WebCOBRA On Demand End User License Agreement
This WebCOBRA On Demand End User License Agreement (the "EULA") is hereby presented by Travis Software Corp. ("Travis"), the provider of the WebCOBRA On Demand Internet-based service ("WebCOBRA"). This EULA, along with your Order Form and other documents comprising of this Agreement, have specific conditions of use. The following information applies to your use of WebCOBRA made available to you through this Web site and is the current version of the Terms and Conditions of Use:
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE START OF USAGE ORDERING PROCESS AND USING ALL OR ANY PORTION OF WEBCOBRA, YOU AGREE AND ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND OF THE ORDER FORM, WHICH GOVERNS YOUR USE OF THE WEBCOBRA ONLINE SERVICE (THE "SERVICE"). YOU AGREE THAT THIS LICENSE AGREEMENT AND ORDER FORM ARE ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE WEBCOBRA. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND YOU WILL NOT BE ALLOWED TO USE THE SERVICE.
Once you accept the terms and conditions of the Agreement, Travis will provide you access to the Service, including a browser interface and data encryption, transmission, and storage. Your registration for, or use of, the Service shall be your acceptance to be bound by the Agreement, including any materials available on WebCOBRA incorporated by reference herein. Such materials may include, but are not limited to WebCOBRA's privacy and security policies. For additional reference, a Definitions section is included at the end of the Agreement.
Subscription to this Service is provided in one or all of the following ways:
- Single-Employer Professional Edition
- Single-Employer Enterprise Edition
- TPA/Administrator Professional Edition
- TPA/Administrator Enterprise Edition
Please see our website for feature differences between the various editions.
- Users and Logins
- Privacy & Security; Disclosure
- License Grant & Restrictions
- Your Responsibilities
- Account Information and Data
- Intellectual Property Ownership
- Third Party Interactions
- Charges and Payment of Fees
- Data Storage and Archived Data Retrieval Fees
- Billing and Renewal
- Non-Payment and Suspension
- Minimum Term of 1 Year: Termination upon Expiration/Reduction in Number of User Licenses and/or Logins
- Termination for Cause
- Representations & Warranties
- Indemnification
- Disclaimer of Warranties
- Internet Delays
- Limitation of Liability
- Additional Rights
- Local Laws and Export Control
- Notice
- Assignment
- General
- Confidentiality
- Miscellaneous
- Travis retains all rights not expressly granted to you in this Agreement. The Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Nothing in this Agreement constitutes a waiver of Travis' rights under the applicable copyright law. This license is non-exclusive.
- Except as expressly provided above, this Agreement, or any part thereof, cannot be changed, waived, or discharged other than by a statement in writing signed by you and Travis.
- If any of the provisions within the EULA and Order Form are contradictory or inconsistent, then the provisions of this EULA shall control.
- If a court of competent jurisdiction declares any section of this Agreement to be invalid, unlawful or unenforceable as drafted, such section will be amended and construed in a manner designed to effectuate the purposes of the section to the fullest extent permitted by law. If such section cannot be so amended and construed, it shall be severed and the remaining sections will remain unimpaired and in full force and effect to the fullest extent permitted by law.
- The Sections captioned in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement.
- Matters Related to Protected Health Information (PHI)
- Not use or disclose PHI other than as permitted or required by the Agreement, as specified in the Service Order Form or as Required by Law and will take reasonable efforts to limit requests for use and disclosure of PHI to the minimum necessary to accomplish the intended request, use or disclosure.
- Use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by the Agreement and shall implement and maintain reasonable and appropriate administrative, technical, and physical safeguards to protect PHI from loss, misuse and unauthorized access, disclosure, alteration and destruction, including, but not limited to, maintaining written policies and procedures to detect, prevent or mitigate identity theft based on PHI or information derived from. In addition, Travis will implement and maintain administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI in compliance with the security requirements of the HIPAA Rules set forth in 45 CFR Parts 160 and 164 and any guidance issued by the Secretary.
- Mitigate, to the extent practicable, any harmful effect that is known to Travis of a use or disclosure of PHI in violation of the Agreement.
