwise become due during the balance of the applicable initial Term or during any renewal term in the event that Customer wrongly terminates this Agreement, or KeyCentrix terminates this Agreement for cause under Section 12(a).
(d) If KeyCentrix provides In the event that Customer requests for KeyCentrix to assist in its transition away from KeyCentrix’s IT Services, KeyCentrix will provide such assistance if (i) all fees owed to KeyCentrix have been paid in full prior to providing such transition assistance; (ii) Customer agrees to pay KeyCentrix’s then current standard rates for such additional services. For clarification, Customer understands and acknowledges that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise set forth in the Quote, KeyCentrix will have no obligation to store or maintain any Customer data in KeyCentrix’s possession or control following termination of this Agreement, and KeyCentrix shall indemnify and hold KeyCentrix harmless from KeyCentrix’s deletion of same.
13. Legal Requirements
If there is any applicable Law or any ruling, judgment, decree or interpretation by any court, agency or other governing body having jurisdiction over either party (each a “Regulatory Matter”), and the Regulatory Matter materially and adversely afffects, or is reasonably likely to affect, the performance by KeyCentrix or its receipt of compensation under this Agreement or makes this Agreement unlawful, then the parties shall immediately use their best efforts to enter into a new arrangement that complies with such Regulatory Matter and approximates as closely as possible the position of the parties under this Agreement, economically and otherwise, prior to such Regulatory Matter. If the parties are unable to reach a new agreement within a reasonable period of time (not to exceed ninety (90) days) after the occurrence of the Regulatory Matter (or after its occurrence becomes reasonably certain), either party may terminate this Agreement effective upon notice.
The relationship between KeyCentrix and Customer is that of independent contractors and that relationship shall continue as such throughout the Term. It is further agreed that nothing contained in this Agreement shall be construed to constitute either party as being a partner, joint venturer, or agent of the other.
15. Expenses of Enforcement
In the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys’ fees at trial and upon appeal, in addition to all other sums provided by law.
In the event of any dispute or controversy arising out of or related to this Agreement, including the interpretation of any provision of this Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this Agreement or by the mutual consent of the parties. Any arbitration proceeding conducted hereunder shall be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction. BEFORE INSTITUTING ARBITRATION, CUSTOMER AGREES TO PROVIDE KEYCENTRIX WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO KEYCENTRIX. IF KEYCENTRIX IS UNABLE TO RESOLVE THE CLAIM WITHIN THIRTY (30) DAYS AFTER RECEIPT OF NOTICE, THEN CUSTOMER MAY INITIATE ARBITRATION.
17. Successor Interests
KeyCentrix may assign or subcontract, in whole or in part, KeyCentrix’s performance hereunder. Otherwise, this Agreement may not be assigned absent the consent of the non-transferring party. Any such attempt by Customer to assign in violation of the foregoing restriction shall be null and void. Subject to any limitation upon assignment expressly contained herein, this Agreement will be binding upon and inure to the benefit of the successors, subcontractors, and assigns of the parties.
All notices or other non-operational communications required to be given hereunder shall be in writing and delivered either personally, or by email transmitted to Customer at the physical address or email address set forth in the Quote or transmitted to KeyCentrix at firstname.lastname@example.org or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided therein. Any notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed. Communication may also be transmitted via email provided that the transmitting party retains a record of when and to whom the communication was electronically transmitted. Customer shall designate a person as Customer’s authorized point of contact for purposes of resolving any services issue. KeyCentrix shall designate a person as KeyCentrix’s authorized point of contact and contract administrator for purposes of Customer notifying KeyCentrix of any contractual concerns, including any actual or alleged breach of this Agreement by KeyCentrix. In addition, KeyCentrix shall designate a person as KeyCentrix’s authorized point of contact and services manager for purposes of discussing services problems, quality issues and any other services concerns that Customer might have from time to time.
19. Force Majeure
Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including without limitation industrial disputes of whatever nature, power loss or fluctuations, telecommunications failure, hacker attacks, internet slowdowns, acts of God, or any other cause constituting force majeure, provided, however, that the foregoing does not excuse or delay Customer’s payment obligations hereunder. Furthermore, Customer acknowledges that, in connection with the IT Services provided under this Agreement, KeyCentrix assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with the IT Services provided under this Agreement. KeyCentrix further makes no warranty and assumes no liability regarding the availability, reliability, or suitability of any Internet services.
