AngelTrack LLC / AngelTrack Software LLC
Declaration of Terms of Service
This document represents the actions ascribed and defined in the Terms of Service also styled as the ToS of AngelTrack LLC / AngelTrack Software LLC for all Users of the Software, including, but not limited to Clients/Customers and representatives of the same, more readily identified by the moniker: AngelTrack. Please read the following Terms of Service. Use of the Software constitutes acceptance of the Terms, its parameters and stipulations, whether the user has or has not read the Terms of Service as presented below.
Be Advised: This Agreement is entered into as of the date indicated (“Effective Date”) by and between AngelTrack LLC / AngelTrack Software LLC, herein further referred to as AngelTrack and/or “the Company” and/or its Customer(s), Client(s) herein further referred to as “the Customer,” with both being referred to as “the Parties,” collectively.
AngelTrack is a Missouri/Texas corporation having its principal place of business listed and registered as 15736 CR472, Tyler, Texas 75706 that provides Software as a Service (SaaS). As developed and hosted by the Company, the Software, the “Product” allows a customer to manage all aspects of an operation that provides Emergency Medical Services and/or Fire Safety and Services, whether independent of or in conjunction with one another, and whether a private and/or public entity, thru the employment and utilization of the Product provided by the Company that is in the business of making such products available for use by its customers that access such products over the Internet.
The Parties agree that AngelTrack will provide the Customer SaaS and that the Customer will pay AngelTrack fees as associated with providing the Product.
Therefore, in consideration of the mutual covenants, agreements and promises set forth below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, each intends to be legally bound as set forth by the Parties that hereby agree to the following:
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. The Capitalization of a word or the lack thereof, does not impact nor lessen the meaning of the word, its powers, or capacities. Capitalized terms not thus far nor otherwise defined in this Agreement have the meanings as described below:
“Addendum”: An addition to the completed written Agreement, a proposed change or explanation that has been the subject of negotiation after the Agreement was originally proposed by one Party and later agreed upon by both Parties. Any Addendum will be signed separately and attached to the original Agreement.
"Affiliate": Organizations, individual persons, or business concerns that are controlled by a third party or each other.
“Agreement”: Document addressing the order of transactions and Product(s) as a mutual assent executed by authorized representatives of AngelTrack and the Customer.
“Anonymized Data”: Any Customer Data devoid of identifiable information including the name(s), address(es) and/or contact information of a Customer and any of its Users and/or Customer’s clients which further defines it as a matter of consequence, neither PHI nor identifiable to or by the Customer.
“Call Volume”: The marker by which the cost point of the SaaS is established and billed to the Customer and more clearly defined as the number of “runs” or “calls” a Customer receives in a thirty (30) day period.
“Customer/Client”: Whether singular or collective, a person or business that gains access to the Software through the exchange of monetary goods for its own exclusive use and not for distribution to any other entity, and who enters into an Agreement as defined by the stipulations, guidelines and restrictions outlined herein.
“Customer Data”: Information, facts, statistics, and other content that can be analyzed or used to gain knowledge or make into an electronic form or format that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Software.
“Deliverable”: The exchange of the software itself, reports, data, information, or other product(s) between the Parties.
“Exhibit”: Document associated and presented with the ToS that does not change the parameters or the content of the same, but rather enhances or expounds on the contents itself.
“Documentation”: Any communicable material that is used to describe, explain, or instruct. In relation to the Product, explanation, instruction or description regarding attributes of the Software, including its use.
“Feedback”: Suggestion(s) or idea(s) delivered to the Company form the Customer or vice versa to improve or modify the Software or service provided by the Company, and conversely to inform or instruct the Customer in improved use of the Software.
“Increases”: An increase in the Customer’s cost of the Product due to an increase in a Customer’s call volume or an increase in the Company’s operational costs.
“Implied Consent”: Consent or agreement that is inferred from signs, actions, or facts, or by inaction or silence of an individual or collective resulting in that person or persons waiving the right to later object or appeal, and are then held to the statutes, limitations, restraints, privileges, and expectations as defined through their actions.
“Intellectual Property”: Trade secrets, copyrighted materials or subjects, patents and patent applications, proprietary information, including but not limited to, plans, improvements, activities, ideas, concepts, innovations, inventions and designs.
“Key Personnel”: Person or persons defined as an individual(s) charged with the responsibility of conducting the Customer’s company with the ability to sign, document, engage and/or conduct business for the same and more thoroughly defined as the Owner/Operator, Manager/Supervisor/Ops Manager, Captain/Lieutenant or other title of office/authority.
“Outage”: A disruption or impairment or delay as experienced by the Customer and defined as the inability to access SaaS, or access that is disrupted, impaired, or disrupted as caused or controlled the Company.
“Partner”: Person(s) or business(es) given access to the Product by the Company to promote and support a relationship between the Partner and the Company in accordance with the terms of this Agreement and which may be further supported by a Contract for the purpose of promoting the commerce of both entities. Unless agreed to or otherwise outlined and defined to the contrary, the institution and execution of the Contract does not negate or render ineffective the restrictions and powers Outlined and Granted herein by the Terms of Service. Additionally, it should be Noted and Understood that the term ‘Partner’ does not bestow, offer, or relinquish the ownership of AngelTrack, in part or in whole to any one individual or group thereof.
“Place of Business”: Defined by the USSC as the place where a business’/corporation's officers direct, control, and coordinate the company's activities.
"Product": The software’s functionality and services made available by Company through a browser to the Customer.
“Protected Health Information” aka “PHI”: as defined by HIPAA. And further defined by HIPAA Rules and the Administrative Simplification Regulations (§160.103) for individually identifiable health information. All references herein to PHI shall be construed to include electronic PHI, or ePHI; as determined and defined by HIPAA.
“Reporting Services”: In the collective, tools or features of the Software that allow a Customer to combine, generate and create a compilation of data in the Software for the Customer’s exclusive use.
“SaaS”: Software-as-a-service directly or indirectly hosted by AngelTrack for use by the Customer or the Company.
“Scheduled Downtime”: Periods of intentional interruption of the Software as instituted by AngelTrack to perform system maintenance, update information and/or otherwise correct service errors during non-peak hours. The exception to the scheduled downtime is regarding emergency or critical circumstances at which point the Customer(s) will be notified of the issue. Scheduled Downtime is further explained and delineated herein.
“Sell” “Sale”: Entering into an Agreement with a Customer to provide the Product which is SaaS via an exchange of customary goods.
“Service Level Agreement” aka “SLA”: A documented understanding between the entity providing the service, the “Company,” and the one receiving the benefits of the service, the “Customer.”
“Software”: AngelTrack’s computer program, programming or modules as specified in the Agreement or any Addendum. To avoid concern or misinterpretation, SaaS is to be understood and construed as Software.
“Supplier”: Also understood as “the Company,” and/or “the Party,” and/or AngelTrack.
“Support Services” “Customer Service” “Customer Support”: Assistance provided to the Customer or Potential Customer by AngelTrack personnel educated and proficient in the operation of the software and offering instruction and explanation for issue(s) or problem(s) as experienced by the Customer, working to correct or instruct the customer in the correction of the same.
“Term”: As the use of the Software is purchased on a month-to-month basis by the Customer, the “Term of Days” shall be considered as 30 days, without regard to the number of days in a month or a year. Exceptions to the length of the Term is on a case-by-case, Customer-by-Customer basis and the Company is not required to or restricted from offering and engaging in Agreements for future or past Contracts of an increased or lessened Term of Days.
“Terms of Service” aka “ToS”: Legal agreement(s) between a service provider and a person or entity who wants to use that service either of which must agree to and abide by the ToS as a requirement of the service and which may also include a disclaimer, especially regarding the use of a/the Product(s).
“User/s”: Any person, individual and/or group who uses the Software on behalf of one’s own self or a Customer’s behalf or who gains access to the Customer’s account via passwords, generally, but not always, attained knowingly or willingly.
“User Restrictions”: Limitations, conditions, and/or constraints, on the activity/actions and/or use by a Customer/User of the Software.
