PLEASE READ THESE TERMS AND CONDITIONS VERY CAREFULLY BEFORE USING INFINITRAK’S SERVICES. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE CLOSE YOUR BROWSER AND DO NOT USE THE SERVICES.
THIS SERVICE AGREEMENT DEFINES THE SERVICE LEVELS PROVIDED TO YOU BY INFINITRAK.
This Service Agreement is by and between INFINITRAK, LLC ("InfiniTrak" or “We” or “Us”), with offices at 620 Herndon Pkwy #220, Herndon, VA 20171 and the corporation, limited liability company, partnership, or other entity which is utilizing InfiniTrak’s cloud-based, relational track and trace database services and/or other services provided hereunder (“You" or “Your”). In consideration of the mutual promises, covenants and agreements hereinafter set forth, InfiniTrak and You agree as follows:
1. Service Definition. InfiniTrak will provide a relational track and trace database and file repository application services as defined by the plan or plans purchased by You from InfiniTrak as further described in the specifications (“Specifications”) set forth in the attached Schedule A and this Agreement (the “Services”). Such Services shall be provided to You and Your authorized users (“Authorized Users”) by means of the InfiniTrak’s software applications (“Service Software”).
2. Data Maintenance Services. The Services qualify as a third party information maintenance agreement under Section 582(g)(2)(A) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360eee-1(d)(1). You should keep a copy of this Agreement in your files for inspection upon request of federal or state authorities.
3. Control. Except as otherwise provided in this Agreement:
a. InfiniTrak has and will retain sole control over the operation, provision, maintenance and management of the Services and the Service Software including any (i) information, instructions or materials provided by InfiniTrak to You (“Materials”) as part of the Services and (ii) performance of maintenance, upgrades, corrections and repairs; and
b. You have and will retain sole control over the operation, maintenance and management of your systems and sole responsibility for all access and use of Services by You or any of Your Authorized Users including any (i) information or materials which is uploaded to the Service Software, (ii) results obtained from any use of the Services and (iii) conclusions, decisions or actions based on such use.
4. Service Manager. Each party shall maintain within its respective organization a service manager to serve as the primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity.
5. Changes. InfiniTrak reserves the right, in its sole discretion, to make any changes to the Services and Materials that it deems necessary or useful to comply with applicable law or otherwise to maintain or enhance the (i) quality or delivery of Services, (ii) competitive strength of or market for the Services or (iii) cost efficiency or performance of the Services.
6. Suspension or Termination of Services. InfiniTrak may, by use of any disabling code, device or any other lawful means, suspend, terminate or otherwise deny You, any Authorized User’s or any other person's access to or use of all or any part of the Services or Materials without incurring any resulting obligation or liability, if: (a) InfiniTrak receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires InfiniTrak to do so; or (b) InfiniTrak believes, in its good faith and reasonable discretion, that: (i) You or any Authorized User have (A) failed to comply with this Agreement, (B) accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized by this Agreement or (C) otherwise failed to comply with any instruction or requirement of the Specifications; (ii) You or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 6 does not limit any of InfiniTrak's other rights or remedies, whether at law, in equity or under this Agreement.
7. Your Authorization and Restrictions.
a. Authorization. Subject to and conditioned on Your payment of the Fees (as defined below) and compliance with this Agreement, InfiniTrak hereby authorizes You to access and use the Services and Materials in accordance with the Specifications during the Term (as defined below) directly and through Your Authorized Users in accordance with the Specifications.
b. Reservation of Rights. Nothing in this Agreement grants You any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, Service Software, Materials or any third party materials.
c. Authorization Limitations and Restrictions. You shall not, and shall not permit any other person to, access or use the Services or Materials except as expressly permitted by this Agreement and, in the case of third-party materials, the applicable third-party license agreement.
