SmartAction Terms & Conditions (Henry Schein)

SMARTACTION TERMS & CONDITIONS

In exchange for SmartAction LLC, a Delaware limited liability company (“Supplier”), agreeing to provide certain products and services (collectively, the “Products and Services”) of Supplier to you (“Client”) pursuant to the order form (“Order Form”) of Henry Schine Inc., a Delaware limited liability company, Client hereby agrees to all the following terms and conditions (collectively, the “Terms & Conditions”).  Supplier and Client may each be referred to herein as a “Party,” and collectively, as the “Parties.”  If any terms of the Order Form conflict with any terms of these Terms & Conditions, the terms of these Terms & Conditions shall control.

1. Billing and Collections. Client understands and agrees that Henry Schine Inc. and/or its affiliates, agents or designees (“HSI”) will exclusively handle all billing and collections activities with respect to the provision of Products and Services by Supplier.  Client shall timely make all payments with respect thereto directly to HSI and in accordance with the terms of the Order Form or any invoice of HSI.  Any failure by Client to make any required payments to HSI on a timely basis or any other breach by Client of any of HSI’s terms and conditions, including HSI’s Terms of Sale or any other provisions of the Order Form, or these Terms & Conditions will give Supplier the right to immediately terminate Client’s access to any or all Products and Services, and will give HSI the right to cause Supplier to terminate Client’s access to any or all Products and Services.

2. Ownership of Materials. The Parties acknowledge and agree that any materials prepared by Supplier in the course of providing the Products and Services shall not be considered “works made for hire” under the copyright laws of the United States and that any and all intellectual property, including and without limitation, any patent, industrial design, trademark (including scripts, customer call flows, and drafted customer interactions), copyright, trade secret, proprietary information, design, process, method, technique, procedure, or know-how created by Supplier in connection herewith shall belong exclusively to Supplier. Further, the Parties recognize that performance of Supplier hereunder will require the skills of Supplier and, therefore, Supplier shall retain the right to use, for any purpose, such “know-how,” ideas, techniques and concepts used or developed by Supplier in the provision of Products and Services.

3. Term; Termination.

• • Term. The Terms & Conditions shall be effective and binding upon Client from the date Client first receives any Products and Services until the date Client ceases receiving all Products and Services in accordance with the terms and conditions herein.
    
    
  • Termination. Either Party (except for Client if otherwise stated in the Order Form) may terminate the provision of Products and Services at any time following thirty (30) days’ prior written notice to the other Party if: (a) a petition under any bankruptcy law is filed by or against the other Party, (b) the other Party executes an assignment for the benefit of creditors, (c) a receiver is appointed for the other Party’s assets, (d) the other Party becomes insolvent or takes advantage of any insolvency or any similar statute, and/or (e) the other Party breaches a material term of these Terms & Conditions, provided that in the event of a breach, the breaching Party shall have the opportunity to cure such breach within ten (10) days’ notice by the non-breaching Party.  Notwithstanding any provision of these Terms & Conditions to the contrary, Supplier may immediately terminate the provision of Products and Services to Client for Client’s failure to make timely payments of all fees, expenses, and/or other amounts due and payable to HSI.

4. Confidential Information. In the course of the Parties’ business under these Terms & Conditions, a Party (the “Receiving Party”) may receive, learn, or otherwise have access to the other Party’s (the “Disclosing Party”) Confidential Information (as defined below).  Receiving Party shall keep such Confidential Information confidential and not disclose or use the Confidential Information for its own benefit or for the benefit of any third party (except as may be required for the provision of Products and Services or required by law). “Confidential Information”  is defined as any non-public information, documents or materials (i) which are identified by the Disclosing Party, at the time that they are made available, to be proprietary, or confidential or (ii) that the Receiving Party ought reasonable to have known was confidential regardless of any such identification as such (including, without limitation, rates or fees for Products and Services, and the other terms of these Terms & Conditions).  The Parties agree that Confidential Information shall not include, nor shall the confidentiality obligations in the preceding sentence extend to any information, documents, or materials that: (a) become publicly available without breach of these Terms & Conditions or the Order Form, (b) are received from a third party without restriction or breach of any agreement, or (c) are independently developed without reference to information received hereunder from the Disclosing Party, or (d) the Receiving Party is required by law, regulation or court order to disclose Confidential Information provided that the Receiving Party will promptly notify the Disclosing Party in writing prior to making any such disclosure in order to facilitate the Disclosing Party’s seeking a protective order or other appropriate remedy from the appropriate body at its own expense.  All such obligations under this Section 4 shall remain in effect upon the expiration or termination of these Terms & Conditions in perpetuity, unless one of the exceptions set forth above becomes applicable to the applicable Confidential Information.  The Parties acknowledge that the Disclosing Party may not have an adequate remedy in the event that the Receiving Party breaches its confidentiality obligations and that the Disclosing Party may seek an injunction or other similar equitable relief without posting a bond or other similar security requirement.

