Service Agreement
Last Updated: April 12, 2024
Aidaly Corp.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES (DEFINED BELOW).
Aidaly, Corp. and its affiliates (collectively, “Aidaly”) are willing to provide the Services to you only upon the condition that you accept all the terms contained in this Services Agreement (the “Agreement”). By mutually executing one or more Program Orders with Aidaly or by accessing or using the Services, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not accept this Agreement and you may not use the Services.
1. Definitions.
“Agreement” means this Services Agreement, together with the Data Processing Addendum attached as Exhibit A.
“Customer Data” means any and all data provided and used by you in connection with the Services.
“Estimated Service Value” means Aidaly’s official estimate of the total value of benefits, credits, or programs, and other benefits and/or savings you will receive from any Program provided by Aidaly after completion of the Qualification Process.
“Program” means benefits, credits, or programs, and other incentives and/or savings programs and services you are enrolled in as part of the Services.
“Program Advance” means a cash advance Aidaly may provide to you based on a number of factors, including your compliance with Aidaly’s underwriting process, and estimates of future benefits you will receive with respect to such Program by using the Services.
“Program Order” means each order schedule presented to you during the Qualification Process or sales cycle for each Program through the Services, or the invoice or order/payment confirmation furnished to you at the time of each renewal for such Program, as applicable.
“Qualification Process” means the review and qualification process we undertake to determine your eligibility for applying for benefits, credits, or programs, and other incentives and/or savings programs and/or financial services in connection with a Program, and to calculate the Estimated Service Value.
“Services” means Aidaly’s cloud-based services and analytics platform, as well as the associated time of Aidaly personnel who assist you in reviewing and applying for benefits, credits, or programs, and other incentives and/or savings programs and services.
2. Services.
2.1 Services. Subject to your compliance with the terms and conditions of this Agreement, during the Term (as defined below): (i) Aidaly will provide you with the Services, and you may access and use the Services solely for your internal business purposes within the usage limits specified for each the applicable Program Order; and (ii) Aidaly will make available to you at no additional cost the standard support that is made generally available to paying subscribers, in accordance with Aidaly’s policies as the same may be amended or supplemented from time to time.
2.2 Authorized Users. The Services may only be accessed and used by your employees and independent contractors, who may only access and use the Services for the sole purpose of performing their job functions or services (as applicable) for you (“Authorized Users”). The log-in credentials for each Authorized User are for a single individual only and cannot be shared or used by more than 1 person. You are responsible for all actions taken under an Authorized User’s account, whether or not such action was taken or authorized by the Authorized User. You may from time to time replace an Authorized User who no longer requires use of the Services by notifying Aidaly of the requested change (in which case new log-in credentials will be established).
2.3 Restrictions. You, on behalf of yourself and your Authorized Users, agree not to: (1) copy, modify, alter, decompile or reverse engineer the Services (including the business practices, source code, object code, and underlying structure and algorithms thereof); (2) resell or otherwise make the Services available to any third party; (3) use the Services either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (4) interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services); (5) deactivate, impair, or circumvent any security or authentication measures of the Services; (6) use the Services or their outputs to train, calibrate, or validate, in whole or in part any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes; or (7) permit any third parties to do any of the above. You are responsible for the use of the Services by your Authorized Users and their compliance with this Agreement, and agree that any breach of this provision would result in irreparable harm to Aidaly.
2.4 Your Responsibilities. You are responsible for providing Aidaly with accurate and complete information. As part of the Services, Aidaly may suggest benefits, credits, programs, incentives and/or savings, services, refunds or rebates, incentive programs, promotions, benefits, savings, or other Programs you may qualify for and wish to apply for, and/or participate in. You acknowledge and agree that it is your decision, in your sole discretion, whether to apply for, and/or participate in, any such programs, and you are solely responsible for any impact your application for, or participation in, such Programs may have on your business, employees, customers, or partners. You must cooperate with Aidaly and follow the instructions provided by Aidaly to take advantage of any of the foregoing, and participate in good faith in the processes necessary to secure the credits, savings, and other benefits that have been identified to you. Failure to do so will void the Aidaly Guarantee or Savings Guarantee that may be applicable to your Program Order. Aidaly retains sole discretion in determining whether you have participated in good faith in any of the aforementioned processes. You must also file your complete, independently reviewed benefit returns and forms on or prior to the filing deadlines applicable to your company. Aidaly is not responsible for your failure to receive a deduction, credit, discount (including any failure on your part to identify a referrer during the sign up process), promotional rate, or refund due to your non-compliance with the above requirements, or late or incomplete benefit filings, and any such failure does not relieve you of your payment obligations to Aidaly. If you choose to extend your benefit filing deadline, you will still be obligated to pay back any Program Advance on the schedule set forth in the applicable Program Order regardless of when you receive credits or other benefits from the applicable Program. Any information or documentation provided to you for a benefit credit Program is only to be used to establish such benefit credits on a timely-filed original income benefit return, and should not be used for purposes of claiming a refund or credit on an amended return.
Any advice or guidance given by or on behalf of Aidaly in connection with the Services or a particular Program is given solely for informational purposes and nothing provided by Aidaly should be construed as healthcare, finance, legal, accounting, or insurance advice. You should consult your lawyer, accountant, or insurance professional should you need such advice.
3. Customer Data.
3.1 Customer Data. As between you and Aidaly, you own all right, title and interest in and to your Customer Data. You hereby grant to Aidaly a non-exclusive license to access, process, use, copy, modify, create derivative works based on, and distribute your Customer Data to: (a) provide the Services, including through affiliated entities and third-party service providers, to you and your Authorized Users, and (b) to create Analytics Data (defined below). You are solely responsible for the content of your Customer Data. You represent and warrant that (1) you have, and will continue to have, during the term of this Agreement, all necessary rights, authority and licenses for the access to and use of your Customer Data as contemplated by this Agreement and the software and systems on or through which you have requested us to provide services; and (2) Aidaly’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between you and any third party. The Data Processing Addendum set forth in Exhibit A is hereby incorporated herein by reference.
