Remote Backup Standard Terms and Conditions
By accepting any order or quote (“Quote”) for the purchase of the 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 Remote Backup Service 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.
For purposes of this Agreement, the following defined terms shall have the following definitions:
(a) “Customer Data” means any and all data and information targeted for remote backup from the Customer Network from time to time as part of the Services, either from the Customer Network to a network managed by Keycentrix under a Keycentrix management plan, or hosted in a Keycentrix data center.
(b) “Customer Network” means the designated servers and network-connected computers where the Customer Data is stored and remote backup is targeted.
(c) “Disaster” includes any catastrophic event including, but not limited to, major systems failure, flood, fire, earthquake, hurricane, other such natural disasters, or terrorist attack, that renders Customer’s access to the pertinent Customer Data in the Customer Network impossible to obtain and the Customer Data must be recovered or accessed by other means.
(d) “Service Fees” means the amounts charged by Keycentrix to Customer in exchange for providing the Services, calculated in the manner described on the Quote and payable in accordance with Section 2.
(e) “Services” means the service of providing HIPAA compliant remote data backup and disaster recovery services as herein contemplated.
2. Payment Terms
(a) Customer shall pay to Keycentrix the Service 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. The Service Fees will be dependent upon Customer usage and the amount of Customer Data being backed up as part of the Services. 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 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 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 Services 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 Service fees paid by Customer.
(d) Past due amounts will be subject to a service 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 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.”
(a) Subject to the terms and conditions of this Agreement, Keycentrix’s provision of the Services shall include non-real time automated remote backups of the Customer Data then residing on the Customer Network at scheduled intervals as determined by Customer (but subject to approval by Keycentrix). Customer is solely responsible for ensuring each backup process is completed successfully. The remote backups of Customer Data are limited to the periodic backup and storage of application database files and other related files as then contained on the Customer Network. No other files from Customer system will be stored or backed up by Keycentrix.
(b) Customer will be solely responsible for (i) generating and formatting all data to be backed up by Keycentrix; (ii) the complete operation and provisioning of all third-party software applications installed on the Customer Network, (iii) the Customer Network and all hardware and firmware on which the Customer Data and applications reside; and (iv) the integrity of all Customer Data targeted for the Services. All Customer Data will be backed up in its “as is, where is” condition, with all faults. Under no circumstances does Keycentrix make any representations or warranties (i) as to the quality, contents or formatting of any Customer Data, or (ii) capacity of the Customer Network.
(c) Keycentrix will not be responsible for any Customer Data, Customer applications, or any other aspects of the Customer Network that may be corrupted or not functioning correctly prior to the occurrence of the backup. Further, Customer understands and acknowledges the backups are not real time and will be performed at Customer’s scheduled intervals. Customer acknowledges that any Customer Data that exists between backups is vulnerable to loss. Keycentrix does not warrant or guarantee that the backups will be free of corruption, or that the backups can be corrected in every instance. Each backup depends on several factors outside the control of Keycentrix. Further, Keycentrix does not guarantee compatibility of the Services with any specific customer configuration of hardware or software, and Keycentrix makes no representations or warranties as to the functionality of the Customer Network.
(d) In the event of a Disaster, Keycentrix’s sole obligation will be to deliver to Customer its then most current backup of the Customer Data in the format and manner as determined by Keycentrix in its sole discretion. Customer may request for Keycentrix to provide additional disaster recovery restoration services at Keycentrix’s then current standard rates applicable to such services, subject to Keycentrix’s availability. Customer shall submit any Customer Data disaster requests by one of the following methods: (i) email to support@Keycentrix.com, (ii) calling Keycentrix’s customer support number; or (iii) logging a ticket online as directed by Keycentrix from time to time. Provided, all Customer Data disaster requests will be subject to availability of the relevant Customer Data and current backup. In the event of any loss, destruction, damage, or corruption of Customer Data resulting from any defective Services provided by Keycentrix, Keycentrix’s sole obligation will be to use commercially reasonable efforts to restore the Customer Data from the most current backup of such Customer Data. Notwithstanding anything to the contrary herein, the Services do not replace the need for Customer to maintain its own regular data backups or redundant data archives.
(e) Keycentrix will not be responsible for retaining any Customer Data after termination or expiration of the term of this Agreement. Customer Data (other than Customer Data resident on Customer Network) may be deleted promptly after this Agreement is terminated. Keycentrix will not be required to restore or deliver the Customer Data on any storage media following termination of the Services. Customer shall be solely responsible for all migration of Customer Data prior to termination of this Agreement or any other action that can lead to deletion of any Customer Data from the termination of Services.