- To the extent known by Travis, to report to WebCOBRA Customer any use or disclosure of PHI other than as permitted by the Agreement promptly after Travis has actual knowledge of such use and disclosure and to report promptly to each WebCOBRA Customer each Security Incident (as defined at 45 CFR §164.304) that it becomes aware as determined by Travis. Following the discovery of a Breach of unsecured PHI, Travis shall notify WebCOBRA Customer of such Breach promptly after Travis has actual knowledge of such use or disclosure. All reports of breaches of unsecured PHI shall be made in compliance with 45 CFR §164.410and will include the identification of each individual whose unsecured PHI has been, or is reasonably believed to have been accessed, acquired or disclosed during the Breach. A Breach will be treated as discovered as of the first day such Breach is known or reasonably should have been known by Travis. require any and all of its subcontractors and agents that receive, use or have access to PHI to agree, in writing, to adhere to the same restrictions and conditions on the use or disclosure of PHI that apply to Travis, as set forth in the Agreement.
- Ensure in its agreement with any agent, including a subcontractor, to whom it provides PHI received on behalf of the WebCOBRA Customer, any conditions with respect to such information that are at least as restrictive as those that apply through the Agreement. Travis agrees to ensure that any such agents, including sub-agents, to whom it provides PHI received from or created or received by Travis on behalf of the WebCOBRA Customer, agree in writing to implement the reasonable and appropriate safeguards that are at least as restrictive that apply to the Agreement to protected the Travis HTIECH Customer's PHI.
- Provide access at the request of WebCOBRA Customer and, in a reasonable time and manner, to PHI in a Designated Record Set to WebCOBRA Customer to meet the requirements under 45 CFR §164.524.
- Upon reasonable notice, Travis agrees to make internal practices, books, and records, relating to the use and disclosure of PHI available to the Secretary of the U.S. Department of Health and Human Services (the "Secretary") at WebCOBRA Customer's expense for purposes of the Secretary determining WebCOBRA Customer's compliance with the Privacy Rule, including policies and procedures for PHI, relating to the use and disclosure of PHI received from, created, received by Travis on behalf of WebCOBRA Customer will be made available to WebCOBRA Customer, or the Secretary in a reasonable time and manner, or in a time designated by the Secretary for purposes of the Secretary determining the WebCOBRA Customer's compliance with HIPAA.
- If Travis maintains PHI in a Designated Record Set, Travis will make available to WebCOBRA Customer such information that may be required to fulfill WebCOBRA Customer's obligations to respond to a request for access to PHI as provided under 45 CFR §164.524 or to respond to a request to amend PHI pursuant to 45 CFR §164.526 in a reasonable time and manner. Travis shall refer to WebCOBRA Customer all such requests that Travis may receive from individuals. If WebCOBRA Customer requests Travis to amend PHI in Travis' possession to comply with 45 CFR §164.526, Travis shall effectuate such amendments no later than the date they are required to be made in accordance with 45 CFR §164.526; provided that if Travis receives such request from WebCOBRA Customer less than ten (10) business days prior to such date, Travis will effectuate such amendments as soon as is reasonably practicable.
- If applicable, Travis agrees to provide WebCOBRA Customer, within a reasonable time, such information necessary to permit WebCOBRA Customer to respond to a request by an individual for an accounting of disclosures as provided under 45 CFR §164.528. Travis shall refer to WebCOBRA Customer all such requests that Travis may receive from individuals.
- Notwithstanding any other provision of the Agreement, no later than February 17, 2010 unless a separate compliance date is specified by law, Travis hereby acknowledges and agrees that to the extent it is functioning as a business associate of WebCOBRA Customer, Travis will comply with the applicable provisions under HITECH Standards and with the obligations of a business associate as prescribed by the HIPAA Rules commencing on the compliance date of each such provision. Travis and the WebCOBRA Customer further agree that the provisions of the HIPAA Rules and HITECH Standards that apply to Travis and that are required to be incorporated by reference in a business associate agreement are hereby incorporated in the Agreement between Travis and such WebCOBRA Customer as if set forth in the Agreement in their entirety and are effective as of the compliance date.
- To the extent Travis is acting as a business associate as defined under the HITECH Regulations, Travis shall be subject to the penalty provisions specified in Section 13404 of ARRA.