3.2 Security; Backup. Aidaly will maintain (and will require its third-party service providers to maintain) reasonable administrative, physical and technical safeguards intended to protect the Customer Data against accidental loss and unauthorized access or disclosure, in accordance with applicable industry standards. Aidaly will follow its standard archival procedures for Customer Data. In the event of any loss or corruption of Customer Data, Aidaly will use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Aidaly. Aidaly will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by you or by any Authorized User or third party. AIDALY’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 3.2 WILL CONSTITUTE AIDALY’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA IN CONNECTION WITH THE SERVICES.
4. Fees & Payment.
4.1 Fees. You will pay the fees and charges stated in each Program Order for use of the Services with respect to each Program (“Platform Fees”). The Program Fee for each Program will be specified in the applicable Program Order and is payable and charged at the start of each month (or as otherwise specified in the Program Order) for the duration of the applicable Program Order Term (defined below). The Program Order may also include success fees or supplemental fees for additional services provided during the Term (“Supplemental Fees”).
4.2 Payment Terms. Unless otherwise specified in a Program Order, you agree to pay all Program Fees by credit/debit card or by bank transfer (ACH/wire). If you have provided us with credit/debit card details, we will charge that credit/debit card at the start of each month (or as specified in your Program Order) for the duration of the Term, for the Program Fees and the portion due for any applicable Supplemental Fees. If we issue an invoice to you, all invoices are payable as specified in the Payment Terms section of the applicable Program Order (or if not so specified, within thirty (30) days of issuance). All amounts are stated and shall be paid in U.S. dollars and are exclusive of benefits, duties, levies, tariffs, and other governmental charges (collectively, “benefits”). You are responsible for payment of all benefits and any related interest and/or penalties resulting from any payments made to us, other than any benefits based on Aidaly’s net income. All past due amounts will incur interest at a rate of 1% per month or the maximum rate permitted by law, whichever is less. Except as expressly set forth in this Agreement, all payments, once paid, are non-refundable. Additionally, you agree to pay or reimburse any costs (including attorney’s fees) Aidaly incurs to collect overdue payments (including Program Fees, Supplemental Fees, and Program Advances) from you.
4.3 Preliminary Non-Binding Estimates. Upon your signing up for a Program, Aidaly may present to you a preliminary estimate or target of the credits, refunds, saving benefits and any cash advances you may be eligible for. Any such estimates are non-binding and subject to revision after completion of the Qualification Process. If Aidaly’s final estimates of the Estimated Service Value and Program Advance after completion of the Qualification Process are different than the preliminary estimate provided by Aidaly, then you may cancel your Program Order within five (5) days after we notify you of the revised estimates, and no cancelation fees will be due. If Aidaly determines that you are not eligible for certain programs, credits, refunds, benefits or savings as a result of the Qualification Process, Aidaly may terminate the Program Order.
4.4 Fee Calculation and Reconciliation. The Platform Fee for each “Program” will be calculated as an Estimated Service Value required to complete the qualification process and participate in a Program as reflected in the Program Order provided to you. The calculated Platform Fee for each Program will be set forth in the applicable Program Order (the “Platform Fee”). Upon entering into a Program Order for a Program, you agree to pay Platform Fees based on the estimated time and effort determined during the Qualification Process.The Program Order for each Program may specify additional reconciliation events (“Reconciliation Event”), in addition to those below, that trigger the following reconciliation process. Upon the occurrence of a Reconciliation Event, Aidaly will calculate a new Program Value. For most Programs, a Reconciliation Event will be when your Eligibility or the Eligibility Criteria have changed. Notwithstanding any other provision of this Agreement: (i) any adjustments to, or denials of, any benefits, credits, or programs, other incentives and/or savings programs and services by any governmental/regulatory body shall not constitute a Reconciliation Event; (ii) no Reconciliation Event with respect to any Program shall occur after the date on which you begin receiving financial benefit from a Program; and (iii) in no event will you have any right to a full or partial refund of any Platform Fees if all or part of the Program Qualifications is not sustained by any applicable governmental/regulatory body.
4.5 Exceptions. The above reconciliation terms shall not apply and your Platform Fees will be calculated based on the Estimated Service Value if the Actual Program Value is less than the Estimated Service Value due to any of the following:false, inaccurate, or incomplete information you provide to Aidaly; your failure to correct and resolve errors in the applications prepared by Aidaly; your failure to follow instructions provided by Aidaly or to cooperate in the process to obtain credits or other benefits for you; your choice not to claim the full amount of a benefit or credit or other benefit for which you are eligible; oryour failure or delay in filing complete and accurate applications.
4.6. Advances. Concurrently to a Program, Aidaly may provide Cash Advances to qualified customers. The cash advance amount that you may receive each month is calculated based on a number of factors and not determined by the value of any benefits, credits, programs, incentives and/or savings, services, refunds or rebates, promotions, benefits, savings, or other Programs you may qualify for and wish to apply for, and/or participate in. You will be responsible for paying back the Advance based on the payback schedule for such Advance provided in the Program Order. In the event this Agreement is terminated or canceled prior to the end of the Term, you will be responsible for paying back each Advance in full within 30 days of cancellation.
5. Term and Termination.
5.1 Term. For each Program Order, the “Program Order Term” shall begin as of the effective date set forth on such Program Order, and unless earlier terminated as set forth herein, (i) shall continue for the initial term specified on the Program Order (the “Initial Program Order Term”), and (ii) following the Initial Program Order Term, shall automatically renew for additional successive periods of one year each without the application of any promotions or incentives applied to the Initial Program Order Term (each, a “Renewal Order Term”) unless either party notifies the other party of its intention not to renew no later than thirty (30) days prior to the expiration of the Initial Program Order Term or then-current Renewal Program Order Term, as applicable. This Agreement shall commence upon the effective date set forth in the first Program Order, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Program Order Terms (the “Term”).
5.2 Changes. At any time during the Term, Aidaly may adjust your Fees and Advances based on changes to estimated future benefits or target savings. If you choose not to continue using the Services after the change goes into effect, your right to use the Services will end and you will be required to pay any incurred Platform Fees and Supplemental Fees and pay back any Advances as per the terms in each original Program Order.
