“Applicable Law” means rules, ordinances, statutes, laws and regulations governing the parties' obligations under this Agreement. The scope of this definition shall not be extended by virtue of the laws and regulations that are covered by the Product’s assessments and law overview content.
“Confidential Information” means material or information proprietary to either Party or designated as “Confidential” and not generally known by third parties. Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): discoveries; ideas; concepts; software in various stages of development; marketing techniques and materials; marketing and development plans and procedures; customer, Employee, and member names, addresses, telephone numbers, and other information related to customers, Employees, and members; price lists; pricing policies; and financial information. Confidential Information also includes any information described above which either Party obtains from a third party or is jointly developed by the Parties and which either Party treats as proprietary or designates as confidential.
“Disclosing Party” shall mean the party disclosing Confidential Information.
“Employee” means an employee of a Party, its subcontractors’ or suppliers’ employees, or its agents.
“End Users” mean Customer’s employees, agents, third parties having a relationship with Customer, or independent contractors retained by Customer to provide services for Customer’s benefit. End Users may only interact with the Product using Web Incident Submission Forms.
“Web Incident Submission Forms” are a feature of the Product designed to enable End Users to document and report incident details when new incidents are detected by the End Users.
“Intellectual Property” shall mean to the extent that any of the following are recognized in any jurisdiction worldwide:
“Party” means RADAR or Client or Client’s Permitted Affiliates.
“Permitted Affiliates” shall mean any companies that are affiliated with the Customer to the extent that such companies are specified as such in the Subscription Form.
“Product” means the RADAR product (the “Product”), which is an online decision support software for managing data incidents and disclosures as required by federal and state regulations. The Product is a platform designed to perform incident management including regulatory incident risk assessment, notification guidance, documentation, and reporting required to support Customer’s compliance with HIPAA-HITECH, GLBA, State breach notification laws and other regulatory or contractual data protection obligations and standards that the Product specifically references as a body of law. For purposes of this Agreement, the meaning of Product is limited in scope to the jurisdictions and content included with the Customer’s license, as set forth on the Subscription Form.
“Professional Services” means any services provided by or through RADAR as set forth in a Statement of Work, not including the RADAR software as a service or support or training services therefor.
“Recipient” means the party receiving Confidential Information from the Disclosing Party.
“Registered Users” means End Users that have been provisioned with login credentials to the Product and are authorized for use of the Product functionality, which includes Web Incident Submission Forms.
“Statement of Work” means a mutually-executed document incorporating this Agreement by reference and describing any Professional Services purchased hereunder, each of which shall contain a detailed description of the Professional Services and any related deliverables, a timeline for performance of the Professional Services and delivery of any deliverables, acceptance criteria for the deliverables, and all related fees.
“Updates” means all revisions, updates, upgrades, modifications, corrections, releases (to include all point, minor and major new releases), versions, fixes, program temporary fixes, replacement products, revised documentation, and enhancements to the Product..
“Use” means to access, or otherwise benefit from the Product.
“User” means either a Registered User or an End User.
“User Data” means all data entered into or output from the Product by a User.
“Website” means the RADAR website at www.radarfirst.com and does not include the RADAR web application, also known as the Product.
2.1 The Product supports Customer’s policies and operational decision support needs while providing non-prescriptive guidance with respect to Customer’s decision whether an incident is a data breach and whether to notify affected individuals and report an incident to federal, state, credit reporting agencies and customer’s clients if required through contractual agreements. Customer makes the final choice and decision whether an incident is a data breach and any notification and reporting requirements, which may result from such an incident. The Product does not offer any legal advice, opinions, or counsel. Customer may license the Product in various combinations of available features and options. The scope of the Product features and add-on product capabilities licensed by Customer are described in the Subscription Form.
2.2 Through the Product, RADAR has made commercially reasonable efforts in quantifying risk, interpreting and applying laws and regulations and associated notification rules, including data breach definitions, exceptions, and notification requirements to assist Customer in performing a consistent and reproducible risk assessment as defined by competent regulatory authorities, and to help comply with Customer’s burden of proof obligations under these regulations.
3.1 RADAR grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use the Product for Customer’s normal internal business. This license is subject to the terms, conditions, and restrictions contained in this Agreement.
3.2 All materials contained in the Product or on the Web Site are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of RADAR, Inc., or in the case of third party materials, the owner of that content. You may not alter or remove any trademark, copyright or other notice from copies of the content.
This Agreement becomes effective as of the Effective Date and will continue in effect for the period as set forth in the Subscription Form (“Term”).