8. Technical Support.
a. Access. InfiniTrak will provide You through Your authorized account contacts with technical support on setting up and configuring Your account, access to the Services, and other issues related to the Services. Only Your authorized account contacts may request information, changes or technical support.
b. Response Time. InfiniTrak uses commercially reasonable efforts to maintain an industry standard response time to technical support issues. This response time will depend on the complexity of the inquiry and support request volume. We assign the highest priority to inquiries related to Service unavailability. The estimated time to respond does not apply to inquiries that require extensive research and testing.
9. Your Obligations.
a. Effect of Your Failure or Delay. InfiniTrak is not responsible or liable for any delay or failure of performance caused in whole or in part by Your delay in performing, or failure to perform, any of Your obligations under this Agreement.
b. Corrective Action and Notice. If You become aware of any actual or threatened activity prohibited by Section 7(c), then You shall and shall cause Your Authorized Users to immediately (i) take all reasonable and lawful measures within Your control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access) and (ii) notify InfiniTrak of such actual or threatened activity.
c. Your Control and Responsibility. You have and will retain sole responsibility for: (i) Your Data (as defined below) including its use; (ii) all information, instructions and materials provided by or on behalf of You or any Authorized User; (iii) Your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by You or through the use of third-party services ("Your Systems"); (iv) the security and use of Your and Authorized Users' access credentials; and (v) all access to and use of the Services and Materials directly or indirectly by or through the Your Systems or Your Authorized Users' access credentials, with or without Your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
d. Prohibited Data. You acknowledge that the Services are not designed with security and access management for processing any of the following categories of information (“Prohibited Data”): (i) Personal Information; and (ii) data that is classified as protected health information pursuant to the Health Insurance Portability and Accountability Act of 1996 codified at 421 USC §1320d, the Health Information Technology for Economic and Clinical Health Act of 2009, enacted as Title XIII of the American Recovery and Reinvestment Act of 2009, Public Law 111-5, codified at 42 USCA prec. §1790 I and/or 42 USC 83000, and any current and future regulations promulgated under either including, but not limited to, the Standards for Privacy of Individually Identifiable Health Information and the Security Standards published in 45 C.F.R. Parts 160 and 164, as amended or superseded. You shall not, and shall not permit any Authorized User or other person to, provide any Prohibited Data to, or process any Prohibited Data through, the Services, the Service Software or any InfiniTrak personnel. You are solely responsible for reviewing all Your Data and shall ensure that none of Your Data constitutes or contains any Prohibited Data.
e. Access and Security. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (ii) control the content, accuracy and use of Your Data, including the uploading or other provision of Your Data for processing by the Services.
10. Service Levels and Credits.
a. Service Levels. InfiniTrak will use commercially reasonable efforts to make the Services available at least ninety-nine and nine-tenths percent (99.9%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Service Period"), excluding any unavailability as a result of any of the Exceptions described below (the "Availability Requirement"). "Service Level Failure" means a material failure of the Services to meet the Availability Requirement. "Available" means the Services are available for access and use by You and Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement: (i) any act or omission by You or any Authorized User that does not comply with this Agreement and the Specifications; (ii) Your or any Authorized User's inability to connect to the Internet; (iii) any Force Majeure Event (as defined below); (iv) any failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by InfiniTrak; (v) Scheduled Downtime (as defined below); or (vi) disabling, suspension or termination of the Services pursuant to Section 6.
b. Service Level Failures and Remedies. In the event of any Service Level Failure, InfiniTrak shall issue a credit to You in the amount of twenty percent (20%) of the monthly Fees for the Services due for the Service Period in which the Service Level Failure occurred (each a "Service Credit"), subject to the following: InfiniTrak has no obligation to issue any Service Credit unless You: (i) report the Service Failure to InfiniTrak immediately on becoming aware of it; and (ii) request such Service Credit in writing within twenty (20) days of the Service Level Failure. Any Service Credit payable to You under this Agreement will be issued to You in the calendar month following the Service Period in which the Service Level Failure occurred. In no event will a Service Level Credit for any Service Period exceed fifty percent (50%) of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred. This Section 10(b) sets forth InfiniTrak's sole obligation and liability, and Your sole remedy, for any Service Level Failure.