5.3 Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 10 business days after written notice thereof.
5.4 Cancellation Policy. (a) You may cancel any Program Order as outlined herein, but you will be required to pay in full the amount of any Advance provided in such Order within 30 days after cancellation. If you cancel a Program Order up to five (5) days after Aidaly provides you with a notice of commencement of the application process, you agree to pay any incurred Platform Fees and Supplemental Fees through the month of cancellation. If you cancel after that time, you agree to pay the full Platform Fees and Supplemental Fees as set forth in your Program Order.
5.5 Additional Remedies. Without limiting other available remedies, Aidaly reserves the right to suspend or disable you and/pr your Authorized Users’ access to the Services if any undisputed amounts payable under this Agreement become more than 30 days past due. Aidaly also reserves the right to suspend or disable access to the Services if Aidaly determines (in its sole discretion) that: (1) your or any Authorized User’s use of the Services disrupts, harms, or poses a security risk, or may cause harm, in each case to Aidaly, the Services or any third party; or (2) you or any Authorized User has used, or is using, the Services in breach of this Agreement; or (3) intend to commit abuse, fraud, or felony.
5.6 Effect of Termination. Upon any expiration or termination of this Agreement, your (and your Authorized Users’) right to access and use the Services will automatically terminate. Aidaly will have no liability for any costs, losses, damages, or liabilities arising out of or related to Aidaly’s exercise of its termination rights under this Agreement. Any payment obligations as of the expiration or termination will remain in effect. The obligations and provisions of Sections 2.3, 3, 4, 5, and Sections 6 through 13 (inclusive) will survive any expiration or termination of this Agreement.
6. Confidentiality.
6.1 General. Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure, or that is described in this Agreement as confidential (“Confidential Information”) in connection with the use and/or performance of the Services. Customer Data is your Confidential Information. Aidaly Confidential Information includes the non-public portions of the Services and any related documentation and pricing information of Aidaly. During the term of this Agreement and for three (3) years thereafter, each party agrees to take reasonable precautions to protect the disclosing party’s Confidential Information from unauthorized disclosure, not to use such Confidential Information except as authorized or as necessary to perform its obligations under this Agreement, and to not disclose (without the disclosing party’s prior authorization, including any such authorization given under this Agreement) to any third person any such Confidential Information (other than on a need to know basis to the receiving party’s employees, consultants and service providers who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as this Agreement), or as specifically permitted under this Agreement. Confidential Information does not include any information that the receiving party can show: (1) through no fault of the receiving party, is or becomes generally available to the public, (2) was in its possession or was known prior to receipt from the disclosing party, (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed without use of any Confidential Information of the disclosing party. For the avoidance of doubt, Confidential Information does not include any information regarding the benefit treatment or benefit structure of any transaction. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or limit the nature or scope of the information to be disclosed). Upon request following termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy all copies of the disclosing party’s Confidential Information in its possession or control, except that the receiving party may retain a copy of the disclosing party’s Confidential Information to monitor its compliance under this Agreement and to comply with applicable regulatory requirements. For purposes of clarity, Aidaly may retain any de-identified information or Analytics Data generated using Customer Data.
6.2 Consent. To Use or Disclose Customer Data. We cannot disclose your information to third parties, or use that information for purposes other than described in this Agreement, unless such disclosure or use is otherwise authorized by law or you consent to such disclosure or use.
6.3 Disclosure of Health and Financial Information Outside the U.S.. In the course of providing services to you under this Agreement, Aidaly may engage one or more independent contractors to assist Aidaly in providing such services, and any administrative, clerical or analytical functions related thereto.
Additionally, by agreeing to the Aidaly's Service Agreement and Privacy Policy, you understand that you are allowing known Payers and/or Providers to disclose all of the payment, engagement, and utilization information to Aidaly Corporation, Aidaly Care Services, Aidaly Care MSO or affiliate firms for the Medicaid Member who would be the care recipient, including data on certain conditions such as HIV/AIDS, Mental Health, Alcohol and Substance Abuse, and any otherwise Protected Data. You hereby authorize Aidaly Corporation, Aidaly Care Services, Aidaly Care MSO or affiliate firms to correspond and advocate on your behalf with impunity.
7. Ownership.
7.1 Aidaly Intellectual Property. As between Aidaly and you, Aidaly owns all worldwide right, title and interest in and to the Services, the Usage Data, and Analytics Data, including all Intellectual Property Rights therein. For purposes of this Agreement, “Intellectual Property Rights” means patent rights (including patent applications and disclosures), trademarks, copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
7.2 Feedback. If you provide any ideas, suggestions, or recommendations regarding the Services (“Feedback”), Aidaly will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, you grant to Aidaly a worldwide, perpetual, irrevocable, fully-paid up, royalty-free, nonexclusive license to use and exploit in any manner such Feedback.
7.3 Usage Data. You acknowledge and agree that Aidaly may generate data with respect to the use and performance of the Services (“Usage Data”) and may retain and use such Usage Data for its internal business purposes, such as developing and improving Aidaly’s products and services (including the Services).
7.4 Analytics Data. You acknowledge and agree that Aidaly may use the Usage Data and the Customer Data to create analytics, analyses, statistics, benchmarks, or other aggregated data and derivative works.
8. NO WARRANTY.
THE SERVICES ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. AIDALY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AIDALY OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Aidaly DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. You assume sole responsibility and liability for results obtained from the use of the Services and for conclusions drawn from such use. Aidaly will have no liability for any claims, losses, or damages caused by errors or omissions in any Customer Data or any results produced by the Services based upon Customer Data.
9. Limitation of Liability.
IN NO EVENT WILL AIDALY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, WHETHER OR NOT FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT Aidaly HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. AIDALY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO Aidaly BY YOU FOR THE SERVICES DURING THE 12 MONTH PERIOD PRIOR TO THE FIRST CLAIM FOR LIABILITY HEREUNDER. The parties agree that the limitations and exclusions contained in this Section 9 and elsewhere in this Agreement will survive and apply even if any exclusive remedy specified in this Agreement is found to have failed of its essential purpose.
