Terms and Conditions
Last Updated: February 10, 2020
1.1 “Authorized Users” shall mean those employees and customers of Customer and Customer’s affiliates who access the OneDay Software at Customer’s corporate headquarters or a Community for the Intended Use.
1.2 “Community” means a location, or portion of a larger location (e.g., a wing of a hospital), where healthcare is provided, including, but not limited to, hospitals, clinics, doctor’s offices, outpatient care centers, home health, acute care hospitals, and specialized care centers, such as behavioral health facilities, hospice centers, and psychiatric care centers.
1.3 “Confidential Information” shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
1.4 “Documentation” shall mean the user manuals and other written materials created by OneDay that describe the functionality and use of the OneDay Software, including any training manuals and how-to videos.
1.5 “Intended Use” means to access and use the OneDay Software to create branded videos for Customer’s business purposes, including marketing campaigns by Customer for advertising and promotion of Customer’s products and services on devices running iOS and Android operating systems.
1.6 “OneDay Software” means OneDay’s proprietary software, including OneDay’s mobile application that enables users to create custom branded videos (the “OneDay App”) and OneDay’s backend software, database, website, and related support services systems, as may be updated or modified from time to time (the “OneDay Platform”).
2. ACCESS AND USE
2.2 Usage Restrictions. Except as specifically granted in this Agreement, OneDay owns and retains all right, title, and interest in the OneDay Software, including the OneDay Platform, the OneDay App, and any and all related Documentation and materials. This Agreement does not transfer any ownership rights to Customer or any third party. Customer shall not modify, reverse engineer, or decompile the OneDay Software, or create derivative works based on the OneDay Software. Customer shall not provide access to the OneDay Platform or distribute the OneDay App to any persons or entities other than the Authorized Users. Customer may not sell the OneDay App to any person or make any other commercial use of the OneDay Software. Customer shall retain all copyright and trademark notices in the OneDay Software and Documentation. Customer will not knowingly take any action inconsistent with OneDay’s rights in and to the OneDay Software.2.3 Service Rules and Guidelines. Customer is responsible for all activities that occur in Customer’s account(s). Customer and all Authorized Users shall use the OneDay Software solely for the Intended Use as contemplated by this Agreement and shall not use the OneDay Software to: (a) collect information from its end-users in a manner that violates Customer’s privacy policies or is otherwise illegal; (b) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (c) interfere with or disrupt the integrity or performance of the OneDay Software or the data contained therein; (d) attempt to gain unauthorized access to the OneDay Software; or (e) interfere with another user’s use and enjoyment of the OneDay Software. Customer agrees not to use the OneDay Software, the OneDay Services or any information obtained through the OneDay Services for any unlawful or unauthorized purpose. Customer shall comply with the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations, 47 C.F.R. § 64.1200 et seq. and 16 C.F.R. § 310, including all applicable requirements regarding obtaining prior express consent before sending mobile messages using the OneDay Software, informing end users how frequent messages will be sent and that text message and data rates may apply, and providing end users the ability to receive help by texting HELP and to opt-out of receiving any further mobile messages on the OneDay Platform via one or more explicitly designated methods, which, at a minimum, shall include the following: (a) any opt-out keywords that are universally recognized, including, but not limited to, STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (b) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by Customer for the purpose of opting-out end users. Message frequency will match the frequency of resident life stories created by the assisted living facility or video sales requests to the living facility.
3. PROPRIETARY RIGHTS.
3.1 OneDay Technology. Subject to the rights granted in this Agreement, OneDay and/or its licensors (if any) retain all right, title and interest in and to the OneDay Software, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing. Customer shall have no rights to the OneDay Software for any purposes beyond the scope of the rights granted in this Agreement. All rights not expressly granted to Customer under this Agreement are hereby reserved.
3.2 Customer Data. Customer may provide to OneDay certain data and information about Customer and the Authorized Users (the “ Customer Data”). The Customer Data may be provided through the OneDay App or such other means that are accommodated by the OneDay Software. Customer owns all such Customer Data and OneDay obtains no ownership in any Customer Data under the terms of this Agreement. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of the Customer Data.
