By executing an Order with Verifiable Inc. (“Verifiable”) that references these Terms of Service (“Terms”) or using the Services, Customer agrees to and accepts these Terms. The individual executing the Order on behalf of Customer represents that they have the authority to enter into the Agreement on behalf of Customer. If Customer does not accept these Terms, then it may not use the Services. “Customer” means the legal entity on whose behalf you’re entering into these Terms.
1. Agreement. “Agreement” refers to, collectively, these Terms (including any data processing addendum, SLA or other exhibits, addenda, amendments, or Statements of Work attached hereto or later signed by both parties and referencing these Terms) and any applicable “Order” (meaning, Verifiable’s ordering document or online form used to purchase Services signed by both parties). The Agreement applies to Verifiable services that Customer purchases or otherwise acquires the right to access or use, which may include Subscriptions, any Verifications or Verified Data provided through the foregoing, CVO services, professional services, and other Verifiable offerings (collectively, “Services”). Affiliates of either party may place orders under these Terms by signing an Order.
2. Term. The Agreement begins at the start of the first Order and continues in effect so long as any Order remains in effect, unless earlier terminated as specified herein (“Term”). If Customer accesses or uses the Services prior to the start of an Order, such access or use is subject to the Agreement. Each term of an Order, i.e., each period during which Customer may use access Services pursuant to an Order (the “Order Term”), begins as specified in the Order and continues for the term stated in the Order, unless sooner terminated as specified herein. Any Services not accessed or used during an Order Term expire at the end of such Order Term. Each Order Term automatically renews for successive periods of equal length thereafter, unless either party provides written notice of its intent not to renew the Order Term at least 60 days prior to the end of the then-current Order Term.
3. Subscriptions. During the Term, subject to the terms and conditions of the Agreement, Verifiable grants to Customer a limited, non-exclusive, non-transferrable (except in connection with an assignment permitted under Section 18.2), non-sublicensable license during the applicable Order Term to access and use the Subscriptions set forth in one or more Orders, including the Services requested by Customer through the Subscription, solely for Customer’s own internal business purposes by Users (and for Verifications, solely for the purpose for which the Verification was obtained), and except for the limited licenses granted hereunder, Verifiable reserves all rights not expressly granted. With respect to Verifications provided through a Subscription, Verifiable will process new Verifications for each Provider, and provide those Verifications to Customer through the Subscription’s user interface promptly following receipt of Customer’s requested Verification. The Unit Allotment for Subscription Services is the minimum number of Units (as defined in the Order) Customer is purchasing for the Fees set forth in the Order.
3.1 SLA and Documentation. Subscriptions will, when operated according to Documentation and other instructions, conform to and perform in accordance with the Documentation in all material respects, and be provided at the levels specified in Service Level Agreement, available at verifiable.com/verifiable-service-level-agreements (“SLA”). Customer’s sole and exclusive remedy with respect to such service levels, as well as any interruption or suspension of the Services, is specified in the Service Level Agreement. Customer’s sole and exclusive remedy (and Verifiable’s entire liability) with respect to conformance with the Documentation is that Verifiable will use commercially reasonable efforts to reperform or redeliver the deficient Services, or if Verifiable cannot substantially correct the breach in a commercially reasonable manner, termination of the relevant Services, in which case Customer will receive a pro rata refund of the Fees paid for the deficient Services as of the effective date of termination.
3.2 Customer Account. Customer and its Users may be required to create an account to access certain Subscriptions. Customer will ensure that all information about each User provided to Verifiable is and remains accurate and complete. Customer will implement commercially reasonable measures to protect the security and confidentiality of all User credentials and to prevent unauthorized access to or use of the Services through any User credentials. Customer is solely responsible for all activities in connection with its account and will notify Verifiable (both Customer’s dedicated resource and success@verifiable.com) promptly of any such unauthorized access or use of the account. Customer will ensure that all Users abide by the terms of the Agreement.
3.3 Subscription via API. If Customer purchases a license to access and use Verifiable’s application programming interface (API) with Third Party Software to access certain Services and request Verifications as specified in an Order, then before accessing or using the API, Customer may be required to obtain API credentials (a “Token”) from Verifiable. Each Token is unique in nature and may be used by Customer alone. Customer may not distribute or transfer its Token or provide a third party with the right to access or use its Token. Customer is solely responsible for all use of the API through its Token, including by any third party. Customer will ensure the security and confidentiality of its Token and will notify Verifiable immediately if its Token is lost, stolen, or otherwise compromised.