10. U.S. Government End Users.
The Services are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If access to the Services is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Services will be only those specified in this Agreement.
11. Indemnification.
You agree to indemnify and hold Aidaly and its licensors, suppliers, vendors, partners, and affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your violation of this Agreement, (b) any liens by third parties on your account, and (c) your use of the Services in any manner inconsistent with this Agreement.
12. Force Majeure.
Aidaly will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its reasonable control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, pandemic, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications services.
13. General.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any controversy or claim relating to the Agreement shall be settled by arbitration in San Francisco, California under JAMS’ Streamlined Arbitration Rules. The arbitrator(s) may award costs and attorneys’ fees to the prevailing party, and judgment on any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You may not assign or transfer this Agreement, or any rights granted hereunder, by operation of law or otherwise, without Aidaly’s prior written consent, and any attempt by you to do so, without such consent, will be void. Aidaly may freely assign this Agreement. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Program Order or to such other addresses as may be specified by either party to the other in accordance with this Section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement, together with the Program Orders, is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes any and all prior or contemporaneous agreements, proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Aidaly have executed a separate agreement governing use of the Services. Any terms or conditions contained in any purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Aidaly and will be deemed null. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
14. Contact Information.
If you have any questions regarding this Agreement, you may contact Aidaly at support@aidaly.com.
Exhibit A
Data Processing Addendum
This Data Processing Addendum (“DPA”) forms part of the attached Services Agreement (the “Agreement”) between you (“Customer”) and Aidaly.
1. Subject Matter and Duration.
1.1 Subject Matter. This DPA reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with Aidaly’s performance of its obligations under the Agreement. All capitalized terms that are not expressly defined in this DPA will have the meanings given to them in the Agreement. If and to the extent language in this DPA conflicts with the Agreement, this DPA shall control.
1.2 Duration and Survival. This DPA will become legally binding upon the effective date of the Agreement. Aidaly will Process Customer Personal Data until the relationship terminates as specified in the Agreement. Aidaly’s obligations and Customer’s rights under this DPA will continue in effect so long as Aidaly Processes Customer Personal Data.
2. Definitions.
2.1 “Customer Personal Data” means Personal Data Processed by Aidaly on behalf of Customer.
2.2 “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject.
2.3 “Personal Data” shall have the meaning assigned to the terms “personal data” and/or “personal information” under Data Protection Laws.
2.4 “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
2.5 “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to Aidaly.
2.6 “Services” means any and all services that Aidaly performs under the Agreement, including through affiliated entities and third-party service providers.
2.7 “Third Party(ies)” means Aidaly’s authorized contractors, agents, vendors and third-party service providers (i.e., sub-processors) that Process Customer Personal Data.
3. Data Use and Processing.
3.1 Processing Customer Personal Data. Aidaly and its Third Parties shall Process Customer Personal Data only as specifically authorized by this DPA, the Agreement, or any applicable Program Order.
3.2 Authorization to Use Third Parties. To the extent necessary to fulfill Aidaly’s contractual obligations under the Agreement, Customer hereby authorizes (i) Aidaly to engage Third Parties and (ii) Third Parties to engage sub-processors.
3.3 Aidaly and Third-Party Compliance. Aidaly agrees to enter into a written agreement with Third Parties regarding such Third Parties’ Processing of Customer Personal Data that imposes on such Third Parties data protection and security requirements for Customer Personal Data.
3.4 Personal Data Inquiries and Requests. Where required by Data Protection Laws, Aidaly agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws (e.g., access, rectification, erasure, data portability, etc.). If a request is sent directly to Aidaly, Aidaly shall notify Customer without undue delay.
3.5 Sale of Customer Personal Data Prohibited. Aidaly shall not sell Customer Personal Data as the term “sell” is defined by the CCPA. Aidaly shall not disclose or transfer Customer Personal Data to a Third Party or other parties that would constitute “selling” as the term is defined by the CCPA.
3.6 Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Aidaly agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgment, the type of Processing performed by Aidaly requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
3.7 Demonstrable Compliance. Aidaly agrees to provide information that is reasonably necessary to demonstrate compliance with this DPA upon reasonable request.
3.8 Information Security Program. Aidaly agrees to implement commercially reasonable technical and organizational measures designed to protect Customer Personal Data consistent with Data Protection Laws.
3.9 Security Incidents. Upon confirming the existence of a Security Incident, Aidaly agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
3.10 Audits. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may, not more than once annually, carry out an audit of Aidaly’s Processing of Customer Personal Data by having Aidaly complete a data protection questionnaire of reasonable length. Any such audit shall be subject to Aidaly’s security and confidentiality terms and guidelines.
3.11 Data Deletion. At the expiry or termination of the Agreement, Aidaly will, upon Customer’s request, delete or return all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Aidaly’s data retention schedule), except where necessary to monitor compliance with surviving contractual provisions, or where Aidaly is required to retain copies under applicable laws or regulatory requirements, in which case Aidaly will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
4. Processing Details.
Subject Matter: The subject matter of the Processing is the Services pursuant to the Agreement.Duration: The Processing will continue until the expiration or termination of the Agreement.
Categories of Data Subjects: Data subjects whose Personal Data will be Processed pursuant to the Agreement.
Nature and Purpose of the Processing: The purpose of the Processing of Customer Personal Data by Aidaly is the performance of the Services.
Types of Customer Personal Data: Customer Personal Data that is Processed pursuant to the Agreement.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES (DEFINED BELOW).
Aidaly, Corp. and its affiliates (collectively, “Aidaly”) are willing to provide the Services to you only upon the condition that you accept all the terms contained in this Services Agreement (the “Agreement”). By mutually executing one or more Program Orders with Aidaly or by accessing or using the Services, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not accept this Agreement and you may not use the Services.
1. Definitions.
“Agreement” means this Services Agreement, together with the Data Processing Addendum attached as Exhibit A.
“Customer Data” means any and all data provided and used by you in connection with the Services.
