Professional Services Agreement
If the hyperlink location of this Professional Services Agreement (the “Agreement”) is referenced in: (a) any order form or statement of work (“SOW”) signed by the customer identified in that SOW (“Customer”) for the provision of professional services or training (“Services”) by HealthcareSource HR, Inc. or its wholly owned subsidiary Vikus Corporation (collectively, “HealthcareSource”); (b) any invoice for Services performed by HealthcareSource in which Customer has remitted payment (“Ticket Services”); or (c) the description for an item on a HealthcareSource estimate or order form signed by Customer, then the Services procured by Customer shall be subject solely to the terms and conditions of this Agreement and not the Master Terms (as defined below).
Each SOW, together with this Agreement, form the entire agreement that applies to the Services, provided that this Agreement alone forms the entire agreement that applies to Ticket Services. If any conflict exists between any of these documents, the terms of this Agreement will govern, followed by the SOW.
In addition to any Services or Ticket Services provided by HealthcareSource pursuant to this Agreement, HealthcareSource may also provide Customer with access to its HealthcareSource Software-as-a-Service applications (“SaaS Services”) if Customer has entered into a Master Services Agreement, license agreement, or similar agreement (provided that in the absence of any such agreement, a Customer provided with access to SaaS Services will be subject to the then-current version of the Terms of Service and Use located at https://www.healthcaresource.com/terms-of-use (such agreement the “Master Terms”).
1. SCOPE OF SERVICES
HealthcareSource will provide Customer, pursuant to the terms and conditions of this Agreement, such Services or Ticket Services as are described in one or more SOWs or as otherwise agreed to in writing from time to time by the parties. If any services, functions, or responsibilities not specifically described in this Agreement or any SOW are performed by HealthcareSource as part of its performance and provision of the Services or Ticket Services, they shall be deemed to be included within the scope of Services or Ticket Services, as applicable, to the same extent as if specifically described in this Agreement or any such SOW.
2. TERM AND TERMINATION
2.1. Term. This Agreement is effective on either: (a) the SOW Effective Date (as defined below); or (b) the commencement of any Ticket Services; and shall remain in effect until (x) the expiration or termination of all incorporated SOWs or (y) the completion of the Ticket Services (the “Term”). Each SOW shall commence on the date it is last signed (“Effective Date”) and shall expire upon the completion of the Services set forth in such SOW or as otherwise specified in such SOW. Once signed by both parties, a SOW shall be non-cancellable except as provided in Section 2.2(a).
(a) For Cause. A SOW may be terminated by either party if the other party commits a material breach of this Agreement with respect to such SOW, and such breach, if capable of being cured, is not cured within thirty (30) days of written notice of such breach.
(b) Mutual Agreement. Each SOW and this Agreement may be terminated upon the mutual, written agreement of the parties.
2.3. Effect of Termination. Upon expiration or termination of this Agreement or any SOW, all obligations of the parties shall cease and Customer shall no longer receive or have further access to any Services or Ticket Services subject to this Agreement or any terminated SOW, as applicable. Notwithstanding the foregoing, each party will be liable for any obligation incurred prior to the expiration or termination of this Agreement.
3. Cooperation; Change Order.
3.1 Customer shall provide access to any resources as may be reasonably required to permit HealthcareSource to perform the Services, including without limitation, access to Customer’s Confidential Information or Customer Materials (each as defined below), personnel, equipment, software, systems, and property. In the event that (a) Customer fails to comply with any requirements of this Agreement or the applicable SOW, including the cooperation described above, (b) Customer’s computing environment is unavailable or unstable for a significant period of time, or (c) any of Customer’s third party partners or providers do not fulfill any of their responsibilities (collectively, a “Customer Failure”), Customer shall pay HealthcareSource, consistent with HealthcareSource’s then current fees for similar services, for any additional work carried out by HealthcareSource as a result of such Customer Failure.
3.2. The parties may agree to modify the Services set forth in a SOW through a written change request specifically referencing this Agreement and the applicable SOW (“Change Request”). HealthcareSource will prepare the Change Request describing the proposed changes to the SOW and the applicable change in fees and expenses, if any. Change order prices will be at HealthcareSource’s then current rate. Changes Requests are not binding unless and until they are executed by both parties. Executed Change Requests will become part of and incorporated into the applicable SOW and the services described therein will become part of the Services and subject to this Agreement.