- Definitions As used in the Agreement and in any Order Forms now or hereafter associated herewith:
- "Agreement" means the agreement between you and Travis that consists of the (i) EULA, (ii) online terms of use, (iii) any Order Forms, and (iv) any materials available on the WebCOBRA website specifically incorporated by reference herein, as such materials, including the terms of the Agreement, may be updated by Travis from time to time in its sole discretion; All prior agreements and all oral or collateral representations, agreements, and understandings are superseded by this Agreement.
- "ARRA" means the American Recovery and Reinvestment Act of 2009.
- "Breach" means the acquisition, access, use or disclosure of PHI in a manner not permitted under the Privacy Rules that compromises the security or privacy of the PHI which comprises the security or privacy of such information, Notwithstanding the foregoing, the term "Breach" shall not include any (i) unintentional acquisition, access or use of PHI by an employee or individual acting under the authority of a Covered Entity or Business Associate if (A) such was made in good first hand within the course and scope of the employment or other professional relationship of such employee or individual, respectively, with Covered Entity and (B) such information is not further acquired, accessed, used or disclosed by any person and does not result in the further use of disclosure in a manner not permitted by the Privacy Rule; (ii) inadvertent disclosure from an individual who is otherwise authorized to access PHI at a facility operated by a Covered Entity or Business Associate to another similarly situated individual at same facility and the information received as a result of such disclosure is not further used or disclosed in a manner not permitted by the Privacy Rule; and (iii) a disclosure of PHI where a Covered Entity or Business Associate has a good faith belief that an unauthorized person to whom disclosure is made would not reasonably be able to retain such information.
- "Broker User" means a User authorized to use the Service in a limited fashion, as permitted by the WebCOBRA Customer, so that they may access, view, and/or enter certain types of Customer-Entered Data and produce certain reports pertaining to the client/employers to whom they are assigned.
- "Call-Center User" means a User that is authorized to access records as "view-only" and input notes in QB(s) records for one or multiple clients of the WebCOBRA Customer.
- "Client/Employer User" means a User authorized to use the Service in a limited fashion, as permitted by the WebCOBRA Customer, so that they may access, view, and/or enter certain types of Customer-Entered Data and produce certain reports pertaining to the client/employers to whom they are assigned.
- "Compliance Date" means the date(s) established by the Secretary of the U.S. Department of Health and Human Services or the United States Congress as the effective date(s) of applicability and enforceability of the HIPAA Rules and HITECH Standards.
- "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service.
- "Customer-Entered Data" means any data, information, or material provided or submitted by you r Users to the Service in the course of using the Service;
- "Customer Data" means (i) Customer-Entered Data, and (ii) Letter Data;
- "Designated Record Set" means the term "designated record set" used in 45 CFR § 164.501 and shall include a group of records that is: (i) the enrollment, payment, claims adjudication and case or medical management record systems maintained by or for Covered Entity by Business Associate or (ii) used, in whole or in part, by or for Covered Entity to make decisions about Individuals.
- "Effective Date" means the first day of your Initial Term;
- "Health Care Operations" shall have the meaning defined under HIPAA, including in 45 C.F.R. §164.501, as may be amended from time to time;
- "HIPAA Rules" shall Privacy Rule and Security Rule provided under the federal Health Insurance Portability and Accountability Act, as the same shall be in effect from time to time;
- "HITECH Standards" means the privacy, security and security breach notification provisions applicable to a business associate under Subtitle D of the Health Information Technology for Education and Clinical Health Act, which is Title XIII of ARRA, and any regulations promulgated thereunder.
- "Individual" means the term "individual" used in 45 CFR §160.103, and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
- "Initial Term" means the initial twelve (12) month period that begins with the later of the date (i) you complete and deliver to Travis your Service Order Form, or (ii) Travis receives your initial quarterly fee, and ends as of the date that such twelve (12) month period expires, during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter).
- "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
- "Letter Data" means any letters that are produced, generated, and/or stored by the Service;
- "License Term(s)" means either the Initial Term or any subsequent Renewal Term of either twelve (12) or twenty-four (24) month period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);
- "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted in written form, specifying, among other things, the number of licenses, users, optional modules, and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of the Agreement;
- "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Parts 160 and 164, Subparts A and E.
- "Protected Health Information" ("PHI") means the term "protected health information" used in 45 CFR Section 160.103, limited to the information received from or created on behalf of WebCOBRA Customer by Travis, or created by Travis, in any form or medium.