“Estimated Service Value” means Aidaly’s official estimate of the total value of benefits, credits, or programs, and other benefits and/or savings you will receive from any Program provided by Aidaly after completion of the Qualification Process.
“Program” means benefits, credits, or programs, and other incentives and/or savings programs and services you are enrolled in as part of the Services.
“Program Advance” means a cash advance Aidaly may provide to you based on a number of factors, including your compliance with Aidaly’s underwriting process, and estimates of future benefits you will receive with respect to such Program by using the Services.
“Program Order” means each order schedule presented to you during the Qualification Process or sales cycle for each Program through the Services, or the invoice or order/payment confirmation furnished to you at the time of each renewal for such Program, as applicable.
“Qualification Process” means the review and qualification process we undertake to determine your eligibility for applying for benefits, credits, or programs, and other incentives and/or savings programs and/or financial services in connection with a Program, and to calculate the Estimated Service Value.
“Services” means Aidaly’s cloud-based services and analytics platform, as well as the associated time of Aidaly personnel who assist you in reviewing and applying for benefits, credits, or programs, and other incentives and/or savings programs and services.
2. Services.
2.1 Services. Subject to your compliance with the terms and conditions of this Agreement, during the Term (as defined below): (i) Aidaly will provide you with the Services, and you may access and use the Services solely for your internal business purposes within the usage limits specified for each the applicable Program Order; and (ii) Aidaly will make available to you at no additional cost the standard support that is made generally available to paying subscribers, in accordance with Aidaly’s policies as the same may be amended or supplemented from time to time.
2.2 Authorized Users. The Services may only be accessed and used by your employees and independent contractors, who may only access and use the Services for the sole purpose of performing their job functions or services (as applicable) for you (“Authorized Users”). The log-in credentials for each Authorized User are for a single individual only and cannot be shared or used by more than 1 person. You are responsible for all actions taken under an Authorized User’s account, whether or not such action was taken or authorized by the Authorized User. You may from time to time replace an Authorized User who no longer requires use of the Services by notifying Aidaly of the requested change (in which case new log-in credentials will be established).
2.3 Restrictions. You, on behalf of yourself and your Authorized Users, agree not to: (1) copy, modify, alter, decompile or reverse engineer the Services (including the business practices, source code, object code, and underlying structure and algorithms thereof); (2) resell or otherwise make the Services available to any third party; (3) use the Services either directly or indirectly to support any activity that is illegal or that violates the proprietary rights of others; (4) interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services); (5) deactivate, impair, or circumvent any security or authentication measures of the Services; (6) use the Services or their outputs to train, calibrate, or validate, in whole or in part any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes; or (7) permit any third parties to do any of the above. You are responsible for the use of the Services by your Authorized Users and their compliance with this Agreement, and agree that any breach of this provision would result in irreparable harm to Aidaly.
2.4 Your Responsibilities. You are responsible for providing Aidaly with accurate and complete information. As part of the Services, Aidaly may suggest benefits, credits, programs, incentives and/or savings, services, refunds or rebates, incentive programs, promotions, benefits, savings, or other Programs you may qualify for and wish to apply for, and/or participate in. You acknowledge and agree that it is your decision, in your sole discretion, whether to apply for, and/or participate in, any such programs, and you are solely responsible for any impact your application for, or participation in, such Programs may have on your business, employees, customers, or partners. You must cooperate with Aidaly and follow the instructions provided by Aidaly to take advantage of any of the foregoing, and participate in good faith in the processes necessary to secure the credits, savings, and other benefits that have been identified to you. Failure to do so will void the Aidaly Guarantee or Savings Guarantee that may be applicable to your Program Order. Aidaly retains sole discretion in determining whether you have participated in good faith in any of the aforementioned processes. You must also file your complete, independently reviewed benefit returns and forms on or prior to the filing deadlines applicable to your company. Aidaly is not responsible for your failure to receive a deduction, credit, discount (including any failure on your part to identify a referrer during the sign up process), promotional rate, or refund due to your non-compliance with the above requirements, or late or incomplete benefit filings, and any such failure does not relieve you of your payment obligations to Aidaly. If you choose to extend your benefit filing deadline, you will still be obligated to pay back any Program Advance on the schedule set forth in the applicable Program Order regardless of when you receive credits or other benefits from the applicable Program. Any information or documentation provided to you for a benefit credit Program is only to be used to establish such benefit credits on a timely-filed original income benefit return, and should not be used for purposes of claiming a refund or credit on an amended return.
Any advice or guidance given by or on behalf of Aidaly in connection with the Services or a particular Program is given solely for informational purposes and nothing provided by Aidaly should be construed as healthcare, finance, legal, accounting, or insurance advice. You should consult your lawyer, accountant, or insurance professional should you need such advice.
3. Customer Data.
3.1 Customer Data. As between you and Aidaly, you own all right, title and interest in and to your Customer Data. You hereby grant to Aidaly a non-exclusive license to access, process, use, copy, modify, create derivative works based on, and distribute your Customer Data to: (a) provide the Services, including through affiliated entities and third-party service providers, to you and your Authorized Users, and (b) to create Analytics Data (defined below). You are solely responsible for the content of your Customer Data. You represent and warrant that (1) you have, and will continue to have, during the term of this Agreement, all necessary rights, authority and licenses for the access to and use of your Customer Data as contemplated by this Agreement and the software and systems on or through which you have requested us to provide services; and (2) Aidaly’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between you and any third party. The Data Processing Addendum set forth in Exhibit A is hereby incorporated herein by reference.
3.2 Security; Backup. Aidaly will maintain (and will require its third-party service providers to maintain) reasonable administrative, physical and technical safeguards intended to protect the Customer Data against accidental loss and unauthorized access or disclosure, in accordance with applicable industry standards. Aidaly will follow its standard archival procedures for Customer Data. In the event of any loss or corruption of Customer Data, Aidaly will use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Aidaly. Aidaly will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by you or by any Authorized User or third party. AIDALY’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 3.2 WILL CONSTITUTE AIDALY’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA IN CONNECTION WITH THE SERVICES.