c. Scheduled Downtime. InfiniTrak will use commercially reasonable efforts to: (i) schedule downtime for routine maintenance of the Services and the Service Software during non-core business hours (7:00 am to 10:00 pm Eastern Standard Time); and (ii) give You at least twelve (12) hours prior notice of all scheduled outages of the Services in excess of two (2) hours per calendar month ("Scheduled Downtime").
d. Data Backup. The Service Software is programmed to perform routine data backups as set out in InfiniTrak's backup policy in effect from time to time (the "Backup Policy"), a current copy of which is set forth on InfiniTrak's website at infinitrak.us/legal. InfiniTrak will deliver to You its then most current back-ups of Your Data as and when set forth in the Backup Policy. In the event of any loss, destruction, damage or corruption of Your Data caused by the Service Software or the Services, InfiniTrak will, as its sole obligation and liability and as Your sole remedy, use commercially reasonable efforts to restore Your Data from InfiniTrak's then most current backup of Your Data in accordance with the then-current Backup Policy.
12. Beta Products and Services.
a. Provided “As Is”. THIS SECTION 13 APPLIES ONLY TO CUSTOMERS WITH ACCOUNTS CREATED ON EXPERIMENTAL "BETA" PLANS AND PLATFORMS. ALL "BETA" SERVICES ARE PROVIDED EXCLUSIVELY ON AN "AS IS" BASIS. FOR PURPOSES OF CLARIFICATION, INFINITRAK DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND REGARDING THE “BETA” PLANS OR PLATFORMS NOR DOES IT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES REGARDING THE INTEGRITY OF DATA STORED ON ANY “BETA” SERVERS. YOU ARE STRONGLY DISCOURAGED FROM USING ACCOUNTS ON "BETA" PLANS OR PLATFORMS FOR HOSTING ANY PRODUCTION APPLICATIONS OR FOR STORING ANY SENSITIVE DATA.
b. Upgrades. InfiniTrak shall upgrade software on "beta" programs when and as InfiniTrak deems necessary in its sole discretion. InfiniTrak does not represent or warrant that any new versions of the software installed on "beta" programs will be compatible with the currently installed version or that loss of functionality or interruption of service will not occur as a result of such upgrades.
c. Termination. InfiniTrak reserves a right to terminate any "beta" program at any time by giving You thirty (30) days written notice thereof. InfiniTrak will convert the "beta" servers at the end of the thirty (30) day notice period to an InfiniTrak Services Plan selected by InfiniTrak in its sole discretion. To discontinue the account and avoid incurring increased charges under the selected InfiniTrak Service plan, You must terminate the account in accordance with Section 17.
13. Fees and Payment Terms. Schedule A sets forth a schedule of fees ("Fees") for the Services including levels of Service (each a "Service Allocation") as well as usage and data storage fees, late payment fees, excess usage fees, processing fees and rejected payment fees.
a. Fees. InfiniTrak will bill you, via credit card or electronic funds transfer, on an annual or monthly basis for all recurring and one-time Fees. You shall pay InfiniTrak all Fees in accordance with this Section 13. All payments are non-refundable except as expressly set forth in this Agreement.
b. Fee Increases. InfiniTrak may increase any Fees no more than once annually after the first Service Period of this Agreement including during the second and subsequent Service Periods and during any renewal terms, by providing written notice to You at least sixty (60) calendar days prior to the commencement of that Service Period, and Schedule A will be deemed amended accordingly.
c. Excess Use. You shall monitor and maintain Your accounts within all Service-Allocation limits and in a manner that does not disrupt the activities of other InfiniTrak customers. If Your usage exceeds the limits for Your account or may disrupt the activities of other InfiniTrak customers, then InfiniTrak may, in its sole discretion: (i) charge You for such excess usage via Your credit card, (ii) upgrade You to a plan or increase the limits on Your account to address this excess usage, and/or (iii) suspend or terminate Your account. Usage and associated charges for excess usage shall be determined based solely upon InfiniTrak’s collected usage information. Unused monthly allotments shall not accrue or carry over from any month to any other month. Upon any upgrade or increase on the limits of Your Account, You shall be responsible for the new Fees.