3.4 Subscription via Web Application. If Customer purchases a license to access and use Verifiable’s hosted web application, including any module thereof (the “Web Application”) as specified in an Order, then, Verifiable will provide Customer an account through which Customer may access and use the Web Application. Customer will designate a User as the administrator of Customer’s account. Until an administrator is designated by Customer, the administrator will be the first User added to Customer’s account.
3.5 Subscription via Salesforce. If Customer purchases a license to access Verifiable’s application built on the Salesforce Platform, including any module thereof as specified in an Order, Customer’s access to the Subscription is contingent upon Customer procuring licenses to certain parts of the Salesforce Platform, which Customer may either (a) procure it from Salesforce or a third party under a separate agreement or (b) purchase through Verifiable under the Agreement, as further described below.
(a) Salesforce ISV. If Customer procures licenses to the Salesforce Platform from Salesforce or a third party, then Customer shall maintain such licenses for the duration of the Term in order to use the Subscription. For clarity, Customer cannot access Verifiable’s application under this Section 3.5(a) unless Customer has procured the Salesforce Platform under a separate agreement.
(b) Salesforce OEM. If Customer purchases licenses to the Salesforce Platform from Verifiable, then Customer hereby agrees to comply with the terms of the SFDC Terms of Use applicable to OEM partners located at www.salesforce.com/company/legal/partner-agreements, which are to the benefit of and enforceable by Salesforce as a third party beneficiary; pricing and all other terms relating to Customers’ use of a Subscription via the Salesforce Platform are solely between Customer and Verifiable.
3.6 Third Party Software. If Customer purchases integration Services as specified in an Order, then Verifiable shall use reasonable efforts to facilitate a connection or integration (e.g.,via API) between the Subscription Services and Customer or third party products, services, websites, mobile applications, datasets, or other materials (collectively, “Third Party Software”). Access to and use of any Third Party Software may be subject to additional terms and conditions (e.g., additional fees) required by such third party. Customer shall consider the third party to be the contracting party, the third party shall be the party responsible for providing the services to the Customer, and Customer will look solely to the third party for any loss, claims or damages arising from or related to the provision of such Third Party Software. Customer and Customer’s Affiliates hereby release Verifiable and Verifiable’s Affiliates from any and all claims arising from or relating to the purchase or provision of any such Third Parties Software. Any amounts, including, but not limited to, Taxes, associated with Third Party Software which may be collected by Verifiable will be collected solely in the capacity as an independent sales agent.
4. Other Services. Notwithstanding anything to the contrary, Verifiable solely represents and warrants that it will use commercially reasonable efforts to provide the Services described in this Section 4 that are purchased by Customer (as set forth in an Order) in a professional and workmanlike manner by qualified personnel. The foregoing warranty does not apply, and Verifiable strictly disclaims all warranties, with respect to third party products. Except as otherwise specified in the SLA, Customer’s sole and exclusive remedy, and Verifiable’s entire liability, will be to use commercially reasonable efforts to reperform or redeliver the deficient Services, or, if Verifiable cannot correct a breach in a commercially reasonable manner, termination of the relevant Services, in which case Customer will receive a pro rata refund of the Fees paid for the deficient services as of the effective date of termination.
4.1 CVO Services. If Customer purchases credentials verification organization (or re-credentialing) Services as set forth in an Order, then Verifiable will provide the CVO Services by compiling Verified Data contained in Verifications ordered by Customer into a Packet (the “CVO Services”). A “Packet” is a document containing the Verified Data set forth in the Order, organized for submission to regulatory agencies and governing bodies for credentialing a Provider. Subject to the terms and conditions of the Agreement, Verifiable grants to Customer a limited, non-exclusive, non-transferrable, non-sublicensable license during the applicable Order Term to access to and use Verified Data in a Packet solely to submit the Packet to the applicable regulatory agency or governing body credentialing the Provider. The Unit Allotment for CVO Services is the minimum number of Packets Customer is purchasing for the Fees set forth in the Order. Verifiable shall deduct a Packet (i.e., a Unit) from the Unit Allotment (and the Per Unit Fee from the CVO Services Fees) upon each Customer request for a Packet. Verifiable will provide CVO Services in accordance with the CVO Commitment, as defined in the SLA. Customer’s sole and exclusive remedy with respect to such CVO Commitment is specified in the SLA. The Delegation Agreement between the parties (signed separately between the parties or attached as an exhibit to a signed Order) applies only to CVO Services.
