THIS ASP SERVICES ADDENDUM is subject to and made a part of the Agreement. Capitalized terms used and not defined in this Addendum have the meanings assigned to them in the Definitions Addendum at https://www.zolldata.com/legal
1. Applicability and Fees. This Addendum applies to the hosting and maintenance (the “ASP Services”) of ZOLL software, as modified, updated, and enhanced (the “Underlying Software”), for remote electronic access and use by Registered Users in substantial conformity with instructions for use of the ASP Services and the documentation and users manuals from time-to-time provided by ZOLL on the ZOLL Site (the “Instructions”), as listed in any Order that has not expired or been terminated in accordance with the Agreement. Fees for any ASP Services set forth in the Order for such ASP Services (the “ASP Services Fees”).
2. ASP Services. Subject to the terms and conditions of the Agreement, ZOLL will use commercially reasonable efforts to make the ASP Services available to Registered Users through the ZOLL Site over normal network connections in accordance with the Instructions, excepting downtime due to necessary maintenance and troubleshooting. Customer, not ZOLL, shall be responsible for controlling Registered Users and protection of confidentiality of its login identifications and passwords. Customer acknowledges that (i) it is responsible for maintaining its interface and connectivity to the ASP Services and (ii) any facilities used for provision of the ASP Services may be owned or operated by ZOLL, or a ZOLL affiliate or a third party, or any combination of such facilities, as determined by ZOLL. Customer acknowledges that ZOLL may modify and upgrade the ASP Services, on an ongoing basis, to improve or adapt the ASP Services. Without limiting the foregoing, ZOLL will have the right, in its sole discretion, to develop, provide and market new, upgraded or modified ASP Services to Customer, including adding, removing or modifying the functionality or features of the ASP Services accessible by Registered Users. ZOLL will use commercially reasonable efforts to notify Customer within a reasonable period of time prior to the implementation of such changes so that Customer is reasonably informed of alterations to the ASP Services that will affect the ASP Services and Customer’s use of them.
3. Access Software. Subject to the terms and conditions of this Agreement, ZOLL grants to Customer, during the Term, a non-exclusive, non-transferable, non-sublicensable license for Registered Users to access and use the ASP Services using the ZOLL software that Registered Users may download at the ZOLL Site to access the ASP Services, as modified, updated and enhanced (the “Access Software”), each as made available to Customer through the ZOLL Site, solely for Customer’s internal business purposes and solely in accordance with the Instructions.
4. Restrictions. Customer shall not, and shall not permit any third party to: (a) use, reproduce, modify, adapt, alter, translate or create derivative works from the ASP Services, Underlying Software, Access Software or Instructions; (b) merge the ASP Services, Underlying Software, Access Software or Instructions with other software or services; (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer or allow access to the ASP Services, Underlying Software, Access Software or the Instructions to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to alter or derive the Source Code for the ASP Services, Underlying Software or Access Software; (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the ASP Services, Underlying Software, Access Software or Instructions; or (f) otherwise use or copy the ASP Services, Underlying Software, Access Software, or Instructions in any manner not expressly permitted by the Agreement. Customer agrees not to use the ASP Services in excess of its authorized login protocols. Customer shall immediately notify ZOLL of any unauthorized use of Customer’s login ID, password or account or other breach of security. If Customer becomes aware of any actual or threatened activity contemplated by the restrictions on use set forth in this section, Customer will, and will cause Registered Users to, immediately take all reasonable measures necessary to stop the activity or threatened activity and to mitigate the effect of such activity including: (i) discontinuing and limiting any improper access to any data; (ii) preventing any use and disclosure of improperly obtained data; (iii) destroying any copies of improperly obtained data that may have been made on their systems; (iv) otherwise attempting to mitigate any harm from such events; and (v) immediately notifying ZOLL of any such event so that ZOLL may also attempt to remedy the problem and prevent its future occurrence.