d. Taxes. You shall be liable for all taxes, governmental fees and assessments to be paid related to Fees or in connection with the Services, and any such amounts shall be invoiced to You. You shall also pay all taxes, fees, and assessments of any nature associated with products or services sold through the use of or receipt of the Services.
e. Late Payment. If You fail to make any payment as and when due then, in addition to all other remedies that may be available, You shall also pay InfiniTrak a late charge equal to the lesser of (i) 1.5% per month, or portion thereof, on the unpaid amount calculated daily and compounded monthly or (ii) the highest late charge permitted by applicable law. In addition, You shall reimburse InfiniTrak for all reasonable costs incurred by InfiniTrak including attorneys' fees, court costs and collection agency fees. If such failure continues for sixty (60) days following written notice thereof, then InfiniTrak may suspend performance of the Services until all past due amounts and late charges have been paid, without incurring any obligation or liability to You or any other person. After ninety (90) days of nonpayment, Your account will be disabled and Your Data will be inaccessible.
f. Billing Disputes. InfiniTrak must receive notice of billing disputes within thirty (30) days of the date Your account was charged for the Services or You shall be deemed to have accepted such charges.
14. Intellectual and Proprietary Rights.
a. Services and Materials. Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary rights to You. All right, title, and interest in and to the Services, the Service Software and Materials including, without limitation, all copyright, trade secret, trademark and patent rights associated therewith or incorporated therein are and shall remain the sole property of InfiniTrak and its vendors and licensors. You shall not reserve engineer, transfer, assign, copy, modify, reproduce or use any of product or service, hardware, software or otherwise which is provided in connection with the Services except as expressly authorized in this Agreement.
b. Your Data. As between You and InfiniTrak, You are and will remain the sole and exclusive owner of all right, title and interest in and to all data that You upload and download from use of the Services (“Data”), subject to the rights granted in Section 14(c).
c. Consent to Use Your Data. You hereby irrevocably grant all such rights and permissions in or relating to Your Data, including all intellectual property rights relating thereto to, InfiniTrak, its subcontractors and the InfiniTrak personnel: (i) as are necessary or useful to perform the Services; (ii) to use such Data in depersonalized format to monitor use and performance of the Services and the Service Software, to conduct research and development activities and to improve the Services and the Service Software; and (iii) as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
16. Term. The term of this Agreement is either for the Initial Term (as defined below) or Renewal Term (as defined below) (collectively, the “Term”).
a. Monthly Plans. For Monthly Plans (as described in Schedule A), the Initial Term is defined as the period from the date of Your initial payment or execution of this Agreement, whichever occurs earlier, through the remainder of the calendar month in which this Agreement was executed. The Renewal Term for Monthly Plans is defined as one calendar month beginning at the end of the Initial Term and each subsequent calendar month thereafter.
b. Contract Plans. For Contract Plans (as described in Schedule A), the Initial Term is defined as the period from the date of Your initial payment or execution of this Agreement, whichever occurs earlier, through end of the twelfth (12th) month thereafter. For example, a Contract Plan that begins 1/1/16 will continue until 12/31/16). The Renewal Term for Contract Plans is defined as the twelve (12) month period beginning at the end of the Initial Term and each subsequent twelve (12) month period thereafter.
c. Automatic Renewal and Agreement Update. This Agreement shall renew automatically at the end of the prior Term unless terminated in accordance with this Agreement either by You or by InfiniTrak. When a new Term begins, the then-current version of InfiniTrak's service agreement shall automatically amend and restate this Agreement, in its entirety. The then-current version of InfiniTrak service agreement can be found at http:/infinitrak.us/legal.
17. Termination By You Without Cause.
a. Mechanics. For both Monthly Plans and Contract Plans, You may terminate this Agreement by placing a termination order at any time for InfiniTrak to terminate Your account at the end of the then-current Term. To terminate, You must contact InfiniTrak’s Support Department in writing, via email (email@example.com ) or via certified mail.
b. Refunds. Any Fees paid by You shall not be refunded. Further, any Fees previously waived or discounts applied may be reinstated if You terminate this Agreement prior to the end of the Term if You do not satisfy the conditions for any such waivers or discounts.