4.2 Enrollment Services. If Customer purchases enrollment Services as set forth in an Order, then Verifiable will compile enrollment applications “Applications” (meaning requests to enroll Providers with health insurance networks, Medicare, Medicaid, or other third party payers of healthcare benefits selected by Customer) (“Enrollment Services”). The Unit Allotment for Enrollment Services is the minimum number of Applications Customer is purchasing, for the Fees set forth in the Order. Verifiable shall deduct an Application (i.e., a Unit) from the Unit Allotment (and the Per Unit Fee from the Enrollment Services Fees) upon each Customer request for an Application.
4.3 Licensing Services. If Customer purchases licensing Services as set forth in an Order, then Verifiable will obtain and/or maintain professional licenses for Providers selected by Customer (“Licensing Services”). A “License” is a submission to license a Provider in a state or field of practice. The Unit Allotment for Licensing Services is the number of License credits Customer is purchasing, for the Fees set forth in the Order, using dollar for dollar credits that Customer purchases annually in advance. Verifiable shall deduct credits from Customer’s annual Licensing Services prepayment upon each Customer requests a License for a Provider.
4.4 Professional Services. If Customer purchases additional services as set forth in an Order, then Verifiable will provide such Services (e.g., implementation, technical support, configuration, custom development, advisory or training relating to the Services) solely as specified in an Order. Such Services may also be subject to a signed agreement detailing the scope, assumptions, dependencies, and/or schedule of professional Services to be provided (“Statement of Work” or “SOW”).
5. Fees and Payment.
5.1 Fees. Customer shall pay all fees specified in each Order (“Fees”) as and when due. Fees may include Overage Fees, and fees to reimburse Verifiable for its direct cost of procuring certain requested Verified Data from governmental entities and third party data vendors, including court fees, school fees, board certifications and educational and employment verification fees (“Pass-Through Fees”). Except for Pass-Through Fees, all Fees are fixed during the Order Term. Because Pass-Through Fees are determined by third parties, Verifiable may increase the Pass-Through Fees if, and only to the extent the third parties increase their fees. Verifiable will limit such increase to the increase in Verifiable’s actual costs at no additional margin (i.e., there is no margin added to these costs), and, at Customer’s written request, will provide Customer with documentation supporting such increase. Pass-Through Fees are due in arrears within 15 days of the invoice date. With respect to renewal pricing, any unit pricing increase will be capped at a maximum increase of 7% above the prior Order Term’s highest unit pricing on a year-over-year basis, unless otherwise set forth in the applicable Order. The foregoing unit price increase limitation only applies if Customer’s renewal Order specifies a number of units that is equal to or greater than the quantity in the Customer’s expiring Order Term.
5.2 Overage Fees. Customer may purchase a Unit Allotment for a fixed Fee as specified in the Order. If, during a 12-month billing period, Customer’s use of a Service exceeds the applicable Unit Allotment, then Verifiable shall invoice, and Customer shall pay, for each Unit exceeding the Unit Allotment, (a) the corresponding Per Unit Fee set forth in the Order, or (b) if the Order explicitly designates an overage Fee, then the corresponding overage Fee set forth in the Order (each, “Overage Fees”), in arrears the following calendar month. Verifiable will prorate Overage Fees for Subscriptions to the portion of the Order Term remaining at the time the Unit Allotment increased. Upon expiration of each 12-month billing period, (i) any unused Unit Allotment will expire and not roll-over to the next 12-month period and (ii) for Subscriptions and CVO Services, the Unit Allotment for the next 12-month period will automatically increase to include the prior 12-month period’s Unit Allotment plus any increases from the prior 12-month period.