4.2 Termination for Cause
Either Party may terminate this Agreement for cause:
4.3 Early Termination
If this Agreement is terminated prior to the expiration of the agreed upon Term, either by Customer for its convenience and with written notice to RADAR or by RADAR with written notice to Customer for Customer’s material breach of this Agreement, Customer is not entitled to any refund for prepaid fees and Customer shall pay RADAR any remaining balance owed, if any, to the end of the current licensing term as set forth in the applicable Subscription Form. If this Agreement is terminated prior to the expiration of the agreed upon Term by Customer for cause, as set forth in Section 4.2 above, then Customer shall be entitled to a refund of any prepaid but unused fees hereunder.
4.4 Effect of Termination
Upon termination or expiration of this Agreement, all User Data entered by Customer will be made available to Customer for downloading. RADAR will retain electronic User Data in compliance with applicable law, such as HIPAA-HITECH, GLBA, and states’ incident data retention guidelines and also accommodate Customer’s reasonable requests for retention of User Data for a longer period of time. Upon Customer’s written request, RADAR will purge Customer’s User Data. RADAR agrees to provide reasonable assistance in migrating data as requested by Customer for a period of up to sixty days, the details of which assistance shall be as agreed by the Parties in writing.
The rights, obligations, and conditions set forth in Sections 4.3 (Early Termination) and 4.4 (Effect of Termination), this Section 4.5 and Sections 7 (Ownership), 11 (RADAR Representations and Warranties), 13 (Limitation of Liability), 14 (Indemnification), 15 (Confidential Information), 17.4 (Publicity), 17.5 (Attorneys’ Fees), 17.8 (Cumulative Remedies), 17.9 (Equitable Relief), 17.11 (Waiver), 17.12 (Governing Law and Venue), 17.13 (Severability) and 17.14 (Entire Agreement) shall survive any expiration or termination of this Agreement.
5.1 Commencing upon the date of delivery, RADAR shall automatically provide to Customer any Updates as soon as such Updates have been made available to any of RADAR’s other customers. Such Updates shall not degrade the performance, functionality, or operation of the Product.
5.2 Modification of Product
RADAR may modify, replace, or make additions to the Product, provided there is no diminution in the performance or operation of the Product.
6.1 Invoices & Payment
RADAR will invoice Customer, and Customer will pay RADAR, the amount specified on the applicable Subscription Form for the Product and Professional Services performed thereunder. Customer agrees to pay any sales, value-added, or other similar taxes imposed by applicable law that RADAR must pay based on such Product or Professional Services, except for taxes based on RADAR income or personnel. Unless otherwise agreed by the parties, all undisputed Product subscription fees shall be paid within 30 days of the receipt of an invoice. RADAR reserves the right to disable Customer Access if any undisputed invoice is not paid within 60 days of receipt and may, in its sole discretion, determine whether such nonpayment or delay of payment is a material breach.
7.1 The Product, any Intellectual Property arising from Professional Services not described in the related Statement of Work, and all Intellectual Property rights related to the Product are the sole and exclusive property of RADAR. All title, ownership and Intellectual Property rights in and to the Product, any enhancements, modifications, translations, or derivatives of the Product, any copies thereof, any associated Documentation, are owned by RADAR. Customer expressly acknowledges that no material created under this Agreement the Product is Work for Hire under applicable federal law unless specifically designated as such in a Statement of Work..
7.2 Customer Retention of Rights
Without limiting the generality of Section 7.1, all User Data shall remain the sole and exclusive property of Customer. All User Data is considered confidential and shall remain confidential to Customer. Customer grants RADAR a non-exclusive license to use all User Data solely to the extent required to perform its obligations under this Agreement.
7.3 Anonymous Incident Metadata
RADAR may use anonymized incident metadata (ie. in a format that in no way identifies incident metadata as Customer’s or in any way connects incident metadata to Customer) and in aggregate with other customers’ incident metadata to improve the validity and capabilities of the Product, to provide trending and other reports regularly to customers (including Customer), and for general research reports on the nature of incidents, leading causes of incidents, incident categories, and incident remediation with an intent to educate and provide benchmarking data to others about best practices in incident management and response.
8.1 As a condition of Customer’s use of the Product, Customer agrees that it will not:
8.2 As a condition of Customer’s use of the Product, Customer agrees to take all reasonable steps and precautions to prevent any unauthorized person or entity from gaining access to the Product.