- "QB Login" means access wherein the WebCOBRA Customer Supervisory Administrator allows a Qualified Beneficiary ("QB") to access the system to review their personal record. Such access may include online payment entry via a third-party vendor that must be independently established by the WebCOBRA Customer Supervisory Administrator.
- "Renewal Term" means each subsequent twelve (12) or twenty-four (24) month period, depending on the Agreement between both parties, that immediately follows the expiration of the Initial Term.
- "Required By Law" means the term "required by law" used in 45 CFR §164.501.
- "Security Incident" means the term "security incident" used in 45 CFR §164.304.
- "Security Rule" means the Standards for the Protection of Electronic Protected Health Information at 45 CFR Parts 160 and 164, subparts A and C.
- "Service(s)" means the specific edition of WebCOBRA's online customer services identified during the ordering process, developed, operated, and maintained by Travis, accessible via http://www.WebCOBRA.com or another designated web site or IP address, or ancillary services rendered to you by Travis, to which you are being granted access under the Agreement, including the WebCOBRA Technology and the Content.
- "Site User" means the licensed users able to access and use WebCOBRA that must be: (i) an employee of the WebCOBRA Customer, (ii) authorized by an applicable WebCOBRA Customer's Supervisory Administrator, and (iii) included within the total User Fee paid by the WebCOBRA Customer.
- "Supervisory Administrator" means the highest level of Site-User established by the WebCOBRA Customer.
- "Travis" means the collectively Travis Software Corp., a Texas corporation, having its principal place of business at 1155 Dairy Ashford Road, Suite 250, Houston, Texas 77079.
- "User(s)" means those individuals designated by you who are authorized to access the System and input Customer-Entered Data and otherwise administer your use of the Service, including, but not limited to: (i) Site-User, (ii) Client/Employer User, (iii) Broker User, (iv) Call-Center User. Each User of the system may be chargeable to the WebCOBRA Customer.
- "WebCOBRA Customer" / "You" means the entity that is voluntarily entering into this Agreement for the access and use WebCOBRA.
- "WebCOBRA Technology" means all of WebCOBRA's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Travis in providing the Service.
Travis requires a license for each User who may then access, search and display the Customer Data provided by WebCOBRA. WebCOBRA identifies four (4) types of Users: (i) Site-User(s), (ii) Call-Center User(s), (iii) Client/Employer User(s), and (iv) Broker User(s). In addition, a WebCOBRA Customer may choose to allow a Qualified Beneficiary ("QB") to access the system through a QB Login and view entries pertaining to their own record(s).
Site Users are given a "Site User Login" and assigned a level of system usage by the WebCOBRA Customer's System Administrator, and may be authorized to access all records or those of a defined set of Employer(s) records, as determined by the WebCOBRA Customer's Supervisory Administrator. Call-Center Users are given a "Call Center User Login" and assigned that level of system usage by the WebCOBRA Customer's Supervisory Administrator, and are authorized to access records as "view only" as well as input notes in QB(s) records for one, a group or all clients of the WebCOBRA Customer, as determined by the WebCOBRA Customer's Supervisory Administrator. A Client/Employer User and Broker User are Users who are provided a "Client/Employer User Login" or "Broker User Login" by a WebCOBRA Customer's Supervisory Administrator and are authorized to use the Service in a limited fashion, as permitted by the WebCOBRA Customer's Supervisory Administrator, so that they may access, view, and/or enter certain types of data and produce certain reports pertaining to the Client/Employers to whom they are assigned. "QB Login(s)" allow a Qualified Beneficiary ("QB"), if permitted by the WebCOBRA Customer, to access records about themselves in the WebCOBRA system. Such QB Login(s) may also, if further permitted by the WebCOBRA Customer, allow such QB the ability to make limited payment entries pertaining to their own record(s) via an independent third-party vendor.
All Site Users and Client/Employer Logins in the WebCOBRA system are expressed as the person's email address and must be unique from all other Client/Employer Logins employed by the assigning WebCOBRA Customer.
The WebCOBRA Privacy and Security policies may be viewed at http://www.WebCOBRA.com. Travis reserves the right to modify the Privacy and Security policies in its reasonable discretion from time to time. Users, after they initially log in, will be asked whether or not they wish to receive marketing and other non-critical Service-related communications from the Service from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preference in the manner prescribed on WebCOBRA's website. Note that because the Service is a hosted, online application, Travis occasionally may need to notify all users of the Service and those to whom Client/Employer Logins and QB Logins have been given (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
Travis hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of the Agreement. All rights not expressly granted to you herein shall be reserved by Travis. This Agreement provides you a license to use the Service. You are aware that you are licensing the product, rather than purchasing the product outright.