(i) For purposes of this Agreement, whenever the context requires: the singular shall include the plural, and vice versa; gender shall be understood to be neutral so that it includes the feminine, masculine, and neutral genders whether designated or not; (ii) As used in this Agreement, the words "include" and "including," and variations thereof are to be interpreted to mean "without limitation"; (iii) The headings in this Agreement are for convenience of reference only.
3. SUBSCRIPTION TO SOFTWARE
3.1. Customer Contact Information: Customer, whether current or future, is required to provide the Company with contact information for the Place of Business for the Customer, including all locations, and a listing of corresponding Key Personnel. Customer will include the physical, mailing, and email address of all locations and non-emergency phone number/s for the same. Key Personnel information includes direct business email addresses, phone number(s) and extension(s), and the personal phone number of one (1) of the listed Key Personnel; the latter of which is to be used only in the event of any emergency and not intended for “public distribution or consumption.” Personal information will be provided to the Company’s personnel on a need-to-know basis and used only in the event of an emergency or after all attempts to contact the person or persons via the Customer’s business information has failed or ceased to produce results including contact. Failure to provide or update information within ten (10) days of the ToS activation or a change of address or phone number releases Company from any responsibility of failed communication should the need arise to contact the Customer regarding information pertinent to the operation of their company and/or as it pertains to the Software and its operation.
3.2. Grant of Subscription: During the Term as set forth above and without regard to the number of days of the Term Agreement itself, upon securing said service via payment, Customer may access and use the SaaS and any of its reporting services, regarding access and volume limitations as set forth herein. All access and rights are subject to the Customer’s compliance with the Use Restrictions and other limitations contained in this Agreement.
3.3. Price Margins: The Company reserves the right to offer service to a Customer at a decreased or lower price than posted, to include zero (0), on a case-by-case basis and at the Company’s discretion. Some price margins may be impacted by Legacy Exemptions as set forth in 5.3 and 8.1.
3.4. Implied Consent: It is expected and understood that the Customer will have read and agreed to the Terms of Service, including all disclaimers and limitations of liability and access and use of the Product as outlined herein, as evidenced by the Principle(s) and/or Key Personnel of said Customer affixing their signature(s) below. Should the Customer(s) not sign the Terms of Service, whether thru neglect or willful actions, but has chosen to access and/or use the System, it is then understood that through Implied Consent, Customer accepts the ToS as presented. And therefore it is further understood that the actions of the Principle, and/or the Customer and/or the personnel of the same agree to the Terms of Service as set forth herein and waive the right to later object or appeal, being held to the statutes, limitations, restraints, privileges and expectations as defined by their actions and use of the Product as outlined and understood in the definition of the term defined herein as “Implied Consent.”
3.5. Use Restrictions: Except as provided in this Agreement or as otherwise authorized by AngelTrack, Customer has no right to, and shall not: (a) disassemble, corrupt, decompile, deconstruct, reverse engineer, print, copy or display the Software or otherwise reduce the Software to a human-perceivable or computer-intelligence form in whole or in part; (b) print, publish, release, barter, rent, lease, loan, sell, distribute or transfer the Software to another person, company or entity; (c) reproduce the Software for the use or benefit of anyone other than Customer; (d) alter, modify or create derivative works based upon the Software either in whole or as partial arrangements or providing service to a bureau, data processing center or service, rental center or service, or other services including to any third party, and/or any affiliate.
3.6. Ownership: The rights granted under the provisions of this Agreement do not constitute a sale of the Software. AngelTrack retains all right, title, and interest in and to the Software, including and without limitation all software and technology needed and used to provide the Software, all graphics, user interfaces, logos and trademarks reproduced through the Software, unless described as a limited extent set forth and enumerated elsewhere in this Agreement. This Agreement does not grant the Customer any intellectual property rights in or to the Software or any of its components, except to the limited extent that this Agreement specifically sets forth Customer’s rights to access, use, or copy the Software during the Term. Customer acknowledges that sharing the Software with outside entities whether practicing inside or outside the field of software, to acknowledged and unknown competitors to and of the Company, or individuals who hold an interest or are disenfranchised from the field of Software is disallowed and will result in immediate termination of the service at the sole discretion of the Company. Customer acknowledges that the Software and its components are protected by Copyright, Trademark and other applicable laws as associated with the country of the Customer and that of the Company.
3.7. Third-Party Software and Services: Customers of the Company are restricted and disallowed from using any Third-party Software and Service in relation to the operation and employment of AngelTrack’s software. Data via the Software is solely for Customer’s internal purposes. Customer shall not access, disclose, release, distribute, or deliver data, or any portion thereof, to any Third-party. Nor shall Customer copy, modify, or create derivative works of Company’s software or data. Customer shall not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, integrate or attempt to integrate, or make available information regarding the API of the Software. Nor will Customer attempt otherwise to circumvent the usage restrictions included in the ToS for the Software or use the Software in any manner or for any purpose that infringes or otherwise violates any proprietary right or rights of AngelTrack or that violates applicable law. See 6.2 for Third-Party Payers and 6.3 for Exceptions.
3.8. Billing Company and Clearing House Exception: An exception exists in the instance of a billing company and its acting employees engaged by the Customer to execute billing procedures in the name of the Customer via the Software. In this case and instance, the billing company and its employees are allowed access to the Customer’s generated records and files as are necessary in the completion of its duties. The billing company is encouraged to employ a Certified Biller and Coder who is current in all registrations, licensures, and certifications. Biller accepts all liability associated with not unregistered, unlicensed and uncertified personnel. And by definition, a Clearing House meets and is granted the same exception as a billing company. As both the billing company and/or the Clearing House together or separately, act as an extension of the Customer, each is/are therefore held to and by the same rules, stipulations, addendums, correlations, and requirements of the Company in respect to this ToS as it applies to the Customer and in compliance with HIPPA statutes.
3.9. Modifications: Company reserves the right, from time to time and at its sole discretion, without incurring any liability to Customer, (except for credits or refunds that Company may be required to pay as expressly set forth in these Terms of Service,) to modify the design of, appearance of, specifications for, or operation of, the Software. COMPANY AND ITS SERVICE PROVIDERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY AS A RESULT OF ANY SUCH MODIFICATION.
4. HOSTING, SCHEDULED DOWNTIME, SERVICE LEVEL AGREEMENT & SUPPORT SERVICES
4.1. Hosting of Site: AngelTrack is the host and manages the Product which is SaaS. At any given time, the responsibility for obtaining, maintaining, and securing its network devices and connections for its access of the SaaS is that of the Customer who acknowledges such devices and connections are essential to the effective performance and operation of the Software. Customer is solely responsible for the performance and security of any device it uses. AngelTrack stays apprised of State changes/updates as they develop and then updates the Product as needed or required. It is the responsibility of the Customer to stay informed of and make any changes to their system to reflect the changes of the State(s) which impact(s) them as a User. Failure on the part of the Customer to remain updated and adapt to the State’s requirements does not constitute a failure on the part of the Company nor its Software.
4.2. Scheduled Downtime: By nature, Software requires consistent updates, enhancements, and improvements to maintain an accurate and operational system. These scheduled maintenance periods are referred to as “downtime” by the industry. AngelTrack employs two (2) sets of scheduled downtime at which point the service cannot be accessed. AngelTrack schedules a limited downtime every two (2) weeks on a Sunday, between the hours of 2am and 4am CST, for the updating of the system and/or as an enhancement in the form of a modification, change, addition or new release(s) of the Software and its features or capabilities which therefore change or increase its performance, functionality and/or application. The Company further schedules and employs downtime for a more extended period once a month for a time not to exceed four (4) hours and is achieved on a standard basis. Should the Company find it necessary to schedule downtime for a period longer than stated, Notice of the Scheduled Downtime will be provided to Customers at least forty-eight (48) hours in advance of the scheduled time via email address(es) provided and updated as necessary by the Customer as required in Section 3.1. of the ToS, and/or through the Software itself. It should be noted and understood that a Scheduled Downtime, regardless of the length of the period, is not, does not, and shall not be construed as an Outage or a Performance Failure by the Company.