4.1 Fees and Payment. On the Effective Date, HealthcareSource will invoice Customer for the fees specified in the applicable SOW and payment is due upon receipt of invoice unless otherwise specified in the SOW. For Ticket Services or Services billed by HealthcareSource on a time and materials basis, HealthcareSource will invoice Customer monthly for Services rendered and Customer will pay HealthcareSource upon receipt of invoice. Late payments will be subject to a 2% penalty per month, or the maximum amount permitted by law, whichever is lower. Only in the event that HealthcareSource has committed a material breach of this Agreement and such breach is not cured within sixty (60) days of written notice of such breach will HealthcareSource refund to Customer pre-paid amounts for Services or Ticket Services not rendered as of the effective date of such breach.
4.2 Taxes. If HealthcareSource has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides HealthcareSource with a valid tax exemption certificate authorized by the appropriate taxing authority.
In the event the Services involve the customization or modification of any HealthcareSource IP (as defined below) or any other element of the SaaS Services, either by (a) incorporating any Customer or third party software, applications, courses, assessment questions, reports, analysis, or other deliverable items provided by Customer to HealthcareSource (“Customer Materials”) into the HealthcareSource IP or SaaS Services; or (b) Customer directing HealthcareSource to create additional documentation, modify the workflow of the SaaS Services, or perform or operate the Services or SaaS Services in a manner contrary to or otherwise inconsistent with HealthcareSource’s advice or guidance (collectively, such Services a “Customization”), Customer: (x) shall provide only such Customer Materials as are owned or licensed by Customer; and (y) acknowledges and agrees that it is solely responsible for the Customer Materials or any Customization. By way of example, a Customization may include but is not limited to, modifying job postings, customizing onboarding forms, customizing standard reports, modifying self-identification forms, assigning unique identifiers, customizing interview guides, or modifying any HealthcareSource IP.
6.1. Confidential Information. “Confidential Information,” for purposes of this Agreement, shall mean all information and know-how (whether or not patentable and whether or not copyrightable and whether labeled as ‘confidential’ or not, and if not labeled as confidential, which reasonably should be considered confidential) owned, possessed, licensed or used by one party hereto (“Owner”) that Owner discloses or has disclosed to the other party (“Recipient”) (in any medium, whether oral, written, or electronic), or to which Recipient gains or has gained access by virtue of the parties’ relationship under this Agreement, including, without limitation, any invention, product, formula, method, technique, algorithm, project, development, plan, vendor or customer information, equipment, trade secret, process, research, reports, laboratory, financial or technical data, marketing or operational information, computer program, software, software documentation, hardware design, technology, marketing or business plan, forecast, unpublished financial statement, budget, license, price, cost and personnel data and human resources information, provided, that Confidential Information shall not include information which (a) is or becomes available to the public other than as a result of disclosure by Recipient or its employees in violation of this Agreement; (b) Recipient can demonstrate by written evidence was known to Recipient prior to Recipient’s receiving the same pursuant to this Agreement and not otherwise restricted by contract or law; or (c) becomes available to Recipient on a non-confidential basis from a third person or source not restricted by contract or law regarding such information. For avoidance of doubt, HealthcareSource Confidential Information shall include all algorithms, data, HealthcareSource IP, and other content (excluding Customer Materials) delivered to Customer in the course of providing services pursuant to this Agreement.
6.2. Obligations of Confidentiality. Recipient agrees to safeguard Owner’s Confidential Information in a manner not less than that employed to protect Recipient’s own proprietary information and always with at least a commercially reasonable degree of care and to prevent the unauthorized, negligent, or inadvertent use, copying, or disclosure thereof. Recipient shall use Owner’s Confidential Information only in the course of performing this Agreement and for no other purpose. Recipient shall have the right to disclose Owner’s Confidential Information only (a) to those of its employees, representatives, agents and contractors who have a need to know the same and who have executed a confidentiality agreement in favor of Recipient or otherwise owe Recipient a duty of confidentiality, in each case at least as restrictive as the provisions in this Section 6, and (b) as required by the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient shall provide notice thereof to Owner as soon as reasonably practicable and, at Owner’s reasonable request and expense, assist Owner in obtaining a protective order or otherwise prevent public disclosure of such information and only disclose such information to the extent legally compelled. Recipient shall notify Owner as soon as reasonably practicable of any unauthorized use or disclosure of Owner’s Confidential Information by Recipient or any Recipient employees, representatives, agents or contractors.