5. Indemnification; Limitation of Liability.
   • Indemnification by Client. Client shall indemnify, defend and hold harmless Supplier and its parent, subsidiary and affiliated companies, subcontractors, and each of their respective employees, officers, directors, shareholders, licensees, managers, members, representatives, agents, successors and assigns (each a “Supplier Indemnitee”) from and against all claims, proceedings, causes of action, liabilities, losses, damages or expenses, including, without limitation, reasonable attorneys’ fees and costs, that any Supplier Indemnitees may incur as the result of any claim, suit or proceeding brought or threatened arising out of: (i) the operation of Client’s business; (ii) Client’s gross negligence or willful misconduct; (iii) Client’s breach of any provision, covenant, warranty, or representation set forth in these Terms & Conditions; (iv) information supplied to Supplier by or through Client, (v) elements of the Products and Services provided by, or created in accordance with specific instructions from Client or its agents, or (vi) the Products and Services to the extent modified by Client or its agents.
   • Indemnification by Supplier. Supplier shall indemnify, defend and hold harmless Client and Client’s parent, subsidiary and affiliated companies, and each of their respective employees, officers, directors, shareholders, licensees and agents (each a “Client Indemnitee”) against all claims, proceedings, causes of action, liabilities, losses, damages or expenses, including reasonable attorneys’ fees and costs, that any Client Indemnitee may incur as the result of any third party claim, suit or proceeding brought or threatened against Client for: (i) Supplier’s gross negligence or willful misconduct in the provision of the Products and Services and/or (ii) Supplier’s breach of its representation or warranties under these Terms & Conditions; provided, however, that such indemnification will not apply to (i) elements of the Products and Services provided by or created in accordance with specific instructions from Client or its agents; or (ii) Products and Services to the extent modified by Client or its agents.
   • Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST PROFITS, GOODWILL, SAVINGS, OR USE, OF ANY KIND OR NATURE ARISING OUT OF, OR RELATING TO THE PERFORMANCE, BREACH, OR TERMINATION OF THE PROVISION OF PRODUCTS AND SERVICES, WHETHER SUCH DAMAGE OR LOSS IS FORESEEABLE OR NOT, WHETHER THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF OR NOT, AND WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE.  
6. No Technology License. Client acknowledges that the provision of Products and Services to Client is not a technology license agreement, and Client does not have any right to use any proprietary software or other technology developed and used by Supplier to render the Products and Services hereunder.

7. Client Responsibilities. In addition to any obligation and responsibilities described elsewhere in these Terms & Conditions, Client shall have the following responsibilities (the “Client Responsibilities”):

• • Where Supplier is performing outbound calling on behalf of Client, for purposes of the Telephone Consumer Protection Act (47 U.S.C. § 227) and the rules (47 C.F.R. §64.1200 et seq.) implemented thereunder by the Federal Communications Commission (as may be amended from time to time, the “TCPA”), Client shall be solely responsible for all TCPA compliance, other than Supplier’s responsibilities stated below, including, but not limited to, obtaining from any person called pursuant to these Terms & Conditions, prior express written consent of the person called that clearly authorizes the Client (1) to initiate a telephone call, using an automatic telephone dialing system or artificial prerecorded voice, to a cellular or residential telephone number, or any service for which the called party is charged for the call, of the person called; (2) to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered; (3) to collect personal information from the person called for the purposes of providing the Products and Services to Client, including but not limited to, name, phone number, address, insurance policy number, payment information, or any other information requested by Client; and to provide to Client, any information collected on behalf of Client.
  • For purposes of the Fair Debt Collection Practices Act (15 U.S.C. § 1692), any state law equivalents, and any rules and regulations implemented thereby or promulgated with respect thereto (as may be amended from time to time, the “FDCPA”), Client shall inform Supplier in writing if the Products and Services relate to the collection of any debts owed or due or asserted to be owed or due and shall be solely responsible for ensuring compliance with the FDCPA.
  • To undertake the responsibility of ensuring the ongoing compliance with all applicable federal and state laws or laws of any other jurisdiction governing outbound calling, and the electronic recording of telephone conversions, Client shall be solely responsible for establishing, updating, and maintaining proper procedures to ensure full legal compliance therewith, including, but not limited to, the inclusion and ongoing maintenance of all necessary language, notice of disclosures as required by law, either within conversation flows, or, with respect to calls transferred to Supplier, preceding Supplier’s receipt of the call.
  • Client is responsible for all federal, state, and local laws as it relates to the recording or monitoring of telephone conversations, and shall comply with all applicable law in the use of the Products and Services provided to Client.

8. EU Data Protection Law. To the extent that European Union Data Protection Laws apply to Client, or if Client is contractually or otherwise obligated to comply with such Data Protection Laws, Client shall notify Supplier and agree to execute a separate Data Processing Addendum as jointly agreed to which shall apply to Supplier’s Processing of Personal Data, if any, as set forth in the Data Processing Addendum.