4.3. Uptime Commitment and Customer Recourse: AngelTrack guarantees an Uptime Commitment of 99.9% or higher. In the event of an occurrence that renders the Customer unable to access the Software due to unscheduled downtime or an Outage, Customer is to report the incident to AngelTrack’s Support Team via the listed 1-800 number provided to all Customers and as is listed on the Webpage of the Company as quickly as humanly possible. In the event of an Outage, excluding Scheduled Downtime as defined herein, that results in the service level uptime falling below 99.9% for any consistent thirty (30) day period, Customer may immediately terminate this Agreement, in which case AngelTrack will refund any monies associated with the remaining Term. THIS IS THE CUSTOMER’S ONLY RECOURSE IN THE EVENT OF AN OUTAGE AS DEFINED ABOVE.
4.4. Support Services: AngelTrack provides Customer Support Services to its Customers. A Customer Support Representative who shall be an employee of the Company and located within the continental United States shall provide such Support. Support will be made available and deliverable to the Customer via several methods and avenues on a 24 hour, 7 days a week, 365 days a year basis. The Support may be achieved via several methods which may include but are not limited to: Contact and Instruction via the website at www.angeltrack.com, Training Videos and Documents, one-on-one phone conversations with AngelTrack personnel, audio/visual conferences, and when required and/or necessary, in-person instruction. The Company reserves the right to charge reasonable traveling and/or training fees for a destination lying over 100 miles from the main office to the Customer in the event a live, in-person visit is necessary through no fault of the Company itself.
5. CALL VOLUME/LEVEL, COST OF SERVICE/SOFTWARE, INCREASES/ADJUSTMENTS
5.1. Call Volume/Level: The Company establishes and accesses its fee schedule accordingly as a “Volume-Based Rate.” As the level of call volume will vary from Customer to Customer, the Company will initially set the Level of Service for a Customer based on the Customer’s own records.
5.2. Cost of Service/Software: The Cost or Fee Schedule associated with each Level of Service is provided to the Customer prior to Onboarding and is posted on the Company’s Website. Equally, fees are available for viewing by the General Public. At any time, now and in the future, AngelTrack reserves the right to remove public posting of prices from public domains, agreeing to supply the intended Customer with fee ranges prior to Onboarding.
5.3. Increases: An increase in the Customer’s cost of the Product may occur due to an increase in a Customer’s Call Volume that exceeds the established billed level and/or an Across the Board due to an increase in Company’s Operational Costs. (i) Call Volume: The Company will periodically monitor the Call Volume of its Customers which can result in an adjustment to a Customer’s rate. A Customer who consistently operates for a period of three months (90 days) or more than the currently billed level, will be raised to the next subsequent Call Volume Level. The increase will be billed on the next completion of the service term and will be due and payable on the same date of each subsequent month as historically established. The Company may, at its discretion, contact a Customer as a courtesy to inform the Customer of the increase. Any discussion between the Customer and the Company that results in an adjustment to the billing amount is at the discretion of the Company to entertain or enact and should be considered an individualized, one-time (1-time) independent event that does not transfer to nor impact the position of any other Customer. AngelTrack reserves the right to change, alter or stop the practice of posting Call Volume Levels and their pricing at any time and without notice. (ii) Across the Board: An increase in the Company’s Operational Costs can result in an “Across the Board” increase given without prejudice to all AngelTrack Customers. These fees are subject to occur at any time, for any reason, and at the Company’s sole discretion, but not to exceed twice within a given year and not with less than a five (5) month separation between the two (2) provided that forty-five (45) days’ advanced notice via email and/or the Software is given to any Customer who will be affected by the fee change. Company further reserves the right to invoke Legacy Exemptions regarding Price Increases at its discretion.
5.4. Adjustments: Any adjustment to fees or call volume level is at the sole and separate discretion of the Company and on a case-by-case basis. Should a Customer’s Call Volume decrease and the Customer consistently operates for a period of four (4) months or more below the currently billed level, the Customer may request a review of their records and an adjustment to the next lower level. The request is to be sent via email to the CEO of the Company for review. AngelTrack reserves the right to confirm or deny the Call Volume Level adjustment request. If the request is confirmed, the Adjustment will be made at the next billable thirty (30) day term. If denied, the Customer’s billing rate will continue at the level prior to the request. The Customer may request an appeal sixty (60) days after the initial request.
5.5 Call Volume Range Level: AngelTrack may adjust the call volume range or base level to reflect an increase, a decrease or may create a new call volume range associated with any and all service levels without notice.
6. PAYMENT/THIRD-PARTY PAYER/BILLING COMPANIES/CLEARING HOUSES
6.1. Payment: Customer shall pay all fees for service based on the Call Volume Level assessed to their business. As AngelTrack operates on a thirty (30) day billing cycle, to prevent interruption of service, the Customer should pay the bill prior to the last day of service. Customer should pay via the electronic source provided by the Company. The visible warning of impending Server License expiration given within the Product shall suffice as adequate notice for the Payment Due Date. Failure to render payment despite the warning and upon the expiration of the Server License can and may result in the Customer’s Server being deactivated and the data within destroyed. It is the Customer’s responsibility to pay the account either on or before the payment due date to secure the Software and Server as well as the data stored therein.
6.2. Third-Party Payers: AngelTrack does not recognize Third-party payers nor does this Agreement constitute a relationship of Agreement between any entity or business acting as a Third-party payer on the behalf of the Company’s Customer. Customer is strictly forbidden from giving any Third-Party payer access to the Software or its functions for any reason and will be held liable for the actions of any Third-party with whom the Customer contracts, negotiates, or engages in business, save and except Billing companies and/or Clearing Houses.
6.3 Billing Companies and Clearing House Exceptions: For purposes of this Agreement, a Third-Party billing agency and/or Clearing House retained by or used by the Customer is not considered a Third-Party Payer. Direct payment to the Company by the Biller for the Customer’s Service is disallowed. Any arrangement for reimbursement of a Customer’s payment by the Billing Company to the Customer that does not directly involve the Company, does not meet the definition of a Third-Party Payer and therefore is not disallowed.
7. FEES, SALES TAX, EXEMPTIONS/REVOCATIONS
7.1. Fees: The Fees imposed by the Company are exclusive of all taxes and credit card processing fees, if applicable. Company reserves the right, now and in the future to “pass-on” credit card fees in those states that allow the practice pursuant to their statutes.
7.2. Sales Tax: As of January 2023, sales tax will be charged to any qualifying Customer pursuant to the IRS/State regulations. It is the responsibility of the Customer to be aware of the taxes of their given locale. These tax fees are in addition to the monthly charge for the service, and Company has no control over the amounts, but by law, is required to impose and collect such fees. Sales tax will be imposed and collected coinciding with the Customer’s monthly bill. Customer is responsible for all taxes assessed to their business, including but not limited to: Federal, state, or local taxes, sales, use, duty, customs, withholding, property, and value-added, or any other tax assessment save and except for income tax assessed on AngelTrack itself.
7.3. Tax Exempt Customers: Customers who qualify as a tax-exempt business are required to present a tax exemption certificate to the Company prior to beginning service. It is assumed all new and current Customers are not a tax-exempt business unless the Company has been provided documentation to the contrary. If a Customer changes status from non-tax exempt to exempt, then in that instance, Customer is required to provide the Company with a copy of the certificate within ten (10) days of the change or the status will not be recognized. In the event a Customer’ tax-exempt status is revoked, the Company must be notified within ten (10) days of the revocation. To facilitate correct billing, Customer is responsible for notifying Company of any change in status within the time limit stated herein and should that not occur, the status will remain the same until the next billing cycle. Any penalties accessed by a taxing or governing authority are the sole responsibility of the Customer and ANGELTRACK LLC/ANGELTRACK SOFTWARE LLC, SHALL HAVE NO LIABILITY OR RESPONSIBILITY OF ANY LIABILITY IN THE SITUATION.
8. TERM & CANCELLATION DURING COOLING OFF PERIOD
8.1. Term: All Product activations shall have a term of at least thirty (30) days with the number of months a Customer may engage with Company’s services being limitless. AngelTrack does not currently employ contracts with its Customers but reserves the right to institute the practice on a Company-wide or individual basis. In the event the Company chooses to institute contracts as a common practice, Customers will be notified sixty (60) days in advance of the institution with the opportunity for Legacy status. Legacy status will be instituted at the discretion of the Company until an agreed date between the Company and the Customer not to exceed 1 year from the date of the instituted practice.
