PayFactors Solution Terms and Conditions

 

Intellectual Property and Confidential Information

PayFactors Group, LLC (“PayFactors”) will at all times retain exclusive rights to or ownership of: (i) all compensation market data licensed, owned, compiled and maintained by PayFactors which is licensed as part of the PayFactors products or services being provided to Customer (“PayFactors Data”); and the PayFactors Data, and of all intellectual property rights related thereto, including but not limited to, trademarks, trade names, copyrights, enhancements, modifications, discoveries, designs, developments, improvements, processes, software code and programs, works of authorship, documentation, formulae, data, techniques, know-how, secrets or intellectual property rights or any interest therein and the related rights to make derivative works thereof (collectively, the “PayFactors IP”). The parties understand and agree that the PayFactors IP (including, without limitation, the PayFactors Data) is the property of PayFactors and is protected by United States and international intellectual property laws and treaties. To the extent a party or its personnel acquires any right or interest to the PayFactors IP by operation of law, such party irrevocably assigns all such right and interest exclusively to PayFactors.

The following actions are prohibited: (i) using any device, software, routine to interfere or attempt to interfere with the proper working of the HealthcareSource Market Data Solution or any other PayFactors product or service being provided to Customer; (ii) reverse engineering, decompiling or disassembling the PayFactors IP or any element thereof; (iii) copying altering, modifying, adapting, translating or creating derivative works from any PayFactors IP; (iv) remove or alter any copyright, trademark or other proprietary notices from PayFactors IP; or (v) making any PayFactors IP available for third party use.

Customer acknowledges that the PayFactors IP (including, without limitation, the PayFactors Data) constitutes sensitive data and property with intellectual property rights of substantial value to PayFactors. Customer agrees (i) not to use any PayFactors IP or other PayFactors confidential information (collectively, “Confidential Information”) for any purpose other than as expressly permitted under the Agreement, (ii) not to disclose any Confidential Information to any third party without the prior written consent of PayFactors and (iii) to take commercially reasonable security measures to prevent the unauthorized use, duplication, or distribution of the Confidential Information at least equal to that which Customer uses to protect its own proprietary information.

In addition, in consideration of PayFactors conducting normative research and/or analysis on behalf of Customer pursuant to the Agreement or creating a product with normative research results or analyses that would be available to Customer, Customer hereby grants PayFactors the right to utilize any employee data, company data, or job files, proprietary survey data or job description files supplied by Customer (“Customer Data”) for normative research so long as such data is used only in aggregated and anonymous format (i.e. so that personally identifiable information allowing the identification of individual employees is removed, the names of Customer’s clients are removed, and data is aggregated such that none of the Customer Data is reported or made available as part of such normative research), for normative research, analyses and reporting purposes only.

Accounts and Authorized Usage

Customer will receive the number of accounts to access the PayFactors Data indicated on the Order Form (“Accounts”). Each Account will have one password that will permit one User (as defined below) to access the PayFactors Data and to store one set of system preferences and data search-lists. Customer agrees to implement reasonable controls to ensure that its use does not exceed the maximum number of Accounts and Users. PayFactors IP and the related PayFactors Data may be used only by Customer’s directors, officers, employees and onsite contractors given passwords by Customer (“Users”), provided that Users will be permitted from time to time to distribute small portions of PayFactors Data to Customer’s employees as long as the amount of such data shall be insubstantial in nature and shall not substitute for the purchase of additional licenses.

Customer agrees to provide PayFactors with the names and email addresses of all Users upon PayFactors request. Customer acknowledges that PayFactors may monitor Customer’s use of the services provided by PayFactors under the Agreement including, without limitation, the services set forth under “System Support” below (collectively, the “Services”) to ensure that it remains in compliance with these Terms and Conditions. All persons using the Services (with or without Customer’s authorization) will be bound by these Terms and Conditions. Customer shall be responsible for all actions of a User with respect to any of the Services and any breach by a User of these Terms and Conditions shall constitute a breach by Customer.

System Support

During the Term of the Agreement, PayFactors will provide phone- and email-based support to Customer from 9:00 AM until 8:00 PM (EST), Monday through Friday (except for PayFactors recognized holidays). Customer will be responsible for fielding and consolidating initial support requests, verifying the existence of software issues, answering software-use questions, and managing system-administration functions. As a part of the Services, PayFactors agrees to configure the PayFactors software necessary for the Services and provide customer support for the Services. PayFactors will use commercially reasonable efforts to correct any nonconforming Services, and will re-deliver the applicable Services, which shall be Customer’s sole remedy with respect to such nonconformance(s).

Liability

IN NO EVENT WILL PAYFACTORS HAVE ANY LIABILITY IN CONTRACT, TORT, OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, REVENUE OR DATA) OR PUNITIVE DAMAGES ARISING OUT OF ANY PROVISION OF THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, THESE TERMS AND CONDITIONS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PAYFACTORS HAVE ANY LIABILITY FOR CLAIMS RELATING TO BUSINESS DECISIONS MADE BY CUSTOMER IN RELIANCE UPON ANY OF THE SERVICES PROVIDED BY PAYFACTORS. IN ADDITION, PAYFACTORS DOES NOT WARRANT THE ACCURACY, ADEQUACY, COMPLETENESS, OR TIMELINESS OF THE CURRENT PAYFACTORS SERVICES OR THE PAYFACTORS DATA.

Customer will defend, indemnify, and hold harmless PayFactors against all liabilities, damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by PayFactors that arise from any third-party claim relating to the Customer’s data.

Miscellaneous

PayFactors shall be an express third party beneficiary of the terms set forth in these Terms and Conditions. No person, other than the parties and PayFactors has any rights or remedies under these Terms and Conditions. The parties may not amend these Terms and Conditions without the prior written consent of PayFactors. The provisions of these Terms and Conditions shall survive the termination or expiration of the Agreement. Customer agrees that HealthcareSource may, at any time, assign the Service Order for the Services to PayFactors and the performance and obligations of all parties related to such Services will continue to be governed by the Service Order and these Terms and Conditions.