6.3. Return of Confidential Information. Subject to Section 7.2, within fifteen (15) days following the expiration or termination of this Agreement, any attached SOW, or at any time upon written request of Owner, Recipient will (a) return to Owner all copies of Confidential Information disclosed to Recipient, and (b) delete, erase and destroy all copies of Confidential Information located on Recipient’s computer drives and/or Recipient’s retained media, and at the request of Owner will certify such deletion, erasure, and destruction of foregoing to Owner.
6.4. Disclosure of Confidential Information. Recipient recognizes that its disclosure or use of Confidential Information in violation of this Agreement would cause irreparable injury to Owner; therefore, in the event that Recipient breaches or threatens to breach the provisions of this Section 6 (Confidentiality), Owner, in addition to any other remedies it may have, will be entitled to preliminary and permanent injunctive relief without the necessity of posting a bond.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 HealthcareSource IP. HealthcareSource will at all times retain exclusive ownership of all deliverables provided in connection with the Services and Ticket Services (excluding any Customer Materials and Customer Confidential Information provided by Customer) including, without limitation, standard and modified forms, reports, software, courses, modules, assessment questions, and all other proprietary information and materials (collectively, the “HealthcareSource IP”), and of all the intellectual property rights related to such HealthcareSource IP, including but not limited to, patents, trademarks, trade names, copyrights, enhancements, modifications, variations, discoveries, designs, developments, improvements, processes, software code and programs, works of authorship, documentation, formulae, data, techniques, know-how, trade secrets or any other intellectual property rights or interest therein, any registrations or applications with respect to any of the foregoing, and the related rights to make derivative works thereof. Except for the license set forth in Section 7.2, nothing in this Agreement is intended to, nor shall it be interpreted to, grant or convey to Customer any license, interest or rights, express or implied, to the HealthcareSource IP or any other intellectual property rights of HealthcareSource.
7.2 Use. Subject to the terms of this Agreement, and for the duration of the Term, HealthcareSource hereby provides Customer with a limited, non-exclusive, non-transferable, non-sublicensable and terminable right and license to use the HealthcareSource IP solely for Customer’s internal operations in connection with its authorized use of the applicable Services and/or Ticket Services provided under this Agreement; provided that following the expiration of the Term if Customer has continuing SaaS Services related to the licensed HealthcareSource IP then the license will continue beyond the duration of this Agreement solely with respect to and for the duration of those SaaS Services provided under the Master Terms. Customer may not, during the Term or at any time thereafter, reverse engineer, decompile, disassemble, translate, copy, reproduce, display, publish, modify, customize, adapt, create derivative works of, assign, sell, lease, rent, license, sublicenses or grant a security interest in all or any portion of the HealthcareSource IP, or use the HealthcareSource IP or any portion thereof for any unlawful or unauthorized purpose. Customer shall not cooperate with any third party to facilitate the accomplishment of the foregoing actions.
7.3 Customer Confidential Information. HealthcareSource shall have the unlimited right to use any Customer Materials or Customer Confidential Information solely for the purpose of providing the Services and/or Ticket Services, or any Saas Services subject to the Master Terms.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1. Subject to the limitations contained herein, HealthcareSource warrants that (a) the Services will, in all material respects, conform to the requirements of the applicable SOW; and (b) it will perform the Services and Ticket Services in a workmanlike manner and in accordance with industry standards. HealthcareSource’s ability to successfully perform hereunder is dependent upon Customer’s provision of timely information, access to resources, and participation.
8.2. If through no fault or delay of Customer or any other Customer Failure the Services do not conform to the warranty provided in Section 8.1, Customer’s sole and exclusive remedy shall be that HealthcareSource is required to use commercially reasonable efforts to modify the Services to achieve, in all material respects, the requirements of the applicable SOW. If HealthcareSource is unable to restore the Services to achieve such requirements, Customer shall be entitled to terminate the applicable SOW and receive a refund of the fees paid under the applicable SOW proportionate with the Services not provided.
8.3. HealthcareSource shall have no obligation with respect to a warranty claim unless notified in writing of such claim within sixty (60) days following the first instance of any material functionality problem.