18. Termination By InfiniTrak Without Cause. InfiniTrak may terminate this Agreement without cause by providing written or electronic mail notice of termination to Your Administrative email contact address not less than fifteen (15) calendar days prior to the effective termination date.
a. Monthly Plan. For Monthly Plans, if the effective date of termination of this Agreement occurs prior to the end of the Term, then InfiniTrak shall refund or not charge You the monthly fees for the month in which Services terminate.
b. Contract Plan. For Contract Plans, InfiniTrak shall refund or not charge You the monthly fees for the month in which Services terminate.
19. Termination For Cause.
a. By You. To terminate this Agreement for breach by InfiniTrak, You shall provide to InfiniTrak’s Legal Department in writing, via email to firstname.lastname@example.org or via certified mail, the details of InfiniTrak’s violation and allow InfiniTrak thirty (30) days to cure any such breach. If InfiniTrak does not cure such breach within such thirty (30) day period, then this Agreement shall terminate.
b. By InfiniTrak. InfiniTrak may terminate this Agreement immediately and without prior notice (termination for cause) for any or all of the following reasons:
1. Any breach of this Agreement which includes, but is not limited to, any failure to make any payment as and when due or misuse of the Services.
2. In the event of termination for cause, InfiniTrak shall not refund any paid fees. Any termination for cause will not cancel or waive any amounts owed to InfiniTrak prior to account termination.
20. Following Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
a. You shall no longer have any right to receive any Services or access any Service Software or Materials.
b. TERMINATION OF YOUR ACCOUNT WILL NOT CANCEL OR WAIVE ANY FEES OWED TO INFINITRAK PRIOR TO OR UPON TERMINATION. YOUR DATA AND ACCOUNT SETTINGS SHALL BE DELETED AND/OR MADE INACCESSIBLE TO YOU NINETY (90) DAYS AFTER TERMINATION. YOU ARE SOLELY RESPONSIBLE TO DOWNLOAD ALL DATA FROM YOUR ACCOUNT PRIOR TO TERMINATION.
c. Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) either party may retain the other party’s Confidential Information in its then-current state and solely to the extent and for so long as required by applicable law; (ii) InfiniTrak may retain Data for use in accordance with Section 14(c); and (iii) all information and materials described in this Section 20(c) will remain subject to all confidentiality, security and other applicable requirements of this Agreement.
21. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 14, Section 15, Section 20, this Section 21, Section 22, Section 23(f), Section 23(g), Section 24 and Section 25.
a. either You or a government agency or regulatory body specifically requests us to do so;
b. when performing routine backup and restore operations, virus scan and virus removal, spam and content filtering;
c. if such access, view or review is urgent and necessary to protect personal safety, perform troubleshooting, restore systems operation in the event of a server content or prevent a server failure, outage or other damage; or
d. such Data is in depersonalized format.
a. Our Warranty. We warrant that the Services will perform substantially in accordance with the relevant Specifications if used by You in accordance with such Specifications and this Agreement. We further warrant that We will perform the Services using personnel of required skill and qualifications and in a professional manner in accordance with generally recognized industry standards for similar services.
b. Your Warranty. By uploading Your Data to the Services, You agree that You and Your Authorized Users: (i) have all necessary licenses and permissions, to use and share Your Data; (ii) have all rights necessary to grant the licenses to Authorized Users; (iii) will not infringe, misappropriate or otherwise violate the intellectual property rights of any person or entity; or (iv) will not violate any privacy or other rights of any third party or any applicable law or regulation.
c. Claims. You must notify InfiniTrak within fifteen (15) days of discovery of any breach of any warranty if You want to make a warranty claim.
1. The first step will be for InfiniTrak to attempt to remedy the defect. The remedy will take the forms of eliminating the defect, providing a new release or correction package or demonstrating how to avoid the effect of the defect in a reasonable manner.