(f) Customer assumes all risk and responsibility to backup or otherwise protect its data (including for example, computer code, personnel records, customer information and financial records) located at Customer’s facilities or on any network under Customer control, against any loss, damage or destruction suffered by Customer, notwithstanding the Services to be performed by Keycentrix.
5. Additional Customer Responsibilities
In addition to Customer’s other obligations set forth in this Agreement, Customer shall be solely responsible for the upkeep and maintenance of its internet connection, and shall hold Keycentrix harmless for any failure of the internet connection. In the event of a loss of the internet connection, Keycentrix will be unable to provide the backup portion of the Services to Customer. As soon as practicable once the internet connection is reestablished, Keycentrix will re-commence the provision of the backup Services. Further, Customer will be solely responsible for the following items: (a) ensuring that the Customer Network and environment is equipped and configured to be compatible with the specifications required by Keycentrix from time to time; (b) providing Keycentrix with reasonable access to the Customer Network and systems in order to permit Keycentrix to provide the Services in a manner that is acceptable to Keycentrix; (c) providing Keycentrix with reasonable communication channels to contact Customer’s personnel and other resources that may facilitate Keycentrix’s rendering of the Services, including all administrative rights, permissions and security passwords necessary for Keycentrix to access the Customer Data to or through the Customer Network and systems; (d) providing a high-speed internet connection, with data transmission speeds of no less than ten (10) MB per second; (e) providing Keycentrix with access to the Customer Data and other pertinent files stored on the Customer Network; (f) keeping the Customer Network and internet connection operating at all times in order to facilitate file transfers by Keycentrix; (g) maintaining the Customer Network (including all of its software and hardware systems) in current compliance with Keycentrix’s then published minimum system standards and requirements.
6. Compliance with Laws; Customer Control
Customer represents and warrants to Keycentrix that all Customer Data being backed up by Keycentrix from time to time as part of the Services complies with all applicable laws, and Customer expressly assumes the risk of same. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use which is utilized in the Services; (b) all information, instructions, and materials provided by or on behalf of Customer or any authorized user in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (d) the security and use of Customer’s and its authorized users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Network, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; and (f) protection and security of Customer’s and its authorized users’ access credentials, Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
7. Exclusive Warranty
KEYCENTRIX WARRANTS THAT KEYCENTRIX WILL PROVIDE THE SERVICES IN A WORKMANLIKE MANNNER CONSISTENT WITH INDUSTRY STANDARDS. 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 SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE SERVICES WILL OR CAN BE CORRECTED.
If it is determined that Keycentrix has breached the above warranty, then as Customer’s sole remedy, Customer may receive a credit on a dollar-for-dollar basis based upon the amount of Service Fees that have been paid by Customer during the time period when the Services did not conform to the foregoing warranties up to a maximum credit of twelve (12) months of Service Fees paid, which amount shall be applied toward future Service 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 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. 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 Services. Keycentrix will use not less than commercially reasonable efforts to maintain the confidentiality of the Customer Data.
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 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 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 SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS. THE SERVICE 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.
11. Risk Allocation and Indemnity
Customer assumes the responsibility and risk for the content of all Customer Data utilized as part of the Services. Customer will be solely responsible for scheduling the backup of all Customer Data and will otherwise use commercially reasonable efforts to protect its data against loss, cost, damage or destruction or breach of privacy, notwithstanding the Services to be performed by Keycentrix. Customer hereby agrees to 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 arising out of, as a result of, Customer’s use of the Services or breach of this Agreement, either directly or indirectly, specifically including, but not limited to, any and all claims, valid or spurious, arising from actual or alleged failure of Customer to comply with any requirements of this Agreement or any applicable Law.
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 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 Service Fees stated in this Agreement are based on Keycentrix’s expectation that Customer shall utilize and pay for such fees associated with the 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 Service 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 Service 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).
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 affects, 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 lrodriguez@Keycentrix.com 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 service 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 service manager for purposes of discussing service problems, quality issues and any other service 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 Services provided under this Agreement, information shall be transmitted over a local exchange, interexchange and Internet backbone carrier lines and through routers, switches and other devices, owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet service Keycentrixs, and others, all of which are beyond the control and jurisdiction of Keycentrix. Accordingly, 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 Services provided under this Agreement. Keycentrix further makes no warranty and assumes no liability regarding the availability, reliability, or suitability of any Internet service Keycentrix or digital subscriber line services.
20. Limitations of Actions
No actions, regardless of form or basis, arising out of transactions related to this Agreement, including the 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. Number 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, except by a writing signed by both parties. 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.
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