20. Limitations of Actions
No actions, regardless of form or basis, arising out of transactions related to this Agreement, including the IT Services performed or to be performed may be brought by either party more than one (1) year after the cause of action has first accrued except that an action for nonpayment may be brought within two (2) years after the date of last payment owed by Customer under this Agreement.
Waiver of any breach of this Agreement committed by either party will not constitute a waiver of any other or future breach. Specifically, KeyCentrix may elect to continue performance notwithstanding a breach committed by Customer but KeyCentrix’s performance will not constitute a waiver of such breach nor otherwise limit the exercise of KeyCentrix’s remedies.
Customer shall not solicit the employment of nor employ any KeyCentrix personnel during the term of this Agreement and for a period of two (2) years from the effective date of termination, cancellation, or expiration of this Agreement.
23. Governing Law
This Agreement shall be deemed to have been executed in the State of Kansas and will be governed by and construed in accordance with the laws of the State of Kansas, without reference the rules governing conflicts of law. The parties hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in Sedgwick County, Kansas.
24. Numbers and Headings
As used herein, the singular will include the plural, and the plural, the singular. All captions are intended solely for convenience and will in no way be deemed to limit or explain any of the provisions of this Agreement.
If any provision of this Agreement is held invalid, such invalidity will not affect any other provisions which can be given effect without the invalid provision.
Sections 2, 4, 7, 8, 10, 11, 13, 15, 16, 20, 22, 23, and 27 shall survive the expiration or termination of this Agreement for any reason, as well as any other provision which is intended by its context or nature to survive such expiration or termination.
Customer agrees that KeyCentrix would be irreparably harmed by Customer’s breach of its obligations hereunder, and such harm could not be compensated by money damages alone. Therefore, notwithstanding Section 16, as to matters related to a breach of Section 8, a party will be entitled to obtain injunctive and other equitable relief for the threatened or actual breach by the other party to this Agreement, without the obligation to first post a bond or other security.
The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation.
29. Entire Agreement
This Agreement (as defined above) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended by Licensee except by a writing signed by both KeyCentrix and Licensee; provided that Customer acknowledges and agrees that KeyCentrix reserves the unilateral right, at its sole discretion, to amend or modify the terms of this Agreement from time to time. In the event of a conflict between or among the terms set forth in these Standard Terms, and any Quote, or any other document made a part hereof, the documents shall control in the following order: these Standard Terms shall control unless a Quote expressly provides otherwise by reference to these Standard Terms and the contradicting statement or section of these Terms and Conditions, and in such event the Quote with the latest date shall control, and then these Standard Terms if the Quote satisfies the foregoing condition, and then any other documents.
Customer shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of KeyCentrix. This obligation will survive the cancellation or other termination of this Agreement. KeyCentrix shall have the right to issue press releases identifying Customer as a business customer.
31. HIPAA Compliance
KeyCentrix shall be considered a business associate of Customer and may only use or disclose PHI created, received, maintained, or transmitted by KeyCentrix from or on behalf of Customer pursuant to a Business Associate Agreement to be executed by the parties simultaneously with the Quote. The Software may contain functionality that allows Customer and/or its designated users to view information and data used in association with the Software through a website managed by KeyCentrix, which may include PHI. Customer agrees that Customer is solely responsible for Customer’s compliance with HIPAA and other applicable laws with respect to such use and disclosure. Without limiting the foregoing, Customer will not request KeyCentrix to use or disclose PHI in any manner that would not be permissible under the Privacy Rule or other applicable law if done by Customer, except as otherwise allowed by the Privacy Rule and this Section 31. Customer shall provide KeyCentrix with any limitation of, changes in, or revocation of its notice privacy practices, permissions by individuals, or other restrictions on use or disclosure of PHI to the extent such restrictions may affect KeyCentrix’s use thereof. Terms used but not defined in this Section 31 will have the meaning given them under the Privacy Rule or the Security Rule.
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