Travis warrants that it is the true and lawful owner and/or licensing agent of the Service, together with any and all corrections, modifications, improvements, updates and new versions thereto and thereof, with full power and authority to license the same to Licensee as provided in the Agreement. Travis will hold harmless Licensee from and against any claims that are brought against WebCOBRA Customer should the warranty provided in the foregoing sentence be materially untrue.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) outsource use of WebCOBRA as a "service bureau", or functional equivalent, that provides non-Site Users access to WebCOBRA under your License; (iv) "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (v) reverse engineer or access the Service in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one User.
You are entitled to access WebCOBRA only during the term of this Agreement. You may utilize WebCOBRA for your own internal use or on behalf of your clients in the normal course of your business and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify the Service immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to the Service immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another WebCOBRA User or provide false identity information to gain access to or use the Service.
WebCOBRA is in no way a substitute for assistance from legal, tax, accounting, or other qualified professionals. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
Travis does not own any Customer Data, information or material that you submit to the Service in the course of using the Service. You, not Travis, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Travis shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event the Agreement is terminated (other than by reason of your breach), Travis will, upon your request (written or verbal), make available to you a file of the Customer-Entered Data within thirty (30) days of termination at the time of termination. Travis reserves the right to withhold, remove and/or discard Customer Data (including Letter Data) without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Travis shall have no obligation to maintain or forward any Customer Data.
Travis alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the WebCOBRA Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. The Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the WebCOBRA Technology or the Intellectual Property Rights of Travis. The WebCOBRA name, the WebCOBRA logo, and the product names associated with the Service are trademarks of Travis or third parties, and no right or license is granted to use them.
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. WebCOBRA and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Travis does not endorse any sites on the Internet that are linked through the Service. Travis provides these links to you only as a matter of convenience, and in no event shall Travis or its licensors be responsible for any content, products, or other materials on or available from such sites. Travis provides the Service to you pursuant to the terms and conditions of the Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
Before Travis grants or continues to grant you a License to use WebCOBRA, you shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms that are in effect at the time a fee or charge is due and payable, as provided on your Order Form. The initial charges will be equal to the current number of total User licenses requested multiplied by the applicable User license fee currently in effect and quoted on the Service Order Form, plus any optional modules quoted on the Service Order Form. Payments for the License Term are to be made quarterly, consistent with what you approved on the Service Order Form or as otherwise mutually agreed upon. You are responsible for paying for all User fees as ordered for the entire applicable License Term, whether or not such Services are actively used. You must provide Travis with valid payment via bank check or wire transfer. An authorized User may add User licenses by executing an additional written Order Form. Added Services, additional data storage, and User Licenses will be subject to the following: (i) added services, optional modules, or new users will be coterminous with the preexisting Term (either Initial Term or Renewal term); (ii) the fee for the added services, optional modules, or new users will be of the then current, generally applicable fees; (iii) services added in the middle of a billing month will be charged prorata for that billing month; and (iv) as discussed in Section 9, additional data storage fees, if any, are billed retrospectively and are determined on an average-of-use basis for each month. Travis reserves the right to modify its fees and charges for the Service, to become effective at the beginning of the next License Term, and to introduce new charges which notice may be provided by letter or e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
The maximum disk storage space provided to you at no additional charge for Customer Data is specified on the Service Order Form for the Edition of WebCOBRA subscribed to at the date of execution. Additional storage of Customer Data required by you that is over the maximum included disk storage space for your edition will be charged for each additional 1GB at the rates then in effect at the time your storage requirement arises. Additional data storage is determined retrospectively on an average-of-use basis and included on the quarterly Invoice following such determination. Travis will use commercially reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by Travis to so notify you shall not affect your responsibility for such additional storage charges. Travis reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
If you have subscribed to the "Enterprise Edition" of WebCOBRA, you may use the Archive Manager portion of the service to select data records which you no longer wish to access as part of your disk storage space, and those records, once archived, will no longer be included in the calculation of your disk storage space used. Fees for re-activation of previously archived records will be charged by Travis at its per-record rate in effect at the time of record re-activation.