5.3 Payment. Fees and expenses as set forth in the Order are exclusive of any Taxes, withholding, or deduction. With the exception of Overage Fees and Pass-Through Fees, all Fees are due in advance of each 12-month billing period of the Order Term. Unless otherwise expressly indicated in the Order, Customer shall pay all Fees within 30 days after the date of the applicable invoice by means of an automated clearing house transfer. Except as otherwise specified in the Agreement, all Fees, expenses and other amounts paid under the Agreement are non-refundable. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Notwithstanding any other provision of the Agreement, if any undisputed payment is past due, after 10 days prior written notice, Verifiable may suspend the Services; Verifiable will reinstate the Services without undue delay once all past due payments have been made. Verifiable will not suspend the Services while Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.4 Taxes. Customer is responsible for paying all Taxes. If Verifiable has the legal obligation to collect and pay Taxes, then Verifiable shall add the appropriate amount to Customer’s invoices and Customer will pay such Taxes pursuant to the payment terms in Section 5, unless Customer provides Verifiable with a valid tax exemption certificate that is (a) authorized by the appropriate taxing authority and (b) applicable to Taxes. If Customer is required to withhold or deduct any Taxes from Fees, then Customer shall increase the amount payable to Verifiable by the amount of such Taxes so that Verifiable receives the full amount of all Fees.
6. Information and Data.
6.1 Personal Data. To the extent Verifiable processes Personal Data of Customer in a jurisdiction that requires a data processing agreement or similar document, Verifiable will process such Personal Data in accordance with Data Protection Laws applicable to Verifiable as Processor of such Personal Data and in accordance with the Verified Data Processing Addendum available at verifiable.com/data-processing-addendum (the “DPA”), which the parties agree is effective between the parties as of the date hereof and is supplemental, applicable to, and incorporated into the Agreement. Capitalized terms in this Section 6.1 not otherwise defined herein have the meanings set forth in the DPA.
6.2 Customer Data. As between Customer and Verifiable, Customer retains all right, title, and interest, including all IPR, in and to the Customer Data, including all obligations therein. Customer is solely responsible for the accuracy, quality, and legality of Customer Data. Nothing in the Agreement grants to Verifiable any rights of ownership or any other proprietary rights in or to Customer Data. Customer hereby grants Verifiable a nonexclusive, non-transferable (except in connection with an assignment permitted under Section 18.2), revocable license, during the applicable Order Term, under Customer’s proprietary rights, to reproduce, store, process, and use Customer Data solely for the purpose of, and to the extent necessary for, providing the Services and performing its obligations under the Agreement. Customer acknowledges that the Verified Data provided to Customer in Verifications or otherwise is based upon the Customer Data provided to Verifiable, that the Verifications do not verify the Provider’s identity, and that any inaccuracy or incompleteness of the Customer Data may lead to errors in the Verified Data. Except as otherwise required by applicable law, Verifiable has no obligation to maintain Customer Data more than 90 days after the expiration or termination of the Agreement.
6.3 Verifiable IP; Use Restrictions. Customer acknowledges that all right, title and interest in and to the Services, Verifiable systems/software, System Data, Documentation, and all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein, are and shall remain with Verifiable or any third party licensors. Except as otherwise expressly granted in the Agreement, Customer is granted no licenses or rights in or to any of the foregoing. Customer shall not and shall not permit any Users or third party to: (1) use the Services, or any software component thereof, or Documentation, for any purposes except as expressly provided in the Agreement; (2) copy, modify, or create derivative works of the Services, any software component thereof, or Documentation, in whole or in part; (3) sublicense, license, distribute, sell, rent, lend, lease, assign, publish, transfer or otherwise make available the Services or Documentation except as expressly permitted under the Agreement; (4) use any Services for the benefit of any third party or make any Services available to any third party; (5) reverse engineer, decompile, disassemble, decode, adapt or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (6) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on any Services or Documentation; (7) access or use the Services or Documentation or any component thereof in order to build a competitive product or service; (8) introduce, post, upload, transmit into the Services, or otherwise make Destructive Elements available to or from the Services; or (9) use the Services or Documentation for any unlawful or fraudulent purpose. Customer’s use of all Services will be in accordance with any Documentation for the applicable Services. All rights and restrictions in the Agreement applicable to any Services apply to all data, information, and other elements comprising the Services, including any enhancements, corrections, or other updates provided by Verifiable from time to time. Verifiable reserves the right to immediately suspend Customer’s access to the Services if Verifiable reasonably believes that Customer’s use of the Services may be in violation of the Agreement or applicable law or present a risk of harm, loss, or liability to Verifiable or any other customer or third party.
7. Termination and Effect.
7.1 Termination. The Agreement (in whole or with respect to any Order) may be suspended or terminated by either party by written notice to the other party if: (a) the other party materially breaches any provision of the Agreement and, to the extent the breach is capable of cure, fails to cure such breach within 30 days after receiving notice thereof; or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or proceeding is not dismissed within 30 days of filing thereof.