9.1 To use the Product, each Registered User must select and use a valid user ID and password or use the Product’s delegated authentication feature for secure access to the Product. Customer is responsible for maintaining the confidentiality and security of all of Customer’s login credentials. Customer shall be responsible for all activity by Registered Users or End Users authorized by Customer or occurring under Customer’s login credentials. Customer agrees to immediately notify RADAR upon becoming aware of any unauthorized use of or access to any of Customer’s login credentials or Web Submission Forms. If a Registered User ceases to be an Employee or authorized agent of Customer or is assigned different responsibilities, Customer may deactivate such Registered User’s access to the Product and give Product access to a new Registered User without exceeding the number of Customer’s purchased active Registered User licenses.
10.1 RADAR reserves the right, at its sole discretion, at any time during the Term of this Agreement, to investigate Customer’s use of the Product solely to ensure Customer’s compliance with this Agreement.
11.1 RADAR will provide the Product and Professional Services in a professional manner consistent with general industry standards and practices.
11.2 RADAR will always comply with all applicable federal laws, codes, and regulations of the United States and the laws and regulations of any state or local jurisdiction in which it acts or which is applicable to the User Data.
11.3 RADAR will employ commercially available and reasonable security measures and practices, but does not warrant that access to the product will be uninterrupted and error free.
11.4 RADAR warrants and represents that (i): it has the right to furnish the Product and perform the Professional Services as specified in this Agreement; and (ii) the Product, materials, and Professional Services furnished by RADAR covered hereunder are free of all liens, claims, encumbrances, and other restrictions.
11.5 RADAR warrants and represents that as of the Effective Date, there are no actual, threatened, or pending legal actions of which it is aware which may have an adverse effect on RADAR performance under this Agreement.
11.6 RADAR warrants and represents that the Product shall in all material aspects perform substantially in accordance with RADAR product description applicable to the version of the Product provided to Customer hereunder and such other warranties, descriptions, and specifications set forth in the Agreement or included in the Product documentation. In the event of substantial non-conformity or defect in the Product, RADAR shall use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any such errors or defects to bring the software into conformance with the stated functionality in a timely manner. If such modifications or fixes cannot be implemented, Customer shall be entitled to a refund of any prepaid but unused fees for the Product, and shall be relieved of any further payment obligations therefor. RADAR is not responsible for problems caused by changes in, or modifications made to, the Product by Customer or use of the Product inconsistent with the documentation therefor or the restrictions in this Agreement.
11.7 While the Product does not require the disclosure of PII or PHI to perform its function, RADAR warrants that all PII and PHI (as defined under HIPAA) and other personal data of third party individuals, should there be any in any form, is stored within the United States.
12.1 EXCEPT AS OTHERWISE SET FORTH IN SECTION 11 OF THIS AGREEMENT: (i) RADAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, FOR THE PRODUCT AND ANY ASSOCIATED DOCUMENTATION AND PROFESSIONAL SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT OR ASSOCIATED DOCUMENTS AND PROFESSIONAL SERVICES, (ii) THE PRODUCT AND ANY ASSOCIATED DOCUMENTATION OR PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, and (iii) EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, THE ENTIRE RESPONSIBILITY FOR AND RISK ARISING OUT OF THE SELECTION, USE, OR PERFORMANCE OF THE PRODUCT REMAINS WITH CUSTOMER.
13.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, OR THE PROVISION OF PROFESSIONAL SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 IN NO EVENT SHALL RADAR’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID OR PAYABLE TO RADAR HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITY.
14.1 RADAR shall defend, indemnify, and hold harmless Customer and each of its officers, directors, agents, contractors, subcontractors, and Employees from and against any and all third-party claims, liabilities, damages, fines, penalties, or costs (including reasonable attorney's fees), whether by reason of death of or injury to any person or loss of or damage to any tangible or intangible property (including the loss of Customer User Data) or otherwise, arising out of or resulting from any material breach by RADAR of its obligations under this Agreement or any infringement of a patent, a trade secret, or any copyright, trademark, service mark, trade name, Intellectual Property, or similar proprietary rights conferred by statute, by common law, or by contract, alleged to have occurred as a result of RADAR provision of the Product or Professional Services, unless such liability results from written product specifications by Customer.
The Recipient may be given access to the Disclosing Party’s Confidential Information.
15.2 Disclosure and Use
The Recipient will protect the Disclosing Party's Confidential Information and will only use the Confidential Information as needed to carry out the provisions of this Agreement and will only disclose Confidential Information to persons who have a “need to know” the Confidential Information to carry out the provisions of this Agreement. The Recipient will apprise said persons of the confidentiality obligations and ensure that they comply with the terms of this Agreement. The Disclosing Party shall require (or shall have required) each individual providing services under this Agreement to sign a written confidentiality agreement. The Recipient will notify the Disclosing Party as soon as possible of any misuse of or unauthorized access to Confidential Information of which it becomes aware and will cooperate in remedying such situation promptly. The Recipient may disclose Confidential Information if required to be disclosed by a court order or operation of law. Before disclosing any Confidential Information of the Disclosing Party under court order or operation of law, the Recipient shall provide the Disclosing Party reasonable notice and the opportunity to object to or limit such disclosure.