8.2. Cancellation-Cooling Off Period: Set forth by and in compliance with the Federal Trade Commission (FTC), AngelTrack LLC honors the “Cooling Off” rule that allows the Customer up to three (3) days to cancel Sale of Services and Terms of this Agreement. To cancel a sale under the Cooling Off Period rule, the potential Customer must contact the AngelTrack Support Line and provide the information necessary to the AngelTrack personnel who is supporting the Customer. Additionally, an email should be sent to the office of the CEO before the end of the three (3) day period to be entitled to a refund from the Company.
8.3. Sale of Service Definition: For the purpose of this Agreement, a “Sale of Services” shall take place after the first payment is received for the first thirty (30) day term, but prior to the Customer employing the SaaS to create a record of information, dispatch and/or file. If the Customer renders the first payment for the first thirty (30) day term AND employs the Service/Software to create a record of information, dispatch and/or file prior to the end of day of the third (3rd) day of the Cooling Off period, it is UNDERSTOOD that the Customer willingly forfeits the Cooling Off period, accepts the Terms of Service and its associated concords, and no refund of the payment will be awarded. However, Company may, at its discretion, allow a refund of payment that exceeds the three (3) day Cooling Off Period, but in doing so makes no promises, addendums or practices that might be construed as SOP to and for any other Customer now or in the future, save and except the one individual Customer the Company has selected to refund.
8.4 Reserved Right to Terminate: Company has the right to immediately suspend and terminate the Customer's Server Instance WITHOUT a Cooldown Period if there are any claims or any actions are brought against Company by Customer, and/or its affiliates or if any use of the Product is determined to be causing or has caused harm to the Company, the Product, or others; if the Company has not been paid for the Product in the agreed upon established manner; or if Company is prohibited or enjoined by law or legal action from providing the Product. The Company, ANGELTRACK LLC/ANGELTRACK SOFTWARE LLC, SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY SUCH SUSPENSION OR TERMINATION, subject to any refunds owed to the Customer and/or required as set forth in these Terms of Service.
9. SECURITY & TERMINATION
9.1. Security & Unauthorized Use: Customer understands that all communications, transmissions, and submissions to and from the Software are transmitted through networks, equipment and facilities that are not owned or controlled by the Company and therefore neither it nor its service providers are responsible for communications, transmissions, and submissions that may be accessed or intercepted by unauthorized parties. The Company employs advanced security measures it considers reasonably appropriate for the purposes of maintaining the security of only its own facilities used to provide the Software. Provided that Company takes such measures, COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY COMMUNICATIONS, TRANSMISSIONS, OR SUBMISSIONS WHICH ARE ALTERED, INTERCEPTED, ACCESSED OR STORED WITHOUT AUTHORIZATION OR ANY OTHER BREACHES OF SECURITY. Customer shall notify Company immediately of any unauthorized use of the Software, whether by a known or unknown individual, entity or source or Product; loss or theft of any username or password; or any other security failure of which Customer is aware. Customer is encouraged to employ the advanced security measures created by AngelTrack and available to the Customer with its Service, together with its own protective measures to help secure their own data.
9.2. Voluntary Termination & Cancellation of Termination: Customer reserves the right to a Voluntary Termination of this Agreement, without regard to reason, save a Termination initiated by AngelTrack for misuse, non-payment and/or breach of the ToS. Customer cannot terminate “in piece, but in whole,” and will immediately cease use of the Software. If the Customer continues to use or access the Software after the end of this Agreement or the intended Termination date, the Customer account will be considered “viable,” the Termination canceled, and the Customer will be held to the stipulations and constraints of the ToS including the payment of the associated fees for Service as set forth in 3.4 “Implied Consent.” Termination of this Agreement under this covenant is without prejudice to any other right or remedy and shall not release a Party from any liability as set forth elsewhere in the Agreement.
9.3. Delivery of Data: At the Termination or Expiration of this Agreement, Company will allow the Customer thirty (30) days to retrieve its Data from the Company’s Server and files. Request for an extension must be received ten (10) days prior to the commencement of the thirty (30) day period and extension will be at the discretion of the of the Company. Customer acknowledges that AngelTrack has no obligation to retain Customer Data more than 60 days after expiration or termination of this Agreement. Data required to be archived by Federal, State, County and/or City laws stand as exceptions, but are for the use and purpose of governmental entities and/or law enforcement entities and not the Company.
10. COMPANY MATERIAL, NO FAULT & AT-FAULT BREACHES
10.1. Company Material Breach: If AngelTrack experiences a material breach, then and in that instance the Customer holds the option to terminate this Agreement. Any refund of monies due will originate on a pro-rated basis equal to the date that the Customer ceased use of the Software and the number of days left of the monthly subscription. THE REFUND OF MONIES AS STATED AND IN ACCORDANCE WITH THE STIPULATIONS HEREIN IS THE ONLY REMEDY AVAILABLE TO THE CUSTOMER IN THE EVENT OF A COMPANY MATERIAL BREACH.
10.2. No-Fault Breach: In the event of an uncured material breach by either of the Parties through no fault of their own, the Parties may concurrently, or individually agree to terminate this Agreement by providing proof of breach and written notice to the same. In the event of said breach, the breaching party shall have thirty (30) days from receipt of Intent to Terminate to cure such breach to the reasonable satisfaction of the non-breaching Party. If the non-breaching Party is not satisfied, the remedy through Termination will commence, requiring that the stipulations set forth herein be met. This is the sole remedy available to the Customer in the event of a No-Fault Breach.
10.3. Breach of Product Use Terms: In the event of a breach of the Product Use Terms, (ToS) or any unauthorized access or use of the Product, or any failure to pay, Customer's Server Instance shall terminate immediately and WITHOUT a Cooldown Period and all Customer Data and all backups thereof shall be permanently destroyed thirty (30) days after notice of such breach, access, or use, unless and at the discretion of the Company, Customer has cured the breach, or unauthorized access or use, within such thirty (30) day period.
10.4. Willful/Intentional Breach: In the event of a breach due to willfulness and/or intent on the part of the Customer, Service will be immediately terminated, and the Customer will be given Notice of a fifteen (15) consecutive day retrieval limit for its data beginning on the date of receipt of the Notice and as designated by the Company. Willfulness and/or intent on the part of the Customer includes, but is not limited to: Intentional misuse of the product, release of information to any outside entity, company, person or persons not a party to this ToS, granting of access or providing access to the Server or Servers, release and/or distribution of information and/or Documentation considered sensitive to the operation and security of the Company, Customer or other non-related Customers of the Company, breach of any or all parts of the ToS, including stipulations as set forth by the Non-Disclosure of the Agreement.
11. DATA BACKUP & DATA RETRIEVAL DUE TO COMPANY CLOSURE:
11.1. Back-up of Data: Provided that the Company has taken reasonable precautions to back-up the customer data, Company shall have NO LIABILITY OR RESPONSIBILITY FOR ANY LOSS OF DATA OR INFORMATION. If Company fails to take such precautions, Company’s total aggregate liability for loss of data shall not exceed the average annual amount paid by the Customer for storage of Customer’s data. Further, (i) a weekly backup of the Customer’s Data shall constitute reasonable precautions. (ii) Customer acknowledges and agrees that the data export facilities within the Product, and described within the Product's online documentation, are fully sufficient for the task of downloading and archiving all Customer Data from the Product to the Customer's private custody.
11.2. Company Closure: Company reserves the right to suspend or terminate the availability of the Software. Without limiting the foregoing, the Company shall have no obligation to continue the availability of the Product. Should the Company take measures to close the business and no longer provide SaaS to the collective, then and in that instance, the Company must provide the Customer, when feasible, ninety (90) days’ notice of intent to discontinue business. Further, Company must allow the Customer access to its data for retrieval and transfer to another software company for a period not to exceed 45 days without express permission from the Company. COMPANY AND ITS SERVICE PROVIDERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY AS A RESULT OF ANY SUSPENSION, OR TERMINATION.
12. CUSTOMER RESPONSIBILITIES & DUTIES
12.1. Customer is responsible for providing and accurately maintaining all contact information as set forth in 3.1 to the Company.