5. Warranty. Subject to Customer’s payment of the Fees, ZOLL represents and warrants that during the Term that (i) ZOLL has the right to license the Access Software and Instructions and make the ASP Services available to Customer pursuant to this Agreement and (ii) the ASP Services, when used as permitted and in accordance with the Instructions, will materially conform to the Instructions. ZOLL does not warrant that Customer’s use of the ASP Services will be error free or uninterrupted. Customer will notify ZOLL in writing of any breach of this warranty, and request a correction of the warranted nonconformity. If ZOLL is unable to provide a correction or work-around pursuant to the terms governing the provision of the ASP Services after using commercially reasonable efforts, ZOLL may terminate this Agreement upon written notice to Customer. This Section 5 sets forth Customer’s exclusive remedy, and ZOLL’s entire liability, for breach of the warranty for the ASP Services contained herein. The warranty set forth in this Section 5 is qualified in its entirety by, and subject to, Section 3 of the Terms and Conditions.
6. Service Level Agreement.
6.1. Downtime. “Downtime”, expressed in minutes, is any time the ASP Services are not accessible to Registered Users.
6.2. Planned Downtime. “Planned Downtime” is Downtime during which ASP Services may not be available in order for ZOLL to continue to provide commercially reasonable services, features and performance to its customers. Planned Downtime includes, but is not limited to: (a) Standard Maintenance; and (b) Emergency Maintenance. “Standard Maintenance” is performed when upgrades or system updates are desirable (including, without limitation, standard software release and non-critical software updates). “Emergency Maintenance” is performed when a critical system update must be applied quickly to avoid significant Downtime (including, without limitation, hardware patches that address server vulnerabilities or a critical software update). Standard Maintenance may be performed weekly on Monday and Wednesday between the hours of 7 p.m. to 11 p.m. Mountain Time. ZOLL will provide Customer with notice at least 24 hours in advance of the Standard Maintenance. ZOLL will make reasonable efforts to notify the Customer of any Emergency Maintenance at least 30 minutes in advance.
6.3. Excused Downtime. “Excused Downtime” time is Downtime caused by: (a) services, software or hardware provided by anyone or any entity other than ZOLL (such as the cellular network carrier or the mobile handset provider), (b) software, services or systems operating outside of a ZOLL Site, including any software or systems operating on a Customer’s premises (including ZOLL software operating on such premises); (c) a Force Majeure Event or (d) Customer's failure to comply with its obligations under the Agreement or use of the ASP Services in ways that were not intended (including, without limitation, as a result of actions or omissions of a Customer’s representative in connection with any administrative rights, including database access rights, that a Customer requests be granted to such representatives when such Customer has elected to receive, and is receiving, Managed Services or otherwise).
6.4. Unplanned Downtime. Unplanned Downtime in a calendar month is expressed as a percentage calculated as follows:
6.5. Unplanned Downtime Goal. ZOLL shall provide the ASP Services such that there is less than 1% of Unplanned Downtime in a calendar month (the “Unplanned Downtime Goal”). The ASP Services covered by the Unplanned Downtime Goal are those for which Customer has paid all Fees when due and is using in the course of carrying out its normal business operations in accordance with the Agreement.
6.6. Incident Monitoring and Reporting. Problems with the ASP Services can be reported by Customer as provided in the Maintenance Services Addendum.
6.7. Revocation of Administrative Rights. Notwithstanding anything to the contrary in the Agreement, ZOLL may revoke administrative rights, including database access rights, if the use of any such rights results in (i) Downtime or (ii) more than five (5) Support Tickets.
6.8. Customer Content; Security; Backup.
6.8.1. Customer Content. As between ZOLL and Customer, and without limiting the rights of any patient, Customer will retain all right, title and interest in and to all data, information or other content provided by Customer in its use of the ASP Services (“Customer Content”); provided, however, that ZOLL may de-identify and use Customer Content for any lawful purpose consistent with all applicable law.