Confidential Information will not include information that can be demonstrably evidenced through documentation:
RADAR procures and maintains insurance at its own expense, will provide Customer with certificates of such insurance and a summary of insurance coverage limits upon request.
Any notices under this Agreement shall be in writing. Notices shall be directed to the addresses set forth in the Subscription Form, unless otherwise agreed in writing, and shall be deemed effective upon receipt (or if delivery is refused, on the date of such refusal). Either Party may, from time to time, change its address or email address for notices by providing written notice of such change to the other Party.
17.2 Relationship of the Parties
The Parties agree that each is being engaged as an independent contractor. Nothing in this Agreement, or any action taken by any Party, shall create any agency, employment, partnership, association, syndicate, fiduciary, or joint venture relationship between the Parties or the Parties’ representatives. No Party shall have the authority to act for or on behalf of the other or to represent the other in any transaction. Each Party shall be solely responsible for its representatives, regardless of where such representatives are located.
17.3 Third-Party Beneficiaries
This Agreement is for the sole benefit of the Parties hereto and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person, including without limitation, any Business Associates, service providers, subcontractors, sub-vendors, or anyone designated as a reseller.
Customer and RADAR may, upon mutual agreement and Customer’s prior written approval, provide for joint publicity and/or marketing and promotional activities.
17.5 Attorneys’ Fees
If any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be, in addition to any other relief it may receive, entitled to recover from the other Party its reasonable attorneys’ fees and costs incurred in connection therewith.
17.6 Regulatory Changes
A Party shall provide prompt written notice to the other Party of any regulatory, arbitration, or litigation matters that arise, pending or active, which may affect the Party’s ability to perform under this Agreement. Notice shall be given no later than thirty (30) days after the Party becomes or should have become aware of such matters. This section shall not be interpreted to imply any additional warranties with respect to Product insofar as it incorporates laws and regulations to provide assessments and law overviews.
17.7 Legal Compliance
Both Parties are and shall remain in material compliance with all Applicable Law.
17.8 Cumulative Remedies
Except as expressly provided herein, the rights and remedies of each Party under this Agreement are cumulative, and are in addition to all other rights and remedies available at law or in equity.
17.9 Equitable Relief
Each Party recognizes that any actual or threatened breach of this Agreement may cause irreparable harm to the other Party, the extent of which would be difficult and impractical to assess, and that money damages would not adequately remedy such breach. Accordingly, in addition to all other remedies available under the circumstances, a Party shall be entitled to seek immediate equitable relief in any court of competent jurisdiction.
Neither party may assign or otherwise transfer this Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, to any third party without the prior written consent of the other party; provided, however, that a party may upon written notice to the other party (i) assign this Agreement to any entity that acquires all or substantially all of such party’s assets or its business that is the subject hereof, or (ii) assign this Agreement to any entity that is owned by such party.
No right of a Party or breach by the other Party of any provision hereunder shall be waived by any act, omission, delay, or knowledge of a Party, except by a written document executed by a duly authorized representative of the waiving Party. Any waiver on one occasion shall not constitute a waiver of any prior, concurrent, or subsequent occasion. Except as otherwise set forth in this Agreement, the failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall not operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.12 Governing Law and Venue
This Agreement shall be governed by the laws of the State of Oregon regardless of any choice of law principles that would require the application of the laws of a different jurisdiction. A court in the County of Multnomah, Oregon, shall be the only proper venue for any disputes that arise under this Agreement.
If any provision of this Agreement is determined to be invalid or unenforceable under Applicable Law, the provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under Applicable Law, and the remaining provisions of this Agreement shall continue in full force and effect.
17.14 Entire Agreement
This Agreement (including the Subscription Form and any Statements of Work), and any other documents referenced in the Subscription Form or attached thereto or hereto as an exhibit, reflect the entire agreement between the parties and supersede any prior or contemporaneous agreements, communications, or understandings (whether written or oral). In the case of any conflict between the terms of this Agreement and a Statement of Work or any exhibit attached hereto or otherwise incorporating this Agreement by reference, the terms of this Agreement shall control, unless such other document explicitly modifies this Agreement with reference to each specific section being modified.
17.15 Subcontractors. RADAR may not subcontract the provision of all or any part of the Professional Services without Customer’s prior written consent.