12.2. Customer is responsible for pre-training via the AngelTrack Training Portal and Videos, all personnel who will be using the Software, prior to the standard Onboarding process.
12.3. Customer is responsible for notifying the Company of any concerns, problems, or issues it or its personnel are experiencing regarding the Software, its use or employment.
12.4. Customer is responsible for payment of services to the Company as set forth by this Agreement.
12.5. Customer is responsible for maintaining the privacy and confidentiality of the Product and Services belonging to the Company, safeguarding it as though it were the property of the Customer as set forth by this Agreement.
12.6. Customer is responsible for notifying the Company of any breach of service, whether proven or suspected, verified, or unverified, intentional, or unintentional with the same degree of care it uses to protect its own confidential information of a similar nature and importance. Customer shall instruct its personnel to thereby employ reasonable care and give notice to the Company of any breach of service as soon as practical and humanly possible.
12.7. Customer is responsible for implementing and complying with the Emergency Procedures as set forth in this Agreement.
13. REPRESENTATIONS & WARRANTIES
13.1. Material Performance of Software: After the Software is fully implemented and subject to Customer’s obligations named herein and any applicable Software Schedule, AngelTrack warrants that the Software will reliably collect, transmit, store and/or permit access to data in compliance with applicable law and industry standards.
13.2. Due Authority: Each Party’s execution, delivery and performance of this Agreement and each agreement or instrument contemplated herein is duly authorized by all necessary corporate or government action or actions.
13.3. DISCLAIMER OF WARRANTIES: EXCEPT AS OTHERWISE PROVIDED HEREIN, ANGELTRACK LLC / ANGELTRACK SOFTWARE LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, TITLE, NONINFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CUSTOMER ACCEPTS THE SOFTWARE “AS-IS” AND “AS AVAILABLE.”
14.1. Confidential Information aka “CI”: Refers to the following items:
(a) any document marked “Confidential;”
(b) any information orally designated as “Confidential” at the time of disclosure, provided the disclosing party confirms the designation by sending a follow-up statement of CI in writing or via e-mail within five (5) business days of the time of the initial disclosure;
(c) the Software and its Documentation, whether or not designated confidential;
(d) AngelTrack’s security controls, policies, procedures, reports, or other information concerning AngelTrack’s security posture;
(e) any other nonpublic, sensitive information reasonably treated as trade secret or otherwise confidential; and
(f) Customer Data which does not compromise PHI.
Further, “Confidential Information” means all data and information relating to the product or products of the Company, as well as all data and information relating to the Company itself, including but not limited to: 'Customer Information' which includes names of customers of the Company, their representatives, all customer contact information, contracts, and their contents. Additionally, Customer shall not allow, give access to, provide copy or information to another competing or non-competing company or its personnel, to an individual, group or entity, nor shall it allow access to the AngelTrack Server to view and/or copy the contents contained or stored therein. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the other Party’s possession at the time of disclosure free of the requirement(s) that meet(s) the criteria and definition of non-disclosure; (ii) is independently developed without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the receiving party’s improper action or inaction; (iv) as to AngelTrack’s Customer(s’) Feedback.
14.2. Nondisclosure: If it becomes necessary in order to fulfill the terms of this Agreement for one or both of the Parties to use Information previously deemed Confidential and belonging to the other Party, then and in that case, each Party shall (i) ensure that its employees, associates and/or contractors are bound by confidentiality obligations no less restrictive than those contained herein; and (ii) each agree to not disclose Confidential Information without first attaining prior written consent from the disclosing Party. Without limiting the generality of the foregoing, the receiving Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, thereby employing reasonable care. With the understanding that failure to notify an At Fault Breach of the Agreement, and the recipient or receiving Party shall promptly notify the disclosing Party via telephone communication of any misuse or misappropriation of Confidential Information of which it is aware. Additionally, written notification must be supplied to the disclosing Party within twenty-four (24) hours of the incident.
14.3. Termination & Return: Regarding Confidential Information, both separate and collective, the obligations of nondisclosure will terminate three (3) years after the date of disclosure; provided that, such obligations related to Confidential Information constituting AngelTrack’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to the Company or certify the destruction thereof within five (5) days of the commencement of the termination.
14.4. Retention of Rights: This Agreement does not, nor should it be construed to indicate a transfer of ownership of Confidential Information or grant a license thereto.
14.5. Non-Compete: The Parties understand and agree that any attempt on the part of either Party to induce other employees or contractors to leave the other’s workforce, or any effort to interfere with the relationship with one another’s employees and contractors would be harmful and damaging to either and both Parties. Therefore, each of the Parties agree that during the life of the Agreement, neither of the Parties will in any way, directly or indirectly in regard to employees and/or contractors:
a) Induce or attempt to induce any to quit employment or retainer with the other;
b) Otherwise interfere with or disrupt the other’s work relationship;
c) Discuss employment opportunities or provide information about competitive employment;
d) Solicit, entice, or hire away for the purpose of an employment opportunity that is in competition with the other Party.
Further, Customer shall not display AngelTrack information or product in a manner that confuses or calls into question the ownership of the same by the public. Display on a website, product, printed or virtual materials without the express and written permission of the Company is prohibited and is cause for Termination of Service. For further explanation, see Section 19.
14.6. Open Records and Other Laws: Notwithstanding any statement to the contrary contained herein, the Parties acknowledge that Confidential Information may be disclosed if required by law to a lawful public records request, including but not limited to, subpoenas whether civil or criminal in nature to a law infringement, provided that prior to such disclosure, notice of such required disclosure shall be given promptly and without unreasonable delay by the receiving Party in order to give the disclosing Party the opportunity to object to the disclosure and/or to seek a protective order. The receiving party shall reasonably cooperate in this effort. In addition, Customer may disclose the contents of this Agreement solely for the purpose of completing its review and approval processes under its local rules, if applicable.
15. INSURANCE (Incidents Schedule of Address-See Exhibit Library)
15.1. Insurance Levels of Liability: Throughout the Term and for a period not to exceed three (3) years thereafter for any insurance claim submitted on a claims-made form, AngelTrack shall maintain in effect the insurance coverage described in Exhibit One (1).
15.2. The Incidents Schedule of Address is set forth in Exhibit Two (2).
15.3. AngelTrack reserves the right to change, alter, enhance, or decrease the liability and insurance coverage as set forth herein and more thoroughly defined in the attached via an Exhibit.
16. INFRINGEMENT & INDEMNIFICATION
16.1. IP Infringement: Subject to the limitations in Section 15, AngelTrack shall indemnify and defend Customer from any damages, costs, liabilities, expenses to include reasonable attorney’s fees and “Damages” actually incurred or finally adjudicated as to any third-party claim or action and heretofore referred to as an “Indemnified Claim” alleging that the Software delivered pursuant to this Agreement infringed upon or misappropriated any third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the applicable jurisdiction. If Customer makes an Indemnified Claim under this Section or if AngelTrack determines that an Indemnified Claim may occur, AngelTrack shall, at its option and right, (a) obtain a right for Customer to continue using such Software; or (b) modify such Software causing it to be rendered as non-infringing. In the event neither, (a) nor (b) are reasonably practicable, either Party may, at its option, terminate the Agreement, in which case AngelTrack will refund any pre-paid fees on a pro-rata basis for such action. Notwithstanding the foregoing, AngelTrack shall have no obligation hereunder for any claim that results or arises from: (c) Customer’s breach of this Agreement; (d) modifications made to the Software not performed or provided by or on behalf of AngelTrack or (e) the combination, operation or use by Customer (and/or anyone acting on Customer’s behalf) of the Software in connection with any other product or service (the combination or joint use of which causes the alleged infringement).
16.2. Indemnification Procedures: Upon becoming aware of any matter which is subject to the provisions of a "Claim," Customer must give prompt written notice of such Claim to AngelTrack. The Claim must be accompanied by copies of any written documentation presented and thusly witnessed and sworn to its accuracy by the alleged injured party. The Customer’s Principle or Operations Manager must witness and swear to the written documents’ accuracy and the chain of custody regarding the Claim received by the Customer. AngelTrack will defend, at its own expense and with its own counsel, any such Claim. Customer will have the right, at its option, to participate in the settlement or defense of any such Claim, with its own counsel and at its own expense; provided, however, that AngelTrack retains the right to control such settlement or defense. AngelTrack will not enter nor agree to any settlement that imposes any liability or obligation on Customer without the Customer’s prior written consent. The Parties will cooperate in any such settlement or defense and give each other full access to all relevant information, at AngelTrack’s expense. THIS SECTION (16) OUTLINES ANGELTRACK’S SOLE OBLIGATION AND LIABILITY, AND CUSTOMER’S SOLE REMEDY, FOR POTENTIAL AND/OR ACTUAL INTELLECTUAL PROPERTY INFRINGEMENT BY THE SOFTWARE.