6.8.2. Security. Subject to Customer’s obligations under this Agreement, ZOLL will implement commercially reasonable security measures within the ASP Services in an attempt to prevent unlawful access to Customer Content by third parties. Such measures may include, where appropriate, use of updated firewalls, commercially available virus screening software, logon identification and passwords, encryption, intrusion detection systems, logging of incidents, periodic reporting, and prompt application of current security patches and virus definitions.
6.8.3. Backup of Customer Content. Although ZOLL will use commercially reasonable efforts to maintain the integrity of the Customer Content, to back up the Customer Content, and to provide full and ongoing access to the ASP Services, loss of access to the ASP Services and loss of Customer Content may occur. Customer will make provisions for additional back-up storage of any critical Customer Content and shall be responsible for compliance with all records retention requirements applicable to Customer. ZOLL will not be responsible for any loss, corruption of or inaccessibility of the Customer Content due to interruption in the ASP Services or otherwise arising out of circumstances not within ZOLL’s control.
6.8.4. Availability of Customer Content. It is Customer’s responsibility to maintain any Customer Content that it requires for archival purposes, ongoing management of its operations and compliance with applicable records retention requirements. Unless specified otherwise in the Agreement, ZOLL will store Customer Content, other than Inactive Customer Content as defined below (the “Active Customer Content”), in ZOLL’s working data set until the earlier of (i) with respect to RescueNet @Work, 13 months, and with respect to other ASP Services, five years (in each case calculated from the date of creation of such Customer Content, or ZOLL’s receipt of such Customer Content, whichever is later) or (ii) the expiration or termination of this Agreement or the Order or SOW under which such Active Customer Content was stored (the “Active Retention Period”). Upon the expiration of the Active Retention Period, ZOLL will notify Customer in writing and will provide Customer the option, which Customer shall exercise by informing ZOLL in writing, within 30 days of receiving the notice, that either (a) Customer wishes to receive Active Customer Content in a database determined by ZOLL in its sole and absolute discretion (a “Database”), or (b) Customer will pay ZOLL, at ZOLL’s then-current storage rates and upon ZOLL’s then-current terms and conditions, to continue to store the Active Customer Content. If Customer fails to exercise one of the foregoing options within such 30-day period, ZOLL will have the right to destroy the Active Customer Content. During the time ZOLL stores Customer Content for Customer hereunder, ZOLL may periodically identify Customer Content that has had no activity associated with it for at least 180 days (“Inactive Customer Content”) and will notify Customer in writing of its intent to remove the Inactive Customer Content from ZOLL’s working data set and destroy such data, unless Customer requests, in writing, within 30 days of receiving the notice from ZOLL, that either (z) Customer wishes to receive the Inactive Customer Content in a Database, or (y) Customer will pay ZOLL, at ZOLL’s then-current storage rates and upon ZOLL’s then-current terms and conditions, to continue to store such Inactive Customer Content. If Customer fails to exercise one of the foregoing options within such 30-day period, ZOLL will have the right to destroy the applicable Inactive Customer Content in its possession or under its control. Except for this Section 6.8.4, the terms of Section 6 of this Addendum (including, without limitation, the Unplanned Downtime Goal) do not apply to Customer’s access of Inactive Customer Content. Customer represents, warrants and agrees that it (A) is solely responsible for determining the retention period applicable to it with respect to Customer Content maintained by ZOLL; (B) has consulted with or has had the opportunity to consult with legal, information governance or records management professionals; and (C) is not relying upon ZOLL to assist with determining the records maintenance or retention requirements applicable to it.
6.8.5. Remedies. A “Service Credit” means a percentage of the monthly ASP Services Fee to be credited to Customer (subject to Customer’s written request therefor and ZOLL’s verification thereof) for any ASP Service for which the Unplanned Downtime Goal is exceeded in a calendar month. For any calendar month where the aggregate total of Unplanned Downtime for any ASP Service exceeds one percent ZOLL will provide a 10% Service Credit towards Customer's monthly ASP Services Fee for such ASP Service that was affected; provided, that Customer (i) requests such Service Credit in writing within 30 days of the end of the calendar month in which such Unplanned Downtime occurred, (ii) includes in such request the nature of, and date and time of such Unplanned Downtime and (iii) such Unplanned Downtime is verified by ZOLL. Such Service Credit will be applied to a future month's invoice for such ASP Services, which typically is two months later. Failure to submit a written request for Service Credit as provided in this Section 6.8.5 shall constitute a waiver of such Service Credit by Customer. Further, Service Credits shall not be issued if Customer is not current on all Fees due and payable.