Notwithstanding Section 9, Travis charges and collects in advance for use of the Service. Travis will issue an invoice to you each quarter or as otherwise mutually agreed upon for your then-current number of total User licenses multiplied by the fees in effect for each type of user, plus additional User licenses for which you have contracted since the immediately preceding quarter, and additional Customer Data storage charges for the previous quarterly period, if applicable. Prior to the expiration of the current License Term, if Travis seeks to extend your use of the Service, Travis will send you an invoice for the access fees during the first quarter of the new License Term, and the charges will be equal to the number of total User licenses multiplied by the fee per User currently in effect, plus additional Customer Data storage, any optional modules, and other charges, if applicable, and such renewal shall be effective immediately upon the expiration of the ending License Term. Fees for other services will be charged on an as-quoted basis. Travis' fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Travis' income. All amounts payable under this Agreement will be due thirty (30) days from the date of each invoice or Service Order Form, with past due amounts not otherwise disputed in good faith subject to additional late fees. Travis reserves the right to revise its charges and billing practices at any time without notice effective at the end of the term.
You agree to provide Travis with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within ten (10) days of any change to it. If the contact information you have provided is false or fraudulent, Travis reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Travis in its discretion determines otherwise, Users will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes. If you believe your bill is incorrect, you must contact us in writing within fifteen (15) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to Travis herein, Travis reserves the right to suspend or terminate (i) the Agreement, (ii) your access, (iii) all User login(s) to the Service if your account becomes delinquent (falls into arrears). An account is considered delinquent if payment for fees for the account is not received by Travis on or before three (3) calendar days after their due date. Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance which is more than five (5) days in arrears, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Travis initiates termination of this Agreement, you will be obligated to pay the balance owed on your account for the entire License Term, which will be computed in accordance with Section 10 and include additional data storage fees utilized during such License Term. You agree that Travis may bill you for such unpaid fees, and you agree to pay only fees so charged or billed.
Travis reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Travis has no obligation to continue your access to the Service and to Customer Data, and that, if your account is ten (10) days or more delinquent, Customer Data may be removed from the Service, and you also agree that Travis, at its sole discretion, may elect or not elect to allow you to reconnect to the Service if your usage is suspended. If Customer Data is removed from the Service, Travis will, upon request, provide you with a copy of Customer Data within thirty (30) days of such a request.
The Agreement commences on the Effective Date and will continue for a period of the Initial Term equal to one (1) year, which shall commence on the later of the date (i) you complete and deliver to Travis your Service Order Form or (ii) Travis receives your initial quarterly fee. The submission of your first payment thereby asserts that you agree to make payment during the period of the Initial Term and for any such additional terms as may be agreed pursuant to the Agreement. As long as you comply with the terms of this Agreement, Travis grants you a non-exclusive license to use WebCOBRA for the purposes described in the product documentation. Upon the expiration of the Initial Term, the Agreement will automatically renew for successive Renewal Terms either (i) equal in duration to the Initial Term at the Service's then current fees, or (ii) a longer term that is mutually agreed upon by both parties that is expressed in an Addendum to the Agreement, which will be based on the then current Service fees. In addition to Travis' rights granted in Section 11 of this EULA, and subject to your obligation to make payment during the period of the Initial Term of at least one (1) year, either party may terminate or reduce the number of licenses and/or logins, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the expiration of the current License Term. The License Term will automatically terminate if you fail to comply with any term or condition of this Agreement. In the event that the Agreement terminates, you remain obligated to pay for additional data storage used during the License Term, if any, and You will receive an invoice for any additional data storage fee owed for storage utilized prior to the Agreement's effective termination. If the Agreement is terminated (other than by reason of your breach), Travis will, upon your request (written or verbal), make available to you an electronic file of the Customer-Entered Data within thirty (30) days of termination upon the receipt of your request delivered to Travis at the time of termination. Travis may, but is under no obligation to provide, at the time of termination, an electronic file of your Letter Data upon request (written or verbal) and Travis may impose a fee for such request. You agree and acknowledge that Travis has no obligation to retain the Customer Data, and may delete such Customer Data, upon the expiration of thirty (30) days following termination, or as otherwise herein provided. Termination in no way entitles you to a refund. Upon your default in the payment of any money due under the Agreement or upon your breach of any term or condition of the Agreement, Travis shall have the right, but not the obligation, in its sole discretion, to accelerate the due date of any payments due under the Agreement.