17. LIMITATION OF LIABILITY
17.1. LIMITATION OF DAMAGES. NEITHER ANGELTRACK NOR CUSTOMER SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING CLAIMS FOR DAMAGES FOR LOST PROFITS, GOODWILL, USE OF MONEY, INTERRUPTED OR IMPAIRED USE OF THE SOFTWARE, AVAILABILITY OF DATA, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS RELATING TO THIS AGREEMENT.
17.2. SPECIFIC LIABILITY. LIABILITY SHALL BE LIMITED AS FOLLOWS:
· ANGELTRACK’S OBLIGATIONS UNDER SECTION 16 SHALL BE LIMITED TO $500,000.
· DAMAGES ARISING FROM A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS (INCLUDING A BREACH OF OBLIGATIONS REGARDING PROTECTED HEALTH INFORMATION), SHALL BE LIMITED TO $1,000,000.
· DAMAGES ARISING FROM A PARTY’S WILLFUL MISCONDUCT OR CRIMINAL CONDUCT SHALL NOT BE LIMITED.
17.3. GENERAL LIABILITY. EXCEPT AS EXPRESSLY PROVIDED “SPECIFIC LIABILITY,” ANGELTRACK’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY (OR ON BEHALF OF) CUSTOMER WITHIN THE PRECEDING 12-MONTH PERIOD UNDER THIS AGREEMENT.
17.4. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND/OR DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION SHALL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION PERMITTED TO THE FULLEST EXTENT POSSIBLE UNDER SUCH LAW. THE PARTIES AGREE THAT THE LIMITATIONS SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR ANGELTRACK’S SOFTWARE AND SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSES OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
17.5. THIS SECTION (17) SHALL SURVIVE EXPIRATION OR TERMINATION OF THE AGREEMENT.
18. CUSTOMER DATA & USE THEREOF, COMPLIANCE & PRIVACY
18.1. Ownership of Data: As between AngelTrack and Customer, all Customer Data shall be owned by Customer.
18.2. Use of Customer Data. AngelTrack acknowledges that all data belongs to the Customer and that the Company is storing said data for the Customer. Therefore, unless it receives Customer’s prior written consent, the Company shall not grant any Third-party access to Customer Data, except as (a) subcontractors that are subject to a reasonable nondisclosure agreement and/or (b) authorized participants in the case of Software designed to permit Customer to transmit Customer Data. AngelTrack may only use and disclose Customer Data to fulfill its obligations under this Agreement or as required by applicable law or legal or governmental authority. Company shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise contest such required disclosure, achieved at Customer’s expense, save and except in the instance set forth in the Sections below.
18.3. Anonymized Data: CUSTOMER ACKNOWLEDGES AND AGREES THAT, NOTWITHSTANDING ANY OTHER PROVISION HEREIN, ANGELTRACK MAY USE ANONYMIZED CUSTOMER DATA FOR INTERNAL AND EXTERNAL PURPOSES (INCLUDING BENCHMARKING AND RESEARCH), PROVIDED THAT THE COMPANY DOES NOT SELL ANONYMIZED DATA TO THIRD PARTIES FOR COMMERCIAL OR PERSONAL USE. Without limiting the foregoing, AngelTrack will own all right, title and interest in all Intellectual Property of any aggregated and de-identified reports, summaries, compilations, analysis, statistics or other information derived therefrom.
18.4. Customer Compliance: Customer shall comply with all applicable local, state, federal, national, international, and foreign laws, treaties, regulations, conventions, and standards of each applicable jurisdiction and community in connection with the use of the Product, including those related to privacy, electronic communications, and anti-spam legislation. The Product shall not be accessed or used in a manner that is, or that aids or assists any purpose or activity that is, illegal; invades or infringes the privacy or other rights or expectations of any person; that may be considered offensive, abusive, inappropriate, threatening, harassing, libelous, slanderous, defamatory, intrusive, surreptitious, obscene or inconsistent with community standards; or that may otherwise damage Company or Company’s service providers' business, services, reputation, or good will. Company has the right to permanently destroy any Customer Data and any back-ups thereof that violates this section.
19. WORK PRODUCT, TRADEMARK/COPYRIGHTS, MARKETING, NOTIFICATIONS
19.1. Work Product Ownership: Both now and in the future, AngelTrack alone shall hold all right, title, and interest to all proprietary and intellectual property rights, including and without limitation: patents, trade secrets, copyrights-including logos and software features- and trademarks, as well as title to any copy of Software made by or for Customer, if applicable. Customer hereby explicitly acknowledges and agrees that nothing in this Agreement or any separate Addendum gives the Customer any right, title, or interest to the intellectual property or proprietary know-how of the Software.
19.2. Trademarks and Copyrights: AngelTrack’s trademark and logo are registered and copyrighted products of AngelTrack. Customer is restricted from use of the AngelTrack work product except with written permission from the Company for reproduction. Customer shall not display AngelTrack information, marketing, photos, drawings, sketches, logo, trademark(s) or brand in a manner that confuses or calls into question the ownership of the same by the general public. The display of one, any, or all the aforementioned on a website, product, printed or virtual materials without the express and written permission of the Company is prohibited and subject to Infringement laws.
19.3. Marketing. AngelTrack engages in social media, mass media and media platforms as a method of promoting its brand, including but not limited to promotional videos, billboards, media postings, emails, Google Ads, LinkedIn, Facebook, Twitter, magazine displays, and other forms of advertisement available to the consumer. Additionally, AngelTrack makes periodic postings on its social media pages and website that may reference a Customer’s business name, location and/or images associated with the Customer. As a courtesy, Company will notify and request Customer’s compliance in displaying said information and verbal permission given by an employee of the Customer or Key Personnel of the Customer warrants an agreement to the same. Customer may be asked to sign a Media Release for AngelTrack to photograph, record and/or develop promotional videos featuring Customer’s business, including but not limited to, personnel, equipment, vehicles, locations, and actions/activities. In the event a Customer is the subject or shared subject of a promotional video or advertising platform, there shall be no compensation for the use of its images or names other than the listing of the same in the Credits. AngelTrack may provide the Customer with a copy of any focused promotional video, photos or raw material(s) for the Customer’s exclusive use in marketing their business that displays the Customer and its personnel, equipment, location, and/or business in general. Customer may be asked to provide “staged” action using AngelTrack Software, AngelTrack employees and/or that of the Customer.
19.5. Ownership in Marketing or Shared Media Platform: Association, shared platforms or displays in media presentations should not be construed as evidence of a partnership, ownership, or affiliation one-to-the-other between AngelTrack and the Customer.
19.6. Website, Server, and Email Notifications: AngelTrack may at any given time send Notifications to the Customer via the Company’s website, notifications in the Customer’s Server or the email address supplied by the Customer to the Company. Notifications of product updates and changes, product and pricing adjustments, new features, scheduled or unscheduled downtime, outages, emergency situations, ToS or Private Policy changes, Addendums or Exclusions, Exhibits, marketing notices, and other miscellaneous materials and information are included as part of the Notifications terminology. Customer agrees to the Notification via the means named herein, unless specifically stated to the contrary. Customer can only deny marketing notices as all other listed information is pertinent to the operation of AngelTrack and the Customer. As set forth in Section 3.4, if the Customer does not sign and submit its refusal of marketing notices, Implied Consent will govern the practice.
20. LAW COMPLIANCE AND GOVERNMENT PROVISIONS
20.1. Compliance with Laws in General. Both Parties shall comply with and give all notices required by all applicable Federal, State, and local laws, ordinances, rules, regulations, and lawful orders of any public authority holding a bearing on the use of the Software and the performance of this Agreement.