4. Fees & Payment.
4.1 Fees. You will pay the fees and charges stated in each Program Order for use of the Services with respect to each Program (“Platform Fees”). The Program Fee for each Program will be specified in the applicable Program Order and is payable and charged at the start of each month (or as otherwise specified in the Program Order) for the duration of the applicable Program Order Term (defined below). The Program Order may also include success fees or supplemental fees for additional services provided during the Term (“Supplemental Fees”).
4.2 Payment Terms. Unless otherwise specified in a Program Order, you agree to pay all Program Fees by credit/debit card or by bank transfer (ACH/wire). If you have provided us with credit/debit card details, we will charge that credit/debit card at the start of each month (or as specified in your Program Order) for the duration of the Term, for the Program Fees and the portion due for any applicable Supplemental Fees. If we issue an invoice to you, all invoices are payable as specified in the Payment Terms section of the applicable Program Order (or if not so specified, within thirty (30) days of issuance). All amounts are stated and shall be paid in U.S. dollars and are exclusive of benefits, duties, levies, tariffs, and other governmental charges (collectively, “benefits”). You are responsible for payment of all benefits and any related interest and/or penalties resulting from any payments made to us, other than any benefits based on Aidaly’s net income. All past due amounts will incur interest at a rate of 1% per month or the maximum rate permitted by law, whichever is less. Except as expressly set forth in this Agreement, all payments, once paid, are non-refundable. Additionally, you agree to pay or reimburse any costs (including attorney’s fees) Aidaly incurs to collect overdue payments (including Program Fees, Supplemental Fees, and Program Advances) from you.
4.3 Preliminary Non-Binding Estimates. Upon your signing up for a Program, Aidaly may present to you a preliminary estimate or target of the credits, refunds, saving benefits and any cash advances you may be eligible for. Any such estimates are non-binding and subject to revision after completion of the Qualification Process. If Aidaly’s final estimates of the Estimated Service Value and Program Advance after completion of the Qualification Process are different than the preliminary estimate provided by Aidaly, then you may cancel your Program Order within five (5) days after we notify you of the revised estimates, and no cancelation fees will be due. If Aidaly determines that you are not eligible for certain programs, credits, refunds, benefits or savings as a result of the Qualification Process, Aidaly may terminate the Program Order.
4.4 Fee Calculation and Reconciliation. The Platform Fee for each “Program” will be calculated as an Estimated Service Value required to complete the qualification process and participate in a Program as reflected in the Program Order provided to you. The calculated Platform Fee for each Program will be set forth in the applicable Program Order (the “Platform Fee”). Upon entering into a Program Order for a Program, you agree to pay Platform Fees based on the estimated time and effort determined during the Qualification Process.The Program Order for each Program may specify additional reconciliation events (“Reconciliation Event”), in addition to those below, that trigger the following reconciliation process. Upon the occurrence of a Reconciliation Event, Aidaly will calculate a new Program Value. For most Programs, a Reconciliation Event will be when your Eligibility or the Eligibility Criteria have changed. Notwithstanding any other provision of this Agreement: (i) any adjustments to, or denials of, any benefits, credits, or programs, other incentives and/or savings programs and services by any governmental/regulatory body shall not constitute a Reconciliation Event; (ii) no Reconciliation Event with respect to any Program shall occur after the date on which you begin receiving financial benefit from a Program; and (iii) in no event will you have any right to a full or partial refund of any Platform Fees if all or part of the Program Qualifications is not sustained by any applicable governmental/regulatory body.
4.5 Exceptions. The above reconciliation terms shall not apply and your Platform Fees will be calculated based on the Estimated Service Value if the Actual Program Value is less than the Estimated Service Value due to any of the following:false, inaccurate, or incomplete information you provide to Aidaly; your failure to correct and resolve errors in the applications prepared by Aidaly; your failure to follow instructions provided by Aidaly or to cooperate in the process to obtain credits or other benefits for you; your choice not to claim the full amount of a benefit or credit or other benefit for which you are eligible; oryour failure or delay in filing complete and accurate applications.
4.6. Advances. Concurrently to a Program, Aidaly may provide Cash Advances to qualified customers. The cash advance amount that you may receive each month is calculated based on a number of factors and not determined by the value of any benefits, credits, programs, incentives and/or savings, services, refunds or rebates, promotions, benefits, savings, or other Programs you may qualify for and wish to apply for, and/or participate in. You will be responsible for paying back the Advance based on the payback schedule for such Advance provided in the Program Order. In the event this Agreement is terminated or canceled prior to the end of the Term, you will be responsible for paying back each Advance in full within 30 days of cancellation.
5. Term and Termination.
5.1 Term. For each Program Order, the “Program Order Term” shall begin as of the effective date set forth on such Program Order, and unless earlier terminated as set forth herein, (i) shall continue for the initial term specified on the Program Order (the “Initial Program Order Term”), and (ii) following the Initial Program Order Term, shall automatically renew for additional successive periods of one year each without the application of any promotions or incentives applied to the Initial Program Order Term (each, a “Renewal Order Term”) unless either party notifies the other party of its intention not to renew no later than thirty (30) days prior to the expiration of the Initial Program Order Term or then-current Renewal Program Order Term, as applicable. This Agreement shall commence upon the effective date set forth in the first Program Order, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Program Order Terms (the “Term”).
5.2 Changes. At any time during the Term, Aidaly may adjust your Fees and Advances based on changes to estimated future benefits or target savings. If you choose not to continue using the Services after the change goes into effect, your right to use the Services will end and you will be required to pay any incurred Platform Fees and Supplemental Fees and pay back any Advances as per the terms in each original Program Order.
5.3 Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches this Agreement and fails to cure such breach within 10 business days after written notice thereof.
5.4 Cancellation Policy. (a) You may cancel any Program Order as outlined herein, but you will be required to pay in full the amount of any Advance provided in such Order within 30 days after cancellation. If you cancel a Program Order up to five (5) days after Aidaly provides you with a notice of commencement of the application process, you agree to pay any incurred Platform Fees and Supplemental Fees through the month of cancellation. If you cancel after that time, you agree to pay the full Platform Fees and Supplemental Fees as set forth in your Program Order.