2. You must assist Us to locate any defect and its cause by providing access to relevant staff, Your Data and the platform on which it functions (including remote access) as well as a detailed description of the defect. If We fail to remedy the defect within a reasonable period of time, then the next step will be for Us to agree with You on a written plan of action, including the date by which the defect should be remedied. We will act reasonably in trying to agree on the plan with You and You must do the same. You will be entitled to seek damages if We fail to remedy the defect by the agreed date.
d. Work Not Covered By Warranties. If We have done work in response to a warranty claim but it turns out that the subject matter of the claim was not a breach of warranty, then You will have to pay Us for that work. We will also charge You for work We do to repair defects or malfunctions which are caused by modifications or enhancements carried out by someone other than Us. Our fee will be calculated in accordance with Our then-current time and materials rates. Travel, subsistence and any other reasonable expenses that We have incurred will be added at cost.
e. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 23(a), ALL SERVICES AND MATERIALS ARE PROVIDED EXCLUSIVELY ON AN "AS IS" BASIS. INFINITRAK HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, INFINITRAK MAKES NO WARRANTY THAT THE SERVICES OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY REGARDING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
f. Limitation on Liability. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF DATA OR BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST DATA OR INFORMATION OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICES REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00) OR THE AGGREGATE AMOUNT THAT YOU PAID FOR ACCESS TO THE SERVICE DURING THE THREE (3)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, WHICHEVER IS LARGER. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM). SOME STATES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF DAMAGES SO THE ABOVE EXCLUSIONS MAY NOT APPLY. Further, this Section 23 does not limit Our liability for: (i) death and personal injury caused by gross negligence; (ii) liability for any claim based on fraud; or (iii) any other liability which cannot be excluded or limited by applicable law.
g. Expiration. NEITHER YOU NOR WE MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
24. Intellectual Property and Indemnification.
1. We will defend and settle any claim made against You by any third party that the Services and Materials infringe on any current valid and enforceable U.S. patent or registered copyright owned by such third party provided that You reasonably cooperate with Us in connection with the preparation of such defense. We shall not settle against any such claim which imposes any liability on You without Your prior written consent.
2. If use or possession of the Services or Materials infringe, or in Our reasonable opinion may infringe, the intellectual property rights of any third party, then We shall at our expense either obtain the right to continue to use the Services and Materials on the terms of this Agreement or adapt or replace it to avoid the infringement. We will elect which of these options in its sole discretion. If We decide to adapt or replace the Services or Materials then We will ensure that We do not materially detract from its functionality. If We are unable to accomplish either of the options mentioned above on reasonable terms, then We will refund the Fees You have paid for the affected module of the Services. The rights of use granted by this Agreement will then come to an end to that particular Service and Materials.
b. SECTION 24(a) SETS FORTH YOUR SOLE REMEDIES AND INFINITRAK'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SERVICES AND/OR MATERIALS INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
c. Your Indemnity. You shall defend, indemnify, save, and hold InfiniTrak and its subsidiaries, affiliates, officers, employees, agents, partners, vendors and licensors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys' fees, asserted against them that may arise or result from any breach of this Agreement by You or any Authorized User, the negligence or willful misconduct of You or any Authorized User, or any services or products offered or sold by You or any Authorized User.
a. Entire Agreement. This Agreement represents the entire agreement and understanding We have concluded with You regarding the provision and use of the Services and the Materials. This Agreement completely replaces any previous agreement or understanding (both written and oral) between You and Us regarding the subject matter of this Agreement. Customized integration and other consulting services are not covered by this Agreement so they must be contracted for separately. You acknowledge that in entering into this Agreement You have not relied and do not rely on any representation, warranty, or other information (whether written or oral) other than as set out in this Agreement.
b. Amendments. Except as amended pursuant to Sections 13(b) or 16(c), no amendment to this Agreement shall be valid unless it is in writing, it clearly states that it amends this Agreement and it is signed by authorized representatives of You and Us. In particular, no contractual terms will be incorporated into this Agreement from any purchase order.