6.8.6. Limitation on Remedies. The remedies set forth in this Section 6 shall be the Customers’ sole and exclusive remedies with respect to ZOLL exceeding the Unplanned Downtime Goal.
6.8.7. Modifications. Changes to this Section 6 may be made from time to time at ZOLL’s sole discretion. Customer will be notified of any such changes that are material.
7. Insurance Discovery, Insurance Verifier, Demographic Verifier and Self-Pay Analyzer. With respect to any use by Customer of Insurance Discovery, Insurance Verifier, Demographic Verifier or Self-Pay Analyzer, either separately or as part of RescueNet® Billing Pro, (a) Customer shall comply with all applicable federal, state and local laws, statutes, rules and regulations (“Applicable Laws”), which may include but are not necessarily limited to the Gramm-Leach-Bliley Act, Title V, Subtitle A, Financial Privacy, 15 U.S.C. § 6801-6809 and the rules and regulations promulgated thereunder (“GLBA”), the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. and the rules and regulations promulgated thereunder (“FCRA”), the Drivers Privacy Protection Act, 18 U.S.C. Section 2721 et seq. and the rules and regulations promulgated thereunder (the “DPPA”) and similar or associated state laws and regulations governing the use and disclosure of drivers’ license information, as they each may be respectively interpreted from time to time by competent legislative, regulatory or judicial authority; (b) Customer shall use Insurance Discovery, Insurance Verifier, Demographic Verifier and Self-Pay Analyzer only for permitted uses under, and shall maintain their confidentiality as required by, Applicable Laws; (c) without limiting the foregoing, Customer shall not request, obtain or use Insurance Discovery, Insurance Verifier, Demographic Verifier or Self-Pay Analyzer (i) for marketing purposes prohibited by GLBA or FCRA; (ii) to take any adverse action (as defined in FCRA) against any consumer (also as defined in FCRA) unless Customer complies with FCRA’s adverse-action notice requirements; (iii) with respect to information from motor vehicle records, for any purpose other than to verify the accuracy of personal information, and, if such information is not correct, to obtain correct information to prevent fraud, pursue legal remedies or recover on a debt or security interest, in each case as permitted by the DPPA; (iv) with respect to consumer reports and credit scores, for any purpose other than a one-time legitimate business need or other purpose permitted by, and in accordance with the confidentiality requirements of, FCRA, and not for model calibration, model development or reverse engineering; or (v) with respect to demographic data, for any purpose other than a one-time use in accordance with an exception set forth in Section 6802(e) of GLBA; (d) Customer expressly acknowledges and agrees that when Demographic Verifier or Self-Pay Analyzer to be provided to Customer under the Agreement uses reference services or consumer reports, ZOLL and its credit reporting agency data sources do not express any opinion regarding a Consumer's creditworthiness in rendering such Demographic Verifier or Self-Pay Analyzer; (e) FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18 OF THE UNITED STATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH; (f) Customer hereby confirms and designates ZOLL as Customer’s agent for the limited and sole purpose of, on Customer’s behalf, requesting, receiving, handling, processing and delivering Insurance Discovery, Insurance Verifier, Demographic Verifier and Self-Pay Analyzer to Customer; and (e) any incorporation or integration of Insurance Discovery, Insurance Verifier, Demographic Verifier or Self-Pay Analyzer into a product or service of Customer or a third party shall require the prior, written consent of ZOLL, which may be granted or withheld in ZOLL’s sole and absolute discretion,
8. End of Life. Notwithstanding anything to the contrary in the Agreement, ZOLL may cease providing any ASP Services upon at least six months advance notice to Customer.