8.4. THE WARRANTIES STATED IN THIS SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRATNIES OFFERED BY HEALTHCARESOURCE. HEALTHCARESOURCE DOES NOT WARRANT THAT THE HEALTHCARESOURCE IP WILL OPERATE ERROR-FREE OR THAT THE HEALTHCARESOURCE IP ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF THE SERVICES RESULT IN THE NEED FOR REPLACING DATA, SOFTWARE OR HARDWARE, HEALTHCARESOURCE WILL NOT BE RESPONSIBLE FOR ANY COSTS IN CONNECTION WITH SUCH REPLACEMENTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (A) THE SERVICES, THE TICKET SERVICES AND THE HEALTHCARESOURCE IP ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND; AND (B) HEALTHCARESOURCE, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITAITON, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND INFORMATIONAL CONTENT, AND ANY AND ALL WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, HEALTHCARESOURCE MAKES NO REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, (i) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, CONTENT OR SERVICE PROVIDED BY OR THROUGH HEALTHCARESOURCE, AND (ii) AS TO ANY PARTY’S USE OR QUIET ENJOYMENT OF THE SERVICES OR TICKET SERVICES, AND HEALTHCARESOURCE SHALL NOT BE LIABLE, EITHER DIRECTLY OR INDIRECTLY OR AS AN INDEMNITOR OF CUSTOMER, AS A CONSEQUENCE OF ANY IMPAIRMENT OF SUCH USE OR QUIET ENJOYMENT. HEALTHCARESOURCE MAKES NOT WARRANTY THAT THE SERVICES OR TICKET SERVICES WILL MEET ANY PARTY’S EXPECTATIONS, REQUIREMENTS OR NEEDS.
9.1 By HealthcareSource. HealthcareSource will defend, indemnify and hold harmless Customer, its officers, directors, employees and agents, from and against any and all third party claims, actions, suits, proceedings, damages, expenses (including court costs and reasonable attorneys’ fees), recoveries and demands (collectively, “Claims”), alleging, arising or resulting from an allegation that the HealthcareSource IP infringes the legal or intellectual property rights of any third party.
9.2 By Customer. Customer will defend, indemnify and hold harmless HealthcareSource, its officers, directors, employees and agents, from and against any Claims alleging, arising or resulting from (i) any Customization services performed by HealthcareSource to the extent that such Claims do not arise from HealthcareSource’s gross negligence or willful misconduct; (ii) allegations that the Customized Materials or Customer Confidential Information or any use thereof, infringes the legal or intellectual property rights of any third party; (iii) the use or modification of the Services or Ticket Services by Customer; (iv) the gross negligence or willful misconduct of Customer; or (iv) any failure by Customer to comply with any of the terms of this Agreement or any applicable laws.
9.3. Procedure. A party claiming indemnity under this Section 9 (the “Indemnified Party”) shall give written notice to the party from whom indemnity is being sought (the “Indemnifying Party”) promptly after learning of such Claim, but in any event no less than three (3) business days. The Indemnified Party shall provide the Indemnifying Party with reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense of the claim for which indemnity is being sought. The Indemnifying Party shall have the right to assume and conduct the defense of the claim with counsel of its choice; provided the Indemnified Party may participate in and monitor such defense with counsel of its own choosing at its sole expense; provided further, that the Indemnifying Party shall seek the prior written consent (such consent to not be unreasonably withheld, delayed or conditioned) of any such Indemnified Party as to any settlement which would require any payment by such Indemnified Party, would require an admission of legal wrongdoing in any way on the part of an Indemnified Party, or would affect an amendment of this Agreement. So long as the Indemnifying Party is actively defending the claim in good faith, the Indemnified Party shall not settle any such claim without the prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume and conduct the defense of the claim as provided above, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to the claim in any manner the Indemnified Party may deem reasonably appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), and (ii) the Indemnifying Party will remain responsible to indemnify the Indemnified Party as provided in this Section 9.
10. LIMITATION OF LIABILITY
HEALTHCARESOURCE SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOST PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ATTORNEYS’ FEES), INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM (A) LOSS OF PROFITS, BUSINESS OR GOODWILL OR (B) THE PERFORMANCE OF THE SERVICES OR TICKET SERVICES. THIS DISCLAIMER APPLIES WITHOUT LIMITATION REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE OR WERE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF HEALTHCARESOURCE FOR ANY CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO HEALTHCARESOURCE UNDER THE APPLICABLE SOW GIVING RISING TO THE CLAIM.