7.2 Effect of Termination; Survival. Termination or suspension of an individual Order for any Services will not terminate or suspend any other Order or the Agreement unless otherwise specified in the notice of termination or suspension. If the Agreement or any Order is terminated by Verifiable under Section 7.1, then Customer shall pay for all Fees specified in the Order. If the Agreement or any Order is terminated by Customer under Section 7.1, then Customer will be due a refund of any prepaid fees covering the remainder of any applicable Order after the effective date of termination less any used quantities and Fees due and payable to Verifiable. Upon termination, all rights and obligations of the parties under the Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and other obligations that may reasonably be expected to survive termination.
8. Representations and Warranties. Each party represents and warrants that: (a) such party has full power and authority to enter into the Agreement; and (b) the Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound. Customer further represents and warrants: (a) it has all necessary consents, permissions and approvals required by applicable law for use of Customer Data as contemplated under the Agreement, and (b) Customer Data contains no Prohibited Content.
9. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS OR WARRANTIES EXPRESSED OR IMPLIED INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF DEALING OR USAGE OF TRADE. VERIFIABLE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR FREE, ACCURATE OR COMPLETE OR COMPLY WITH LEGAL OR REGULATORY REQUIREMENTS APPLICABLE TO CUSTOMER, OR THAT VERIFIABLE WILL CORRECT ALL ERRORS. Verifiable specifically disclaims any responsibility or liability for errors or omissions in Verified Data provided by Data Sources or arising from inaccuracies or omissions in Customer Data, including direct, indirect, incidental, special, or consequential damages resulting from the use of Verified Data provided by Data Sources and released to Customer under the Agreement. Verifiable does not, and cannot, provide legal advice or other compliance related services and Customer should consult with its own legal counsel regarding Customer’s use of or requests for any Verifications, including but not limited to, the legality of using or relying on the Verified Data contained in any Verification.
10. Indemnification; Waiver of Certain Damages; Limitation of Liability.
10.1 Customer Indemnity. Customer will, at its expense, defend Verifiable and its officers, directors, managers, employees (“Verifiable Indemnitees”) from and against any and all claims, actions, proceedings and suits brought against Verifiable by a third party alleging that the “Customer Materials” (meaning Customer Data, documents, information and other materials provided by or on behalf of Customer to Verifiable) when used by Verifiable as authorized in the Agreement and as provided by Customer infringe or misappropriate a third party’s IPR (“Customer IP Claims”) and will indemnify Verifiable Indemnitees from and against reasonable costs incurred by Verifiable Indemnitees and damages awarded against Verifiable Indemnitees, or agreed to in settlement, resulting from Customer IP Claims or Customer’s violation of any applicable laws including applicable privacy laws (together with Customer IP Claims, “CustomerClaims”) to the extent such Customer Claims arise from Customer’s acts or omissions. Notwithstanding the above, Customer shall not be liable for any Customer Claims to the extent arising out of (i) unauthorized modification of Customer Materials by Verifiable, (ii) use of Customer Materials by or on behalf of Verifiable not in compliance with the Agreement, or (iii) combination of Customer Materials by or on behalf of Verifiable with any Verifiable data, information, or materials.
10.2 Verifiable Indemnity. Verifiable will, at its expense, defend Customer and its officers, directors, manager, and employees from and against all claims, actions, proceedings and suits brought against Customer by a third party alleging that the Services when used by Customer as authorized in the Agreement and as provided by Verifiable infringe or misappropriate a third party’s IPR (“IP Claims”) and will indemnify Customer Indemnitees from and against reasonable costs incurred by Customer Indemnitees and damages awarded against Customer Indemnitees, or agreed to in settlement, resulting from IP Claims or Verifiable’ violation of any applicable laws including applicable privacy laws (together with IP Claims, “Claims”) to the extent such Claims arise from Verifiable acts or omissions. Notwithstanding the above, Verifiable shall not be liable for any Claims to the extent arising out of (i) modification of the Services made by any party other than Verifiable or modifications made by Verifiable at the request of Customer where the Claim would not have arisen but for such modification, (ii) use of the Services by or on behalf of Customer not in compliance with the Agreement, or (iii) combination of the Services by or on behalf of Customer with any other products not authorized in the Documentation. If the Services are held to infringe, misappropriate or violate any third party’s IPR, or in Verifiable’s opinion are likely to be held, or, if based on any claimed infringement, misappropriation or violation of a third party’s IPR, an injunction is obtained, or in Verifiable’s opinion an injunction is likely to be obtained, that would prohibit or interfere with Customer’s use of the Services under the Agreement, in addition to Verifiable’s indemnification obligations under this Section 10.2, then Verifiable will, at its option and expense either: (i) procure for Customer the right to continue using the affected Services in accordance with the license granted under the Agreement; or (ii) replace or modify the affected Services so that the modified or replacement Services are reasonably comparable in functionality, interoperability with other software and systems, and levels of security and performance and do not infringe, misappropriate or violate any third-party’s IPR. If, in such circumstances, Verifiable does not successfully accomplish any of the foregoing actions on a commercially reasonable basis, either party may terminate the applicable Order and/or the Agreement and Customer shall receive a refund of any prepaid Fees covering the remainder of the Order Term after the effective date of termination.
