THIS PREMIUM SERVICES ADDENDUM (“Addendum”) made as of the ____ day of _______, 20___ (“Effective Date”) between you ___________________ (“Customer”) and CAREDOVE INC. (“Caredove”) is intended to supplement the Caredove Terms and Conditions of Use available on the Caredove website at www.caredove.com/legal (“Terms”). To the extent that this Addendum is not consistent with the Terms, the terms of this Addendum shall apply.
NOW THEREFORE THIS ADDENDUM WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, and other goods and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1 “Customer Materials” means all media, content, documentation, data, images, text, software, web pages, artwork, trademark, tradenames, logos, sound, graphics, video, files and other material, however stored and/or encoded, that is supplied by the Customer to Caredove for the purposes of performing the Premium Services.
1.2 “Deliverables” means all Work Product that Caredove is required to provide under any Order Form to deliver to the Customer as part of the Premium Services.
1.3 “Order” or “Order Form” means the Caredove approved form or online subscription process by which the Customer agrees to subscribe to the Premium Services. The Order may be also titled an “Invoice”. Where the Customer is only purchasing Professional Services the Order may be a “Statement of Work”. Note: Most Orders will be Invoices and will be attached to, or reference, this Premium Service Agreement.
1.4 “Specifications” means the written description of particulars, specifications and performance criteria for the Deliverables that are set out in an Order Form attached hereto.
1.5 “Work Product” means software (including object and source code), computer system designs, documentation, inventions (whether or not patentable or reduced to practice), developments or like materials, trade secrets, data, processes, methods, improvements or enhancements that Caredove makes, conceives, or devises, either solely or jointly with the Customer, in the course of Premium Services performed under any Order Form. Work Product includes the related Specifications. WORK PRODUCT SPECIFICALLY EXCLUDES SOFTWARE OWNED OR LICENSED BY CAREDOVE, ANY PRE-EXISTING, THIRD PARTY OR OPEN SOURCE MATERIAL.
1.6 Capitalized Terms. Capitalized terms not defined herein shall ascribe their meaning from the Terms.
2.1 Premium Services. Subject to the payment of the Fees, the Customer shall receive one or more of the following premium services as indicated in an Order Form that may be attached to this Addendum (“Premium Services”):
(a) Caredove Calendar Service – Access and use of a specified number of Caredove Calendars for a specified number of Users;
(b) Network Administrator Service – Access and use of the Network Administrator Service for a specified number of Network Administrators;
(c) Integration Maintenance Service – Access to, and maintenance of, an integration through Caredove’s application programming interface; and
(d) Professional Services – Design, implementation and configuration services.
2.2 Performance. Caredove shall perform the Premium Services in accordance with this Addendum and the applicable Order Form(s), and in a diligent and professional manner.
2.3 Customer Materials. The Customer hereby grants to Caredove a non-exclusive, royalty-free, non-transferable, limited right to use (during the term outlined on the Order Form) any Customer Materials provided to Caredove solely to perform Services pursuant to this Addendum. The parties agree that this grant of rights is expressly made subject to Caredove’s confidentiality obligations set forth in the Terms, any other restrictions specified in the applicable Order Form.
2.4 Acceptance. Where an Order Form contemplates the development of Deliverables, the Customer shall have a period of time to review and accept the completed Deliverables (or such other period specified in the applicable Order Form), and Caredove shall have a period to remedy any deficiencies identified by the Customer (such period to be as specified in the applicable Order Form, or a reasonable period if no period is specified). The Customer shall provide Caredove prompt notice of any deficiencies identified by the Customer. If the Customer does not give written notice of any deficiencies within such period, it shall be deemed to have accepted the Deliverables.
3.1 Fees. The Fees charged for the Premium Services will be as described on the Site at the time of an order being submitted and as confirmed in the Order Form, attached to this Addendum. Caredove reserves the right to amend the Fees for existing Customers upon providing such Customer with sixty (60) days prior written notice. Fees will be paid in advance for the Term specified on the Order Form. Caredove will not refund any Fees paid for Premium Services.
3.2 Invoices and Payments. Caredove shall invoice the Customer for the Premium Services to be provided as outlined on the attached Order Form, and the Customer shall pay such invoices within thirty (30) days of receipt (or such other time as is specified in the Order Form). All payments shall be made to Caredove prior to the start of the term. The Order Form may also indicate set-up, monthly or annual fees for certain Premium Services. Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of 1.5% per month on overdue amounts and interest thereon.