Any breach of your payment obligations or unauthorized use of the WebCOBRA Technology or Service will be deemed a material breach of the Agreement. Travis may, in its sole discretion, may terminate your right to access or use the Service, including the termination of your password(s), account information if you breach or otherwise fail to comply with the Agreement. Termination in no way entitles you to a refund. If termination occurs, Travis may recover, in addition to any rights and remedies, the sum of (i) unpaid charges outstanding, (ii) the applicable charges through the end of the License Term of the Agreement, and (iii) reasonable attorneys' fees. All remedies provided to Travis in the Agreement are cumulative and Travis shall not be subject to election of remedies.
Each party represents and warrants that it has the legal power and authority to enter into the Agreement. Travis represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will be available substantially in accordance with the WebCOBRA Service Level Availability Statements as found in the WebCOBRA website under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall defend, indemnify and hold harmless, Travis, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all actions, causes of action, claims, suits, and demands whatsoever, and from all costs, damages, charges, debts, fines, government investigations, proceedings, losses, liabilities and expenses whatsoever, (including attorneys' fees and costs related to any litigation or other defense of any claims) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of the Agreement, provided in any such case that Travis (A) gives written notice of the claim promptly to you; (B) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Travis of all liability and such settlement does not affect Travis' business or the Service); (C) provides to you all available information and assistance; and (D) has not compromised or settled such claim.
Travis shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Travis of its representations or warranties; or (iii) a claim arising from breach of the Agreement by Travis; provided that you (A) promptly give written notice of the claim to Travis; (B) give Travis sole control of the defense and settlement of the claim (provided that Travis may not settle or defend any claim unless it unconditionally releases you of all liability); (C) provide to Travis all available information and assistance; and (D) have not compromised or settled such claim. Travis shall have no indemnification obligation, and you shall indemnify Travis pursuant to the Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s), where the Service would not have otherwise infringed on its own. Travis will not be responsible for performance problems due to circumstances beyond its control. THE FOREGOING STATES THE ENTIRE LIABILITY OF TRAVIS AND YOUR SOLE REMEDY FOR INFRINGEMENT OR FOR ANY BREACH OF WARRANTY OF NON-INFRINGEMENT, EXPRESS OR IMPLIED.
TRAVIS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY EITHER EXPRESS OR IMPLIED, AS TO THE RELIABILITY, TIMELINESS, QUALITY, PERFORMANCE, MERCHANTABILITY, FITTNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. TRAVIS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TRAVIS AND ITS LICENSORS. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICE. TRAVIS SALESPERSONS OR OTHER PERSONNEL MAY HAVE MADE STATEMENTS ABOUT THE SERVICE, BUT ANY SUCH STATEMENT DOES NOT CONSTITUTE A WARRANTY AND WILL NOT BE RELIED ON BY YOU IN DECIDING WHETHER TO PURCHASE A LICENSE FOR THE SERVICE.
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TRAVIS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TRAVIS AND ITS LICENSORS EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE LICENSE TERM IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER TRAVIS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, INACCURACY, ERROR OR OMISSION, OR THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY INTERRUPTION OF THE SERVICE, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. Users of this site ("USERS") or a person utilizing this site via a "Client/Employer Login" or "QB Login" acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
Travis and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
Travis may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Travis' account information, or by written communication sent by first class mail or pre-paid post to your address on record in Travis' account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to Travis (such notice shall be deemed given when received by Travis) at any time by any of the following: letter sent by confirmed facsimile to Travis at the following fax numbers (whichever is appropriate): [281-496-4022]; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Travis at the following addresses (whichever is appropriate): Travis Software Corp., 1155 Dairy Ashford Road, Houston, Texas 77079 addressed to the attention of: President.