20.2. Disbarment of Party Members. AngelTrack and Customer, (both Parties,) agree to report to one another within five (5) days in formal Notification if an Owner, Administrator, Employee or Contractor, individually or collectively, is listed by a federal agency as debarred, excluded or otherwise ineligible for participation in federally funded health care programs.
20.3. Compliance with Authorities: If required by law, whether state or Federal, AngelTrack will comply with the stipulations or outlines of a subpoena and/or warrant in regard to the Customer’s data and files. AngelTrack will notify Customer of its intent to comply with authorities and the information requested for review as set forth herein unless notification is prohibited by law.
20.4. Security Exchange Commission: In the event Principle(s), Owner(s) or Key Employee(s) of the Customer fall(s) under investigation and/or is fined by the Securities and Exchange Commission, for negligence, misrepresentation, and/or misconduct whether directly or indirectly associated with the Customer’s business, AngelTrack reserves the right to terminate the Agreement under the term of Willful Breach.
20.5. Equal Opportunity. The Parties shall abide by the following requirements of stated Federal Laws in regard to governmental contracts and to Agreements in General whether governmental, public or private: of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a), and the posting requirements of 29 CFR Part 471, appendix A to subpart A, if applicable which thereby prohibit discrimination on the basis of protected veteran status, disability, race, color, religion, sex, sexual orientation, gender or gender identity, or identity or national origin.
21. PHI ASSURANCES, ACCURACY & COMPLETENESS
21.1. Customer Responsibilities: Because AngelTrack allows the Customer and its Users to enter, document, and disclose Customer Data, AngelTrack offers no guarantees nor makes any representation to the accuracy of completeness of the Customer Data, including PHI, as entered, uploaded, or disclosed through the Software. Therefore, Customer is fully and solely responsible for any actions and/or decisions formulated, planned, made and/or taken using the information and data as received by or through the Software.
21.2. Company’s Responsibilities to PHI: In the event Supplier creates, receives, maintains, or otherwise is exposed to personally identifiable or aggregate patient or other medical information defined as Protected Health Information ("PHI") in the Health Insurance Portability and Accountability Act of 1996 or its relevant regulations ("HIPAA") and otherwise meets the definition of Business Associate as defined in the HIPAA Privacy Standards (45 CFR Parts 160 and 164), Supplier shall:
(a) Recognize that HITECH (the Health Information Technology for Economic and Clinical Health Act of 2009) and the regulations thereunder, including but not limited to, 45 C.F.R. Sections 164.308, 164.310, 164.312, and 164.316), apply to a business associate of a covered entity in the same manner that such sections apply to the covered entity;
(b) Not use or further disclose the PHI, except as permitted by law;
(c) Not use or further disclose the PHI in a manner that had Customer done so, would violate the requirements of HIPAA;
(d) Use appropriate safeguards, (including implementing administrative, physical, and technical safeguards for electronic PHI,) to protect the confidentiality, integrity, and availability of and to prevent the use or disclosure of the PHI other than as provided for by this Agreement;
(e) Comply with each applicable requirements of 45 C.F.R. Part 162 if Supplier conducts Standard Transactions for or on behalf of the Covered Entity;
(f) Report promptly to Customer any security incident or other use or disclosure of PHI not provided for by this Agreement of which Supplier becomes aware;
(g) Ensure that any subcontractors or agents who receive or are exposed to PHI (whether in electronic or other format) are explained the Supplier obligations under this paragraph and agree to the same restrictions and conditions;
(h) Make available PHI in accordance with the individual's rights as required under the HIPAA regulations;
(i) Account for PHI disclosures for up to the past six (6) years as requested by Covered Entity, which shall include: (i) dates of disclosure, (ii) names of the entities or persons who received the PHI, (iii) a brief description of the PHI disclosed, and (iv) a brief statement of the purpose and basis of such disclosure;
(j) Make its internal practices, books, and records that relate to the use and disclosure of PHI available to the U.S. Secretary of Health and Human Services for purposes of determining Customer's compliance with HIPAA; and
(k) Incorporate any amendments or corrections to PHI when notified by authorities.
22. EMERGENCY PREPARATIONS & ACTIONS
22.1. State Approved 911 Emergency Dispatch: If the Software is used by a State-approved 911 Customer, or if the Customer anticipates 911 emergency dispatching, each dispatching workstation without exception shall be provisioned with the following items to ensure the protection of the system and ability to deliver/relay 911 needs.
· Wired ethernet connections, not WiFi, to the internet gateway device
· An Uninterruptible Power Supply (UPS) device to power equipment
· Redundant internet connections from different internet service providers, or using different topologies if only one broadband internet service provider is available, and protected by UPS devices
· Spare extension cords sufficient to reach the operating area of one or more backup generator(s) capable of simultaneously powering all dispatchers' computers including their monitors, network switches, and internet connections, and with at least twelve hours' fuel available and onsite
22.2. Protocol Manual/Book: Each Customer’s vehicle used for ALS or BLS Emergency must possess and store a “Protocol Manual/Book” that outlines the procedures to be undertaken in the event of an emergency, whether medical or otherwise. A Manual/Book must be supplied for each employer/employee workstation. The Manual/Book must list the requirements, directives, procedures, and actions to be taken by all Employees, including but not limited to, ambulance crews or personnel, Supervisors, Dispatchers, non-EMS personnel, office personnel, and any other person/s associated with the operations of the Customer. AngelTrack is not liable for any damages to the Customer or the Customer’s patient or patients that result from the inability of emergency personnel to perform their duties for any reason whatsoever whether or not associated to the use of and or dependence on the Software, its text, information, graphics, or references, which are for informational purposes only. They are not intended to replace professional medical instruction or advice, procedural treatment of patient(s) in an emergency or otherwise, nor serve as a diagnosis or basis of diagnosis for the same. A Customer who does not provide the Protocol Manual/Book to its personnel and in the required locations and the Customer’s personnel who do not use, consult or employ the Manual/Book despite the instruction contained herein, do so at each of their own risks, and accept responsibility for their actions and the outcome thereof, and release AngelTrack from any all liability associated with the decision or the outcome of the same.
22.3. Medical Director and EMD: The Customer’s Medical Director must review and approve the Software’s built-in Emergency Medical Dispatch (EMD) card deck for conformity with local and state regulations prior to the Customer accepting 911 calls.
22.4. Medical Director and Medical Protocol Document: The Customer’s Medical Director must review and approve the Software’s Customer built-in medical protocol document for conformity with local and state regulations or has disabled the Product's built-in medical protocol document by inputting the internet
22.5. Customer agrees to read and implement the "Disaster Preparedness" guide included within Software's online help (website) to ensure continuity of service during an outage.
COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY ARISING OUT OF OR RELATING TO ANY PRODUCTS OR SERVICES, OTHER THAN THE PRODUCT PROVIDED BY SUPPLIER AS AN APPLICATION SERVICE PROVIDER.
23.2. Independents: The Parties are independent and neither Party is the agent of the other, and neither may make commitments on the other’s behalf. The Parties agree that no AngelTrack employee or contractor is or will be considered an employee of Customer.
23.3. Notices: Notices provided under this Agreement must be in writing and delivered by (a) a recognized delivery service including USPS with signature-receipt proof of delivery to a Party’s principal place of business designated in Section 3.1 hereof, (b) hand delivered, or (c) e-mailed to a person designated in writing by the receiving Party. In the case of delivery by e-mail, the Notice must be followed by a copy of the Notice being delivered by a means provided in (a) or (b). The Notice will be deemed given on the day the Notice is received.
23.4. Merger Clause: In entering into this Agreement, neither of the Parties are relying upon any representations or statements of the other that are not fully expressed in this Agreement. The Parties, using prudent judgment and due diligence, expressly disclaim reliance upon any representations or statement not expressly set forth in this Agreement. In the event the Customer issues a purchase order, letter or any other document addressing the Software or Services to be provided and performed pursuant to this Agreement, it is hereby specifically agreed and understood that any such writing belongs to and is for the Customer’s internal purposes only, and that any terms, provisions, and conditions contained therein shall in no way modify this Agreement.