3.3 Expenses. In the event that the Order Form provides for the payment by the Customer of any travel, accommodation, transportation and other incidental expenses which are incurred by Caredove while performing its obligations with respect to that Order Form, the Customer shall pay such expenses after the Customer receives an invoice therefor.
3.4 Taxes. The Customer is responsible for all sales, use, consumption, value added, goods and services and similar taxes which are based upon its acquisition or use of the Premium Services to be provided under this Addendum.
4.1 Representations and Warranties of the Customer. The Customer represents and warrants that its use of the Premium Services (including the provision of any licensed Customer Materials to Caredove) will be consistent with this Addendum, the Terms, and that any licenses provided will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law.
5.1 Term. The term of this Addendum (“Term”) shall be specified in Order Form and such Term shall automatically renew for successive equivalent terms (“Renewal Terms”) unless terminated in accordance with the terms of this Addendum.
5.2 Termination for Convenience. Subject to the terms of an applicable Order Form, either Party may terminate this Addendum and the Premium Services provided under any Order Form herein for any reason by giving thirty (30) days written notice to the other Party prior to the expiry of the then current Term or Renewal Term.
5.3 Insolvency. Either Party may immediately upon written notice terminate this Addendum in the event the other Party:
(i) suspends or ceases conducting business in the normal course, (ii) becomes insolvent, (iii) makes a general assignment for the benefit of creditors,
(iv) suffers or permits the appointment of a receiver, receiver and manager, or interim receiver, for its business or assets,
(v) avails itself of, or becomes subject to, any proceedings under any other statute of any federal government, province or state relating to bankruptcy, insolvency, reorganization, moratorium, arrangement of debt or the protection of rights of creditors, or
(vi) makes any proposal, arrangement or compromise with its creditors under applicable bankruptcy or insolvency legislation.
5.4 Breach. Either Party may immediately upon written notice terminate this Addendum in the event the other Party fails in any material respect to perform its obligations under this Addendum and the failure continues for a period of ten (10) days after the other Party receives written notice of the failure. If the breach is corrected within the applicable notice period, this Addendum continues in full force and effect, without limitation of any right to damages resulting from the breach.
5.5 Termination Obligations. Upon termination of this Addendum or any Order Form for any reason, the Customer shall pay any fees for Services that are outstanding. If necessary, Caredove shall pro-rate the value of the Services and invoice the Customer on the basis of the percentage of the Services outlined in the applicable Order Form(s) that have been completed. In addition, each Party shall promptly deliver to the other all papers, databases, documents, software programs, and other tangible items (including all copies) constituting the other Party’s Confidential Information in its possession or under its control, or on request destroy such materials and certify that it has done so.
6.1 Unforeseen Circumstances. Except as expressly provided otherwise in this Addendum, dates and times by which the Customer or Caredove is required to perform under this Addendum or an Order Form (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Customer or Caredove, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a Party). The following events are deemed to be outside of a Party’s reasonable control: acts of God, acts of government, acts of war: civil or military unrest, acts of public enemies, epidemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact, and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The Parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form would have put in place contingency plans to either materially mitigate or negate the effects of such event. A Party seeking to rely on this Section must:
(i) notify the other Party immediately and in detail of the anticipated or actual commencement of and the cause of postponement;
(ii) notify the other Party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and
(iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available. The provisions of this section do not preclude the Customer from terminating a Order Form, if the delay is experienced by Caredove and extends for more than thirty (30) days.
6.2 Entire Agreement. This Addendum includes all Order Forms relevant to the Premium Services. This Addendum and the Terms constitute the entire agreement between the parties with respect to the provision of the Premium Services and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever, whether oral or written, unless they are expressly incorporated by additional reference in the Addendum.
6.3 Survival. Any Terms and conditions of this Addendum which by their nature extend beyond the termination of this Addendum shall survive such termination.
6.4 Independent Contractors. Each Party’s relationship with the other Party will be that of an independent contractor. Nothing in this Addendum is to be construed as designating either Party as an agent, employee, joint venture or partner of the other Party.
6.5 Counterparts. This Addendum and any Order Form may be executed in counterparts, each of which is deemed to be an original and all of which together are deemed to be one and the same instrument. The delivery of a facsimile or electronic copy of an executed counterpart of this Addendum shall be deemed to be valid execution and delivery of this Addendum, but the Party delivering a facsimile or electronic copy shall deliver an original copy of this Addendum as soon as possible after delivery of the facsimile or electronic copy.
IN WITNESS WHEREOF this Addendum has been executed by the parties as of the date first written above.
Last updated August 28, 2020