c. Waiver. A failure to exercise or a delay in exercising any right or remedy provided by this Agreement or by law shall not amount to a waiver of that right or remedy. If any effective waiver is made, however, that waiver shall not amount to a waiver in respect of any other breach.
d. Invalidity. If any term of this Agreement is or becomes invalid or unenforceable: (i) this will not affect the other terms of this Agreement which shall remain in full force and effect; and (ii) if that term would be valid and enforceable if some part of it were modified, such modification shall be effectuated to the extent necessary to make it valid or enforceable.
e. Force Majeure Event. Except for monetary obligations, this Agreement and Your obligations hereunder shall not be affected because InfiniTrak is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of any Force Majeure Event. “Force Majeure Event” is defined as any cause beyond InfiniTrak’s reasonable control or anticipation, including, without limitation, acts of war, acts of God, terrorism, earthquake, hurricanes, flood, fire or other casualty, embargo, riot, sabotage, labor shortage or dispute, governmental act, insurrections, epidemics, quarantines, inability to procure materials or transportation facilities, failure of power, restrictive governmental laws or regulations, condemnation, acts of third parties, failure of the Internet or other reason that is beyond InfiniTrak’s reasonable control.
f. Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission (the “Fax”), with confirmed answer back, or electronic mail, with confirmation of receipt, to Us or You at the respective addresses we provide to each other or to such other address as We or You may from time to time specify by notice to the other given as provided in this paragraph. Our address is InfiniTrak, LLC, 620 Herndon Pkwy #220, Suite 600, Herndon, VA 20171. A notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
g. Rights of Third Parties. This Agreement does not create any right enforceable by any person other than You or Us.
h. No Transfer of Rights. You may not transfer any of Your rights or obligations under this Agreement either directly or by operation of law.
i. Law and Jurisdiction. This Agreement shall be governed and interpreted in accordance with the law of the Commonwealth of Virginia, without regard to conflict of law provisions thereof.
j. Electronic Signatures and Acceptance. This Agreement is entered into and executed electronically. By clicking on the “Accept” button, each party warrants that it agrees to all of the terms and conditions of this Agreement, that such party is authorized to enter into this Agreement, and that this Agreement is legally binding on such party.
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INFINITRAK PRODUCT SPECIFICATIONS
InfiniTrak is a cloud-based, Service Oriented Architecture (SOA), track and trace framework used to develop solutions that determine the current and past locations of pharmaceutical products purchased and/or sold through pharmaceutical trading partners. It is designed to satisfy the dispenser compliance requirements of the Drug Supply Chain Security Act (DSCSA), §582 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360eee-1(d)(1)), as those requirements will evolve over time. The framework includes a database, file repository, and multiple web endpoints all hosted in Microsoft Azure, a relational database as a service that delivers predictable performance, scalability, business continuity, and data protection.
The software will provide workflow support in accordance with the requirements of Drug Supply Chain Security Act including: (i) trading partner licensing verification, (ii) capture, retention, review, acceptance and transfer of transaction data (TS/TI/TH) either via EDI, uploaded pdfs, or manual entry, and (iii) built in workflows for illegitimate and suspect product investigation and quarantine. Transaction data information from all trading partners is aggregated into one location supported by robust search and reporting tools.
InfiniTrak shall provide at least 99.9% Service Availability, measured on a per calendar-month basis. Service Availability is defined in Section 10(a) of this Agreement provided that subscriber’s is active, in good standing and enabled. Unavailability caused by issues beyond InfiniTrak’s reasonable control, including denial of service or similar attacks, mail bombs, DNS resolution, Domain Name expiration, Internet availability, SYN attacks, and other events or any other Force Majeure event will be excluded from Service Availability calculations.
InfiniTrak Services are hosted in Microsoft Azure and are secured facilities protected from physical attacks and from natural disasters. Such datacenters are monitored on a 7x24 basis and entrance to the datacenters is controlled and restricted to a select group of authorized personnel.