5.5 Additional Remedies. Without limiting other available remedies, Aidaly reserves the right to suspend or disable you and/pr your Authorized Users’ access to the Services if any undisputed amounts payable under this Agreement become more than 30 days past due. Aidaly also reserves the right to suspend or disable access to the Services if Aidaly determines (in its sole discretion) that: (1) your or any Authorized User’s use of the Services disrupts, harms, or poses a security risk, or may cause harm, in each case to Aidaly, the Services or any third party; or (2) you or any Authorized User has used, or is using, the Services in breach of this Agreement; or (3) intend to commit abuse, fraud, or felony.
5.6 Effect of Termination. Upon any expiration or termination of this Agreement, your (and your Authorized Users’) right to access and use the Services will automatically terminate. Aidaly will have no liability for any costs, losses, damages, or liabilities arising out of or related to Aidaly’s exercise of its termination rights under this Agreement. Any payment obligations as of the expiration or termination will remain in effect. The obligations and provisions of Sections 2.3, 3, 4, 5, and Sections 6 through 13 (inclusive) will survive any expiration or termination of this Agreement.
6. Confidentiality.
6.1 General. Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business that is marked or identified as “confidential” at the time of disclosure, or that is described in this Agreement as confidential (“Confidential Information”) in connection with the use and/or performance of the Services. Customer Data is your Confidential Information. Aidaly Confidential Information includes the non-public portions of the Services and any related documentation and pricing information of Aidaly. During the term of this Agreement and for three (3) years thereafter, each party agrees to take reasonable precautions to protect the disclosing party’s Confidential Information from unauthorized disclosure, not to use such Confidential Information except as authorized or as necessary to perform its obligations under this Agreement, and to not disclose (without the disclosing party’s prior authorization, including any such authorization given under this Agreement) to any third person any such Confidential Information (other than on a need to know basis to the receiving party’s employees, consultants and service providers who are subject to confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as this Agreement), or as specifically permitted under this Agreement. Confidential Information does not include any information that the receiving party can show: (1) through no fault of the receiving party, is or becomes generally available to the public, (2) was in its possession or was known prior to receipt from the disclosing party, (3) was rightfully disclosed to it without restriction by a third party, or (4) was independently developed without use of any Confidential Information of the disclosing party. For the avoidance of doubt, Confidential Information does not include any information regarding the benefit treatment or benefit structure of any transaction. The receiving party may disclose Confidential Information if the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party will, unless prohibited by law or legal process, promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or limit the nature or scope of the information to be disclosed). Upon request following termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy all copies of the disclosing party’s Confidential Information in its possession or control, except that the receiving party may retain a copy of the disclosing party’s Confidential Information to monitor its compliance under this Agreement and to comply with applicable regulatory requirements. For purposes of clarity, Aidaly may retain any de-identified information or Analytics Data generated using Customer Data.
6.2 Consent. To Use or Disclose Customer Data. We cannot disclose your information to third parties, or use that information for purposes other than described in this Agreement, unless such disclosure or use is otherwise authorized by law or you consent to such disclosure or use.
6.3 Disclosure of Health and Financial Information Outside the U.S.. In the course of providing services to you under this Agreement, Aidaly may engage one or more independent contractors to assist Aidaly in providing such services, and any administrative, clerical or analytical functions related thereto.
Additionally, by agreeing to the Aidaly's Service Agreement and Privacy Policy, you understand that you are allowing known Payers and/or Providers to disclose all of the payment, engagement, and utilization information to Aidaly Corporation, Aidaly Care Services, Aidaly Care MSO or affiliate firms for the Medicaid Member who would be the care recipient, including data on certain conditions such as HIV/AIDS, Mental Health, Alcohol and Substance Abuse, and any otherwise Protected Data. You hereby authorize Aidaly Corporation, Aidaly Care Services, Aidaly Care MSO or affiliate firms to correspond and advocate on your behalf with impunity.
7. Ownership.
7.1 Aidaly Intellectual Property. As between Aidaly and you, Aidaly owns all worldwide right, title and interest in and to the Services, the Usage Data, and Analytics Data, including all Intellectual Property Rights therein. For purposes of this Agreement, “Intellectual Property Rights” means patent rights (including patent applications and disclosures), trademarks, copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
7.2 Feedback. If you provide any ideas, suggestions, or recommendations regarding the Services (“Feedback”), Aidaly will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, you grant to Aidaly a worldwide, perpetual, irrevocable, fully-paid up, royalty-free, nonexclusive license to use and exploit in any manner such Feedback.
7.3 Usage Data. You acknowledge and agree that Aidaly may generate data with respect to the use and performance of the Services (“Usage Data”) and may retain and use such Usage Data for its internal business purposes, such as developing and improving Aidaly’s products and services (including the Services).
7.4 Analytics Data. You acknowledge and agree that Aidaly may use the Usage Data and the Customer Data to create analytics, analyses, statistics, benchmarks, or other aggregated data and derivative works.
8. NO WARRANTY.
THE SERVICES ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. AIDALY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AIDALY OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Aidaly DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. You assume sole responsibility and liability for results obtained from the use of the Services and for conclusions drawn from such use. Aidaly will have no liability for any claims, losses, or damages caused by errors or omissions in any Customer Data or any results produced by the Services based upon Customer Data.
9. Limitation of Liability.
IN NO EVENT WILL AIDALY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL, OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, WHETHER OR NOT FORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT Aidaly HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. AIDALY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO Aidaly BY YOU FOR THE SERVICES DURING THE 12 MONTH PERIOD PRIOR TO THE FIRST CLAIM FOR LIABILITY HEREUNDER. The parties agree that the limitations and exclusions contained in this Section 9 and elsewhere in this Agreement will survive and apply even if any exclusive remedy specified in this Agreement is found to have failed of its essential purpose.
10. U.S. Government End Users.
The Services are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If access to the Services is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Services will be only those specified in this Agreement.
11. Indemnification.
You agree to indemnify and hold Aidaly and its licensors, suppliers, vendors, partners, and affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your violation of this Agreement, (b) any liens by third parties on your account, and (c) your use of the Services in any manner inconsistent with this Agreement.