10.3 Conditions. As a condition to any obligation to defend under the Agreement, each party will: (a) give the other party prompt notice of the IP Claims and/or Customer IP Claims (“Defense Claim”), provided however that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that such indemnifying party is materially prejudiced by such failure; (b) grant to the other party sole control of the defense and settlement of the Defense Claim, provided that any settlement that involves more than the payment of money and a full release of the indemnified party will require the indemnified party’s written consent; and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any claim for indemnification. Notwithstanding the foregoing, the indemnified party may participate in any defense, settlement, or other legal proceedings relating to any such indemnification at such party’s expense through counsel of such party’s choice. The indemnifying party will ensure the confidentiality of Defense Claim settlement terms to the extent permitted by applicable law.
10.4 Waiver of Certain Damages. To the maximum extent permitted by applicable law, neither party nor its Affiliates will be liable for any indirect, special, incidental, punitive, or consequential damages, whether in contract, tort (including negligence), strict liability, or otherwise, even if such party has been advised of the possibility of such damages and regardless of the failure of the essential purpose of any legal remedy, including loss of profit, service interruption (except as provided in the SLA), or cost to procure substitute services. Customer is responsible for its use of the Services, and as such Verifiable has no liability for Customer’s reliance on data that results from its use of the Services.
10.5 Limitation of Liability. EXCEPT WITH REGARD TO LIABILITY (A) FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS IN SECTION 11, (B) FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS FOR INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS UNDER SECTION 10, AND (C) ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY WITH RESPECT TO ANY CLAIM RELATING TO OR ARISING OUT OF THE SERVICES OR THE AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE TO VERIFIABLE UNDER THE AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. EACH PARTY AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF VERIFIABLE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY.
11. Confidentiality. Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care, and to only use the Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under the Agreement. For purposes of the Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of the Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (i) to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its affiliates in connection with its corporate and financial reporting requirements. Customer acknowledges that Verifiable may currently or in the future be developing information internally or receiving information from third parties that may be similar to or the same as Customer’s Confidential Information. Accordingly, nothing in the Agreement will be construed as a commitment, representation or inference that Verifiable will not, without violating the terms of the Agreement, use or disclose information that Verifiable develops internally or receives from third parties, even if such information is duplicative of any Customer Confidential Information. The occurrence or existence of such use or disclosure shall not by itself be cause for any action or allegation by Customer that Verifiable has failed to observe its obligations set forth herein. If Customer provides any feedback, comments, or ideas to Verifiable regarding the Services or improvements thereto, Customer agrees that Verifiable will be free to use, disclose, and exercise any rights in the same in connection with its products and services with no financial, credit, confidentiality, or other obligation to Customer, and all such feedback is and will be treated as non-confidential. Upon Discloser’s written request, Recipient will promptly return to Discloser, or destroy (if requested), all the Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section 11 shall continue for 3 years after the termination of the Agreement, except such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable laws.
12. Export. Customer shall comply with, and shall not permit Users or any third parties to access or use the Services in violation of, U.S. export controls and economic and trade sanctions laws and regulations.
13. Dispute Resolution. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to the Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of the Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to the Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in Section 15 (Irreparable Harm), if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration by JAMS under its Streamlined Arbitration Rules and Procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party to the Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted confidentially at a site specified by Verifiable in Wilmington, Delaware. The arbitrator will apply the law set forth in Section 14 (Choice of Laws; Venue) to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend the Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or pleaded to the arbitrator. The award of the arbitrator may not require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
14. Choice of Laws; Venue. The Agreement is governed by the laws of the State of Delaware, without regard to conflicts of law principles thereof. Subject to Section 13 (Dispute Resolution), the federal and state courts located in Wilmington, Delaware will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties hereby irrevocably submit to the personal jurisdiction of such courts.