23.5. Severability: To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect with Special Consideration to Sections and/or Subsections: 3.1, 3.4, 3.9, 7.3, 8.4, 9.1, 10, 11, 13.3, 14, 15, 16, 17, 18.3, 19, 20, 21, 22, 23. Where no decimal appears it should be understood that the entire Section will survive in perpetuity.
23.6. Subcontracting: Except for training and implementation services related to the Software, neither Party may subcontract or delegate its obligations to each other hereunder, nor may it contract with Third parties to perform any of its obligations hereunder except as contemplated and defined in this Agreement, without the other Party’s prior written consent.
23.7. Modifications and Amendments: This Agreement may not be amended except through a written agreement signed by authorized representatives of each of the Parties, provided that the Parties agree that each may employ the use of informal writings which include emails to the Company’s and Customer’s authorized representatives to: (i) terminate Software products and services; and (ii) approve or change the rate or tier increases for the Software being currently employed by the Customer.
23.8. Force Majeure: Both Parties are essentially freed from liability or obligation when an extraordinary event or circumstance beyond the control of the Parties, as in the event of a war, strike, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, crime, epidemic terrorism, hurricane, earthquake, or other acts of God or of nature, or sudden legal changes prevents one or both Parties from fulfilling their obligations under the Agreement. No delay, failure, or default will constitute a breach of this Agreement to the extent caused by the above-named acts or other such associated occurrences; collectively known as Force Majeure. Should such an event occur, the impacted Party must promptly provide the other Party notice of the Force Majeure. The Party’s time for performance will be excused for the duration of the Force Majeure, but if the event last longer than thirty (30) days, special consideration will be extended and employed with results up to and including the termination of this Agreement.
23.9. Waiver and Breach. Neither Party will be deemed to waive any rights under this Agreement except through an explicit written waiver made by an authorized representative. No waiver of a breach of this Agreement will constitute a waiver of any other breach hereof.
23.10. Survival of Terms: Unless expressly stated herein to the contrary, all AngelTrack’s and Customer’s respective obligations, representations and warranties under this Agreement which are not, by the expressed terms of this Agreement, fully to be performed while this Agreement is in effect, shall survive the termination of this Agreement and as set forth herein with regard to Special Consideration.
23.11. Ambiguous Terms: This Agreement will not be construed against any Party by reason of its preparation.
23.12. Governing Law: In any Dispute, each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees unless stated herein to the contrary. Any Controversy or claim dispute of this Agreement and its contents are to be governed by: (i) the laws of the State of Texas; or (ii) if Customer is a city, county, municipality or other governmental entity or agency thereof, the law of state where Customer is located, in each case foregoing without regard to its conflicts of law.
23.13. The UNCISGUCITA: The UN Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.
23.14. No Class Actions: NEITHER PARTY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER ANGELTRACK CUSTOMERS OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
23.15. Dispute Resolution: The Parties will attempt to resolve any dispute through negotiation or when necessary, by using a mediator agreed to by the Parties, rather than through litigation. The cost, if any, associated with the employment of the mediator will be born equally by the Parties. Negotiations and mediations will be treated as Confidential and are subject to the Confidentiality Statement herein. If the Parties are unable to reach a resolution within thirty (30) days of Notice of the Dispute to the other Party, then in that case and instance, the Parties may pursue all other courses of action available at law or in equity.
23.16. Technology Export: Customer shall not: (a) permit any Third-party to access or use the Software in violation of any U.S. law or regulation and/or of this Terms of Service; or (b) export any Software provided by AngelTrack or otherwise remove it from the United States except in compliance with all applicable U.S. laws. Without limiting the generality of the foregoing, Customer shall not permit any Third-party to access or use the Software in, or export such Software to, a country subject to a United States embargo or partial embargo. As of March 10, 2022, the following stands valid and is currently the best representation of information available:
List of Comprehensively Sanctioned Countries: China, Cuba, Iran, North Korea, Russia, Syria, Ukraine Regions: Crimea, Donetsk and Luhansk
Other Countries Subject to OFAC Sanctions: Balkans, Belarus, Burma (Myanmar), Central African Republic Congo, Dem. Rep. of Ethiopia, Hong Kong, Iraq, Lebanon, Libya, Sudan, Venezuela, Yemen, Zimbabwe
Transactions related to activities with specific parties in these countries are prohibited.
23.18. Counterparts: This Agreement may be executed in one or more counterparts. Each counterpart will be an original, and all such counterparts will constitute a single instrument.
23.19. Signatures: Electronic signatures on this Agreement or on any Addendum (or copies of signatures sent via electronic means) are the equivalent of handwritten signatures.
23.20. No Rights or Licenses: No rights, titles, interest or licenses to the technology and intellectual property concerning the Software are granted to Customer in these Terms of Service. All rights, title, and interest in and to all technology and intellectual property concerning the Software are and shall be solely owned by the Company known as AngelTrack LLC/AngelTrack Software LLC.
23.21. Severability: The clauses and paragraphs contained in this Agreement are intended to be read and construed independently of each other. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
23.22. No failure or delay by the Company in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers, or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement.
23.23. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors, and assigns, as the case may be, of the Company and the Customer.
23.4. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise.
LIBRARY OF EXHIBITS
Exhibit One…………………………………………..INSURANCE LIABILITY
Exhibit Two…………………………………………..INCIDENTS SCHEDULE OF ADDRESS
INSURANCE LIABILITY; EXHIBIT ONE (1) (as of January 1, 2023.)
See Section 15.1 for introduction with further explanation listed as:
· Commercial general liability insurance with a minimum of $1 million per occurrence and $1 million aggregate;
· Computer processor/computer professional liability insurance, also styled as technology errors and omissions covering the liability for financial loss due to omission, error or negligence, whether singular or plural, by AngelTrack, including but not limited to, privacy and network security insurance also styled as “cyber coverage” to cover losses arising from a disclosure of confidential information which includes PHI with a combined aggregate amount of $1 million;
· Commercial automobile liability insurance covering use of all non-owned and hired automobiles with a minimum limit of $1 million for bodily injury and property damage liability;
· Worker’s Compensation Insurance and Employer’s Liability Insurance or any Company approved plan or coverage as an alternative as permitted or required by applicable law, with a minimum employer’s liability limit of $1 million each accident and/or disease.
INCIDENTS SCHEDULE OF ADDRESS; EXHIBIT TWO (2)
Target Resolution Times. AngelTrack will use the following timeframes as targets for resolution of these issues.
Target Resolution for Fix
24 to 48 hours after AngelTrack determines that the issue requires a change in the Product.
S Important, Workaround Available
14 days after AngelTrack determines that the issue requires a change in the Product.
28 days after AngelTrack determines that the issue requires a change in the Product.
For purposes of the foregoing, an incident shall be considered resolved if its Incident Priority status is reduced to a lower tier as defined above.
1. Incident Priority. In the interest of efficiently allocating Company's support resources, Company will prioritize the urgency of support requests and inquiries according to the following criteria guidelines (each, an "Incident Priority"):
Severity: Core business functionality is broken
· Issues which cause data loss or data corruption.
· Issues which prevent use of core business workflows - e.g. login, transactions, groups of reports or lists, account provisioning.
· Incorrect data on key financial reports (Balance Sheet, Income Statement, Trial Balance, General Ledger, A/R aging).
· Security Breaches - including permission errors which erroneously expose data, or which prevent valid data access.
(b) S2 - Important, Workaround Available.
Severity: Causes moderate disruption to business processes, but is not of SI or S2 priority
Workaround: One of more convenient workarounds
o Issues which moderately affect feature functionality on transactions, lists, reports, etc.
o Moderate localized performance degradation.
o Localized or browser-specific issues (other than Windows/IE).
o Incorrect data on non-financial reports.
o Incorrect data being displayed in the browser, even though the data is correct in the database.
o User visible issues which affect functionality, generating "Unexpected error."
o Unreasonably slow pages
Severity: Does not affect any functionality
Workaround: Not needed
o Incorrectly formatted data.
o Issues which have a minor effect on feature functionality in transactions, lists, reports, etc.
o Isolated performance issues which do not affect work flow.
o Misleading or ambiguous documentation.
o Poorly structured or worded user interfaces.
o Visual inconsistencies.
o Typographical errors in documentation or isolated interfaces.