11.1. Relationship of Parties. HealthcareSource and Customer are not and will not be considered as joint venturers, partners or agents of each other and neither will have the power to bind or obligate the other except as set forth in this Agreement; and the parties shall at all times be and remain independent contractors. Neither party will act or represent itself, directly or by implication, as an agent of the other party, except as expressly authorized herein or in writing by the other party. Neither party will create or attempt to create any obligation on behalf of or in the name of the other party.
11.2. Subcontracting. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this Agreement. HealthcareSource reserves the right to use third parties (who are under a covenant of confidentiality with HealthcareSource), including but not limited to, off-shore subcontractors to assist with the Services and Ticket Services, including without limitation any data migration, configuration, implementation, and custom code development processes.
11.3. Non-Solicitation. During the Term and for a period of twelve (12) months after the expiration or termination of this Agreement, each of the parties agrees that it will not, directly or indirectly, (a) solicit, or attempt to solicit, for employment (i) any Protected Employee of the other party; or (b) take any action to induce any Protected Employee of the other party, to leave the employ of such other party; provided, however, that the foregoing provision shall not preclude a party from making good faith generalized solicitations for employees through advertisements or search firms and hiring any persons through such solicitations where such searches are not targeted or focused on the other party’s employees. “Protected Employee,” for the purposes of this Section 11.3, means an employee of the other party with whom the employing party comes into contact by virtue of the applicable SOW, during the provision of Services or Ticket Services, or during the parties’ negotiation of the applicable SOW.
11.4. Assignment. Neither party may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior authorized, written approval of the other party; provided that each party shall be entitled to assign this Agreement without such approval to its affiliates or in connection with any merger, acquisition, sale of a party’s capital stock, or sale of all or substantially all of a party’s assets. Any prohibited assignment hereunder shall be deemed void.
11.5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Massachusetts in each case located in Boston, Massachusetts and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
11.6. Severability. If any one or more of the provisions in this Agreement or any SOW are determined invalid, illegal or unenforceable in any respect, including any provisions amended pursuant to Section 11.11 below, such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement or the SOW, and this Agreement or the SOW will be construed as if such invalid, illegal or unenforceable provisions had never been contained in this Agreement (or in the case of an amended provision, never amended); provided, however, if a court finds any provision of this Agreement may be rewritten to be valid, legal and enforceable, the parties agree that such court shall rewrite the provision.
11.7. No Waiver. None of the terms of this Agreement is deemed to be waived except by a written document drawn expressly for such purpose and executed by the party against whom enforcement of such waiver is sought. Failure or delay of either party hereto to enforce any of its rights under this Agreement is not deemed a continuing waiver by such party of any of its rights hereunder.
11.8. Survival. The following Sections will survive the expiration or termination of this Agreement: Sections 2 (Term and Termination), 6 (Confidentiality), 7 (Intellectual Property Rights), 8.4 (Disclaimer of Warranties), 9 (Indemnification), 10 (Limitation of Liability) and 11 (General).
11.9. Notices. Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be delivered in person, transmitted by telecopy or similar means of recorded electronic communication or sent by registered mail, charges prepaid, addressed as follows:
(a) if to the Customer, that address which is listed on the applicable SOW, or if for Ticket Services, the address listed on the most recent invoice sent to Customer;
(b) if to the Healthcare Source:
HealthcareSource HR, Inc.
100 Sylvan Rd, Suite 100
Woburn, MA 01801
Attention: Legal Department
11.10. Force Majeure. Non-performance by either party, except for the making of payments, shall be excused to the extent that performance is rendered impossible by acts of God, strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers or any other reason when failure to perform is beyond the control of the non-performing party.
11.11. Entire Agreement; Amendments. The section titles used in this Agreement are purely for convenience and carry with them no legal or contractual effect. HealthcareSource may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain or subdomains of https://www.healthcaresource.com where the prior version of this Agreement was posted, or by communicating these changes through any written contact method HealthcareSource has established with Customer (including, without limitation, email communication, notifications within an applicable software program, or notification within Customer’s renewal invoices). Customer’s entering into this Agreement and its continued acceptance or use of the Services or Ticket Services constitutes Customer’s acceptance of any such changes or amendments. Customer should regularly check this Agreement, as it may be amended from time to time.