15. Irreparable Harm. Each party acknowledges and agrees that the other party will be irreparably harmed in the event that such party breaches Section 6.3 (Verifiable IP; Use Restrictions) or Section 11 (Confidentiality) and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop breaches of such provisions of the Agreement and to enforce specifically the Agreement and the terms and provisions hereof, without the requirement of posting any bond.
16. Notices. All notices, consents, and approvals to be given by a party under the Agreement will be in writing and will either be via: (1) reputable overnight mail service; or (2) certified mail, return receipt requested, to the other party. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused). Notices to Verifiable shall be addressed to 9901 Brodie Lane Ste 160 #1077 Austin, TX 78748, attention “Legal Department” with a copy to legal@verifiable.com. Notices to Customer shall be addressed to the Customer’s address set forth on the Order. Either party may change its address for notice by giving notice of the new address to the other party.
17. Force Majeure. With the exception of any monetary obligations under the Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including acts of any governmental body, war or national emergency, riots or insurrection, epidemic, quarantine restrictions, sabotage, embargo, fire, flood, earthquake, accident, strike or other labor disturbance, internet, power grid, or service provider failures, denial of services attacks, or interruption of or delay in systems, power or telecommunications under third party control (“Force Majeure Events”).
18. Miscellaneous.
18.1 Entire Agreement. The Agreement represents the final and entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or verbal, as to the subject matter of the Agreement. Any terms contained in any other documentation that Customer delivers to Verifiable, including any purchase order or other order-related document (other than an Order or Statement of Work), to the extent inconsistent with the Agreement or any applicable Order are void and will not become part of the Agreement or otherwise bind the parties. To the extent of any direct conflict between these Terms and any term contained in an Order, the terms of the Order shall govern. Except as noted herein, any amendment or modification of these Terms, the Agreement or any Order must be in writing and signed by both parties to be effective. Other than the Order, no term included in any confirmation, acceptance, written or oral communication, purchase order or any other similar document in connection with the Services will modify these Terms or have any force or effect whatsoever unless signed by both parties.
18.2 Assignment. Neither party may assign the Agreement or any right, interest or benefit under the Agreement without the prior written consent of the other party; provided, however, either party may assign the Agreement to a successor who acquires substantially all of its assets or equity through purchase, merger or other transaction without the other party’s consent. Any purported assignment in breach of the foregoing will be null and void. The Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in the Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of the Agreement.
18.3 Federal Program Eligibility and Audit Requirements. This Section 18.3 applies when either party is a healthcare provider, supplier, or other entity subject to audit requirements under Medicare or other federal healthcare programs. Both parties shall make available to authorized representatives of the U.S. Department of Health and Human Services and the Government Accountability Office all relevant documents for four years post-service, per 42 C.F.R. § 420.300 et seq., without waiving legal privileges. Customer represents and warrants its eligibility to participate in Federal health care programs as defined in 42 U.S.C. § 1320a-7b(f), affirming it is not excluded, debarred, convicted of healthcare-related offenses, or under investigation for potential exclusion. Customer shall immediately notify Verifiable of any status changes, and any breach allows Verifiable to terminate this Agreement for cause. This provision enables Verifiable to certify Customer's compliance with Office of Inspector General's exclusion list and related requirements. If the Centers for Medicare & Medicaid Services (CMS) implements any law, regulation, or requirement that specifically prohibits or materially restricts the contractual arrangement between Verifiable and Customer as set forth in this Agreement, the parties shall negotiate in good faith to modify the Agreement to comply with such CMS requirements.
18.4 Waiver. A waiver by a party under the Agreement is only valid if in writing and signed by an authorized representative of the waiving party. A delay or failure of a party to exercise any rights under the Agreement will not operate or be interpreted as a waiver or forfeiture of such rights.