Nothing express or implied in the Agreement confers the right to sell, assign, disclose, sublicense, transfer, furnish or redistribute your interests in the Service to any other person, firm, corporation, or entity without the prior written approval of Travis and any such assignment must be signed by both parties. You may not permit any other party to use the Service for any illegal purposes. Any transfer may be subject to a transfer fee, as determined on an individual basis in Travis' sole discretion. Notwithstanding the previous sentence, Travis reserves the right, in its sole discretion, to assign or transfer its rights in this Agreement to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
The Agreement shall be governed by Texas law and, if applicable, any controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Houston, Texas. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of the Agreement. Travis reserves the right to modify the terms and conditions of the Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of the Agreement on the Service. You are responsible for regularly reviewing the Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Travis as a result of the Agreement or use of the Service. The failure of Travis to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Travis in writing. The Agreement, together with any applicable Order Form, comprises the entire agreement between you and Travis and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Time is of the essence of the Agreement.
During this Agreement negotiation process and subsequent term of this Agreement and thereafter, except as specifically provided herein and/or to the extent reasonably necessary to perform its obligations or exercise or enforce its rights hereunder, neither party shall provide or disclose to any third party, or itself use, unless authorized in writing to do so by the other party or properly directed or ordered to do so by public authority, any information or matter that (i) constitutes or concerns this Agreement negotiation process and/or terms and conditions of this Agreement, (ii) is provided to it by the other party hereunder or as a result hereof, or (iii) regards any dealings or negotiations with the other party related to this Agreement. Except with respect to information or matter constituting or concerning the terms and conditions of this Agreement or regarding any dealings or negotiations between the parties hereunder, the parties will have no confidentiality obligation under this Section 24, with respect to any information or matter specified herein that (i) is already known to them, (ii) is rightfully disclosed to them by a third party that is not acting as an agent or representative for the other party, (iii) is independently developed by or for them, (iv) is publicly known, or (v) is generally utilized by unaffiliated third parties engaged in the same business or businesses as the parties. Any party claiming an exception to this Section 24 hereof shall have the burden of proving the basis for the exception. The parties shall follow the same procedures to insure their compliance with the requirements of this Section 24 hereof as they follow to protect their own confidential and proprietary information and matter of a similar nature.
Except as otherwise specified herein, Travis may use or disclose PHI to fulfill the obligations of Travis under the Agreement. All other uses not authorized by the Agreement are prohibited, unless agreed to in writing by WebCOBRA Customer or unless required by law. Unless otherwise limited herein, Travis may (i) use the PHI in its possession for its proper management and administration related to the Agreement and to carry out the present and future legal responsibilities of Travis each as related to activities performed pursuant to the Agreement, provided that such uses are permitted under state and/or federal confidentiality law; (ii) disclose PHI for the proper management and administration, or to fulfill present or future legal responsibilities of Travis, provided that such disclosure is either Required By Law or Travis obtains reasonable assurances from any person to whom the PHI is disclosed that: (A) it will remain confidential, (B) any use or further disclosure shall be limited to the purpose for which it was disclosed to such person or as Required By Law, and (C) WebCOBRA Customer will be notified of any instances of which it is aware that the confidentiality of the information has been breached; (iii) use PHI to provide data aggregation services related to the healthcare operations of WebCOBRA Customer as permitted by 45 CFR §164.501; (iv) use PHI to report violations of law to appropriate federal and state authorities, consistent with 45 CFR §164.502(j)(1) and any regulations under ARRA; and (v) create de-identified data, provided that Travis de-identifies the information in accordance with the Privacy Rule.
Except as otherwise specified herein, Travis shall:
Travis acknowledges and agrees that, to the extent there is at any time any conflict between the term of the Agreement and the obligations of Travis and WebCOBRA Customer under relevant law, including HIPAA, such law shall prevail and shall govern Travis and User and their obligations under the Agreement, as well as the interpretation of the Agreement. For further information regarding Travis' agreement to protect the confidentiality and security of PHI, please refer to the "Notices of Policies and Procedures."
User shall: (i) provide Travis with the notice of privacy practices, which WebCOBRA Customer produces in accordance with HIPAA, including 45 C.F.R. §164.520, as may be amended from time to time, as well as any changes to such notice; (ii) notify Travis of any restriction to the use or disclosure of PHI that WebCOBRA Customer has agreed to, in accordance with HIPAA, including 45 C.F.R. § 164.522, as may be amended from time to time; and, (iii) WebCOBRA Customer shall provide Travis with any changes in, or revocation of, permission given by an individual's PHI, if such changes affect Travis' permitted or required uses disclosed under the Agreement.