9. NO WARRANTIES. SUPPLIER DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS AND SERVICES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND SUPPLIER DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING HEREIN, SUPPLIER IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS.  SUPPLIER SHALL NOT BE LIABLE FOR ANY DAMAGE (INCLUDING FOR LOSS OR CORRUPTION OF DATA), OR RESPONSIBLE FOR RESTORATION OF SUCH DATA, IN EACH CASE TO THE EXTENT SUCH DAMAGE RESULTS FROM CLIENT’S INSUFFICIENT TESTING OF ANY ON-PREM SOFTWARE PRIOR TO DEPLOYMENT IN A LIVE ENVIRONMENT.
10. Miscellaneous.
    • Representations and Warranties. Each Party represents and warrants to the other Party that it has the full authority to enter into and perform these Terms & Conditions, and Client additionally represents and warrants to Supplier that (i) the provision of the Products and Services as instructed by Client will not create any liability for Supplier and (ii) Client has obtained all consents and approvals required from third parties to receive the Products and Services.
    • Governing Law. The Parties expressly agree that all the terms and provisions hereof shall be construed in accordance with and governed by the laws of the State of California, without giving effect to conflict of laws principles. The Parties expressly agree to submit to the exclusive jurisdiction and venue of the state or federal courts in Los Angeles, California. 
    • Dispute Resolution. If any dispute, controversy or claim (collectively, “Dispute”) develops between the Parties with respect to any matter arising out of or relating to these Terms & Conditions, the formation or validity thereof, performance hereunder, or the breach hereof which the Parties do not promptly resolve, the Parties shall appoint a senior management representative to negotiate a non-binding resolution upon formal written notice of such a Dispute, and for a period of thirty (30) days from the date of formal written notice from one Party to the other of a Dispute, attempt in good faith to resolve such Dispute.  If the Parties do not agree on a resolution to such Dispute during such thirty (30) day period, then either Party may bring legal action with respect to such Dispute.
    • Attorney Fees. If any legal action or other proceeding is brought to enforce any provision of these Terms & Conditions, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action of proceeding, in addition to any other relief to which the prevailing party may be entitled.
    • Force Majeure. If either Party is unable to fulfill its obligations hereunder or unable to fulfill its obligations in a timely matter because of a Force Majeure Event (excluding the failure to make payments as required hereunder and in the Order Form), such failure will not be treated as a breach of these Terms & Conditions, provided that the Party promptly informs the other Party of the reason or reasons for such delay.  The term “Force Majeure Event” shall mean an act of war or terrorism, a riot, civil disorder, or rebellion, a fire, flood, earthquake or similar act of God or a strike, lockout, similar labor dispute, or other factors or forces outside of the Parties’ reasonable control.
    • Relationship of the Parties. Nothing contained in these Terms & Conditions shall create any partnership, joint venture, agency, or other employment relationship between the Parties, and the Parties enter into this arrangement as independent contractors.  The provision of Products and Services are the sole and exclusive responsibility of Supplier, not HSI (except for HSI’s responsibility to provide initial troubleshooting services to Client), and Client shall look solely to Supplier with respect to the Products and Services (except with respect to HSI’s responsibility to provide initial troubleshooting services to Client or other obligations of HSI set forth hereunder).
    • Assignment; Successors. These Terms & Conditions may not be assigned by either Party (whether directly or indirectly, by operation of law or otherwise) without the prior written consent of the other Party, and any such purported assignment shall be void; provided, however, that Supplier may assign these Terms & Conditions to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or ownership interest without Client’s consent.  These Terms & Conditions shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
    • Entire Agreement. These Terms & Conditions, together with any applicable Order Form, constitutes the entire agreement between the Parties and is a complete and exclusive statement of the terms of these Terms & Conditions and supersedes all prior agreements and communications, written or oral, with respect to the subject matter hereof. These Terms & Conditions may not be modified nor may any right of a party be waived orally, but only by a writing signed by both Parties.  All applicable Order Forms are incorporated herein.
    • Non-waiver. No delay or failure on the part of either Party in exercising any right hereunder, and no partial or single exercise thereof, will constitute a waiver of such right or of any other right hereunder.
    • Headings. Headings in these Terms & Conditions are for convenience only and are not to be used for interpreting or construing any provisions hereof.
    • Severability. If any provision of these Terms & Conditions is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
    • Notices. All notices under this Terms & Conditions must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each Party at Client’s address provided on the most recent Order Form and Supplier’s address located at SmartAction LLC, 777 Taylor Street, Penthouse 1-B, Fort Worth, TX 76102, e-mail: contracts@smartaction.com.
    • Survival. The rights and obligations of the Parties hereto which by their nature must survive termination of the provision of Products and Services in order to achieve its fundamental purposes shall survive any termination of the provision of Products and Services.