18.5 Status of the Parties. The parties are independent contractors, and nothing in the Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. Verifiable may subcontract Services to third parties or Affiliates as long as (a) subcontractors agree to Confidential Information protections at least as restrictive as those found in the Agreement and (b) Verifiable remains responsible to Customer for the performance of Verifiable’s subcontractors and Verifiable’s obligations hereunder. Verifiable may utilize subcontractors to perform Services hereunder, provided that Verifiable will remain fully responsible for the subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Verifiable, would constitute a breach of, or otherwise give rise to liability to Verifiable under, the Agreement when they are performing for or on behalf of Verifiable. Customer specifically acknowledges that Verifiable subcontracts with offshore resources to manage a subset of primary source verifications and data entry. Members of the offshore team have restricted access through a dedicated portal, which (a) enforces DLP (Data Loss Prevention) to prevent data exfiltration and (b) limits access to data associated with their work. Access to this team is limited to publicly available data and information, any information considered not considered Personal Data. Verifiable conducts a security audit of each subcontractor annually.
18.6 Severability. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of the Agreement will continue in full force and effect.
18.7 Third Party Rights. No term of the Agreement will be construed to confer any third party beneficiary rights on any non-party, except the American Board of Medical Specialties (ABMS) and its affiliates and subsidiaries, which are third-party beneficiaries of the Agreement, entitled to the rights and benefits under the Agreement, which may enforce such rights and benefits as if they were parties to Agreement (applicable only when such third party is a Data Source).
18.8 Interpretation. In the Agreement: (a) any headings are for reference purposes only and shall not be used in the construction and interpretation of the Agreement; (b) “includes”, “including”, “for example”, and similar terms are not words of limitation; and (e) a monetary amount is in U.S. dollars.
18.9 Counterparts. The Agreement may be executed simultaneously in one or more counterparts (including by electronic signature), each of which when executed will be deemed to be an original, but all of which will constitute one and the same agreement.
19 Definitions.
19.1 “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
19.2 “Customer Data" means all data, information, content and materials that Customer or its Users provide to Verifiable through the Subscription.
19.3 "Data Sources” means the databases and other sources which Verifiable will search and from which Verifiable will obtain Verified Data on behalf of Customer. Data Sources may include, by way of example, state licensing boards, DEA records, educational records, the OFAC watch list, and other publicly available information.
19.4 “Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
19.5 “Documentation” means the specifications and documentation available at https://help.verifiable.com/hc/en-us.
19.6 “IPR” means all intellectual property and proprietary rights throughout the world (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information.
19.7 “Prohibited Content” means content that: (i) is in violation of applicable law; (ii) violates any third party’s IPR; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful, fraudulent, or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; or (vii) contains Destructive Elements.
19.8 "Provider" means either an individual health care professional licensed to provide diagnoses and/or treatment or a facility providing health care services, as set forth in the applicable Order.
19.9 “Salesforce” means Salesforce, Inc. and its subsidiaries.
19.10 “Salesforce Platform” means the cloud-based software platform provided by Salesforce.
19.11 “Subscription” means time-bound Services including access to the Verifiable software interface through which Customer requests Verifications and accesses certain Services, whether Verifiable’s API, Web Application, Salesforce Platform, or subsequent offering, and all modules, features, and functionality of the foregoing, each as set forth in an Order.
19.12 “System Data” means data and data elements collected or generated by the Services regarding configuration, environment, usage, data structure, performance, vulnerabilities and security of the Services that may be used to generate logs, statistics, invoices, and reports regarding performance, availability, integrity and security of the Services to the extent such data does not contain Customer Data.
19.13 “Taxes” means any applicable form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to the Agreement or any Services, other than taxes based on the net income, property, franchise, or employees of Verifiable.
19.14 "Unit Allotment" means minimum quantity of Units per 12-month billing period.
19.15 “User” means those current employees, consultants or agents whom Customer permits to access and use the Services pursuant to the terms and conditions of the Agreement; provided, however, that any consultants’ or agents’ access or use of the Services shall be limited to their provision of services to Customer.
19.16 Verification” means a report presenting Verified Data covering the combination of Providers and Data Sources set forth in the Order, including the structure, organization, selection, coordination, and arrangements thereof, and all elements comprising the foregoing.
19.17 “Verified Data” means the data obtained by Verifiable from Data Sources and provided to Customer in a Verification as part of the data Verification Services. Verifiable may modify the composition of Verified Data provided if Data Sources become unavailable or modify their terms of access. In such cases, Verifiable will use commercially reasonable efforts to provide substantially similar verification capabilities through alternative Data Sources where available.
Last Modified: December 12, 2024