InfiniTrak’s network security system and infrastructure helps to protect our customers’ data against sophisticated attacks. All InfiniTrak Services are protected and screened by intrusion detection systems. Access to the InfiniTrak network is tightly and comprehensively controlled and strictly audited by appropriate InfiniTrak personnel. Communications between a customer’s computer and InfiniTrak’s database is encrypted and InfiniTrak applications operate in a secure operating system that minimizes vulnerabilities.
Emergency Back Ups
In a cloud computing environment, certain computer resources may at some point fail to operate – InfiniTrak has designed its infrastructure in light of that potential failure. The core cloud computing infrastructure provides redundancy and high availability at every level, from multiple Tier-1 ISP connections, redundant networking equipment, and servers. InfiniTrak's Services are built on this infrastructure with the ability to quickly add or change service capacity in response to customer load or in uncommon situation where a compute infrastructure experiences a failure. InfiniTrak monitors each of its Services critical performance metrics to track availability and performance. Finally, InfiniTrak protects its database with an automated backup system known as Point-in-Time restore. This system allows InfiniTrak to be restored to any state, down to the millisecond, in the last 14 days.
InfiniTrak shall retain subscriber data including, but not limited to, the content of the database information store, active directory, log files and backup copies. InfiniTrak shall not be responsible for retaining any data ninety (90) days after account termination. All data are subject to deletion or being made inaccessible ninety (90) days after an account is terminated. InfiniTrak shall not restore, provide on any storage media or send out any data pertaining to terminated accounts, unless specifically noted in a customized service agreement.
To ensure optimal performance and security, InfiniTrak will routinely perform maintenance on a regularly scheduled basis within its published maintenance windows. This may require specific Services to be suspended during the maintenance period. InfiniTrak schedules maintenance windows according to its policies, which can be referred to in the administrative control panel. Service unavailability due to scheduled maintenance will be excluded from uptime calculations for availability. InfiniTrak will use commercially reasonable efforts to notify subscribers in advance of any scheduled maintenance that may adversely affect Services.
Under certain circumstances InfiniTrak may need to perform emergency maintenance, such as security patch installation or hardware replacement. InfiniTrak will not be able to provide subscribers with advanced notice in case of emergency maintenance. Service unavailability due to emergency maintenance will be excluded from the uptime calculations.
Materials, Data and Software Products
Any material, data, software or products provided to InfiniTrak in connection with hosted services shall be Server Ready, meaning that they shall be in a condition and form, as determined solely by InfiniTrak, which requires no additional manipulation or verification on the part of InfiniTrak. InfiniTrak may, in its sole discretion, reject material, data, software or products that are placed, attempted to be placed, or have requested be placed on InfiniTrak’s servers. InfiniTrak shall notify the subscriber of its rejection and provide the subscriber with an opportunity to amend or modify such material, data, software or products to meet the requirements of InfiniTrak.
Any material, data, software or products placed on InfiniTrak’s servers shall be free of all malicious code including, without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact the servers.
Requests for modification to the standard configuration will be considered on a case-by-case basis. Approval of such modifications will be at InfiniTrak’s sole discretion. InfiniTrak does not guarantee any particular result from non-standard configurations nor can it be held liable in any way for Service performance changes or failures which result from non-standard configurations.
For the tasks that cannot be performed through the administrative control panel or for services that are not included in the purchased plan, InfiniTrak may perform professional services on a time and materials basis through the administrative control panel or Technical Support. The request shall include a detailed description of work and the authorized amount of time, in half hour increments, to perform the work. InfiniTrak may evaluate and revise the request (including the estimated number of hours to perform the work) and reserves the right, in its sole discretion, to decline any request. The services shall be performed at InfiniTrak’s standard published rates, provided that any emergency services that require commencement within 24 hours shall be charged at 1.5x InfiniTrak’s standard published rates. InfiniTrak will use commercially reasonable efforts to perform requested services. However, it does not guarantee any particular result from performance of services or make any representations or warranties regarding such services nor can it be held liable in any way (including for any credits) for Service performance changes or failures which result from performing tasks requested. Requests for modification to the standard configuration will be considered on a case-by-case basis.