12. Force Majeure.
Aidaly will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its reasonable control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, pandemic, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications services.
13. General.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any controversy or claim relating to the Agreement shall be settled by arbitration in San Francisco, California under JAMS’ Streamlined Arbitration Rules. The arbitrator(s) may award costs and attorneys’ fees to the prevailing party, and judgment on any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You may not assign or transfer this Agreement, or any rights granted hereunder, by operation of law or otherwise, without Aidaly’s prior written consent, and any attempt by you to do so, without such consent, will be void. Aidaly may freely assign this Agreement. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Program Order or to such other addresses as may be specified by either party to the other in accordance with this Section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement, together with the Program Orders, is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes any and all prior or contemporaneous agreements, proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Aidaly have executed a separate agreement governing use of the Services. Any terms or conditions contained in any purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Aidaly and will be deemed null. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
14. Contact Information.
If you have any questions regarding this Agreement, you may contact Aidaly at support@aidaly.com.
Exhibit A
Data Processing Addendum
This Data Processing Addendum (“DPA”) forms part of the attached Services Agreement (the “Agreement”) between you (“Customer”) and Aidaly.
1. Subject Matter and Duration.
1.1 Subject Matter. This DPA reflects the parties’ commitment to abide by Data Protection Laws concerning the Processing of Customer Personal Data in connection with Aidaly’s performance of its obligations under the Agreement. All capitalized terms that are not expressly defined in this DPA will have the meanings given to them in the Agreement. If and to the extent language in this DPA conflicts with the Agreement, this DPA shall control.
1.2 Duration and Survival. This DPA will become legally binding upon the effective date of the Agreement. Aidaly will Process Customer Personal Data until the relationship terminates as specified in the Agreement. Aidaly’s obligations and Customer’s rights under this DPA will continue in effect so long as Aidaly Processes Customer Personal Data.
2. Definitions.
2.1 “Customer Personal Data” means Personal Data Processed by Aidaly on behalf of Customer.
2.2 “Data Protection Laws” means all applicable data privacy, data protection, and cybersecurity laws, rules and regulations to which the Customer Personal Data are subject.
2.3 “Personal Data” shall have the meaning assigned to the terms “personal data” and/or “personal information” under Data Protection Laws.
2.4 “Process” or “Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
2.5 “Security Incident(s)” means the breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data attributable to Aidaly.
2.6 “Services” means any and all services that Aidaly performs under the Agreement, including through affiliated entities and third-party service providers.
2.7 “Third Party(ies)” means Aidaly’s authorized contractors, agents, vendors and third-party service providers (i.e., sub-processors) that Process Customer Personal Data.
3. Data Use and Processing.
3.1 Processing Customer Personal Data. Aidaly and its Third Parties shall Process Customer Personal Data only as specifically authorized by this DPA, the Agreement, or any applicable Program Order.
3.2 Authorization to Use Third Parties. To the extent necessary to fulfill Aidaly’s contractual obligations under the Agreement, Customer hereby authorizes (i) Aidaly to engage Third Parties and (ii) Third Parties to engage sub-processors.
3.3 Aidaly and Third-Party Compliance. Aidaly agrees to enter into a written agreement with Third Parties regarding such Third Parties’ Processing of Customer Personal Data that imposes on such Third Parties data protection and security requirements for Customer Personal Data.
3.4 Personal Data Inquiries and Requests. Where required by Data Protection Laws, Aidaly agrees to provide reasonable assistance and comply with reasonable instructions from Customer related to any requests from individuals exercising their rights in Customer Personal Data granted to them under Data Protection Laws (e.g., access, rectification, erasure, data portability, etc.). If a request is sent directly to Aidaly, Aidaly shall notify Customer without undue delay.
3.5 Sale of Customer Personal Data Prohibited. Aidaly shall not sell Customer Personal Data as the term “sell” is defined by the CCPA. Aidaly shall not disclose or transfer Customer Personal Data to a Third Party or other parties that would constitute “selling” as the term is defined by the CCPA.
3.6 Data Protection Impact Assessment and Prior Consultation. Where required by Data Protection Laws, Aidaly agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgment, the type of Processing performed by Aidaly requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
3.7 Demonstrable Compliance. Aidaly agrees to provide information that is reasonably necessary to demonstrate compliance with this DPA upon reasonable request.
3.8 Information Security Program. Aidaly agrees to implement commercially reasonable technical and organizational measures designed to protect Customer Personal Data consistent with Data Protection Laws.
3.9 Security Incidents. Upon confirming the existence of a Security Incident, Aidaly agrees to provide written notice without undue delay and within the time frame required under Data Protection Laws. Where possible, such notice will include all available details required under Data Protection Laws for Customer to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
3.10 Audits. Where Data Protection Laws afford Customer an audit right, Customer (or its appointed representative) may, not more than once annually, carry out an audit of Aidaly’s Processing of Customer Personal Data by having Aidaly complete a data protection questionnaire of reasonable length. Any such audit shall be subject to Aidaly’s security and confidentiality terms and guidelines.
3.11 Data Deletion. At the expiry or termination of the Agreement, Aidaly will, upon Customer’s request, delete or return all Customer Personal Data (excluding any back-up or archival copies which shall be deleted in accordance with Aidaly’s data retention schedule), except where necessary to monitor compliance with surviving contractual provisions, or where Aidaly is required to retain copies under applicable laws or regulatory requirements, in which case Aidaly will isolate and protect that Customer Personal Data from any further Processing except to the extent required by applicable laws.
4. Processing Details.
Subject Matter: The subject matter of the Processing is the Services pursuant to the Agreement.Duration: The Processing will continue until the expiration or termination of the Agreement.
Categories of Data Subjects: Data subjects whose Personal Data will be Processed pursuant to the Agreement.
Nature and Purpose of the Processing: The purpose of the Processing of Customer Personal Data by Aidaly is the performance of the Services.
Types of Customer Personal Data: Customer Personal Data that is Processed pursuant to the Agreement.