3.3 Creation of Custom Branded Videos. The OneDay Software allows Customer to create an unlimited number of custom branded videos (“Videos”). OneDay shall provide user-selectable options for music, questions (up to ten (10) questions per story), and themes ( e.g., color and font of slider images between videos) (collectively, the “Options”) for Customer to choose from for the Videos. Customer may also purchase rights to use other music within the OneDay App, subject to additional restrictions and fees. Customer’s addition of branding images, logos, and intro/outro images for use within the OneDay App are the sole responsibility of Customer. Upon request, OneDay will assist Customer in custom branding the user interface of the OneDay Software. Customer shall own the content and information that is created through Customer’s use of the OneDay Software, including the Videos (“Customer Content”). Notwithstanding the foregoing, Customer understands that Customer only owns the content within the Videos that is original to Customer. OneDay acknowledges that it has no right to use any Customer Content without the prior written approval of Customer.
3.4 Storage and Changes to Custom Videos. OneDay has arrangements with vendors who provide certain hosting and data storage services ( e.g., Amazon Web Services (“AWS”) cloud storage). To enhance the security and accessibility of the Videos, OneDay stores all Videos using AWS or another cloud-storage provider. Those companies are provided with Customer Data as part of the service for which they are hired, but are authorized to use Customer Data only as necessary to provide these services and are prohibited from using the information for any other purpose. Customer may make an unlimited amount of updates to stored Videos at any time. Updated Videos are normally pushed to the OneDay App within five business days.
4.1 Confidentiality. Each Party agrees that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party further agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, except as necessary to carry out its obligations and rights under this Agreement, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (d) to return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
4.2 Exceptions. The foregoing confidentiality obligations shall not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient without any use of or by persons who have access to the other Party’s Confidential Information; or (f) is approved in writing for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given notice to the other Party and shall have provided such assistance as may be reasonably requested to limit such disclosure.
5. WARRANTIES; EXCLUSION OF LIABILITIES.
5.1 OneDay Warranties. OneDay hereby represents and warrants that (a) the OneDay Software will perform substantially in accordance with the Documentation; (b) OneDay’s personnel with the requisite training, background, experience, and technical knowledge will perform the implementation and training, if any, in a professional and workmanlike manner, consistent with high professional and industry standards; and (c) OneDay uses commercially reasonable efforts to ensure the computing environments used by OneDay to provide the OneDay Software are free from all generally-known viruses, worms, Trojans and other “malware,” and that OneDay has deployed antivirus software. In the event of any breach of OneDay’s warranties set forth in this Section 5.1, Customer’s exclusive remedy shall be for OneDay to promptly replace the non-performing portion of the OneDay Software or re-perform any defective services. If OneDay is unable to replace the OneDay Software or re-perform the services within thirty days of notification by Customer of a defect, Customer’s sole remedy is to terminate this Agreement, at which time OneDay will refund a prorated portion of any prepaid Fees that remain unused following the date of termination.
5.2 Service Availability. OneDay agrees to maintain the accessibility and performance of the OneDay Software in a manner consistent with capacity and performance standards set forth herein. Upon request, OneDay will provide Customer with a list of minimum recommended and technical standards (including mobile device operating system versions) for Authorized Users to access and use the OneDay Software, and Customer acknowledges that optimal performance will not be available if recommended standards are not met by the Authorized Users. While OneDay will use commercially reasonable efforts to maintain access to the OneDay Software twenty-four hours a day, seven days a week, OneDay represents that access to the OneDay Software will be maintained at an availability standard of 99% as measured over the course of a calendar month, excluding Excused Downtime. Excused Downtime to the 99% service-availability standard includes scheduled maintenance, maintenance downtime to resolve extraordinary technical problems with the OneDay Software or the host operating environment, force majeure (including state or federally declared natural disasters in OneDay’s physical locations), or technical difficulties attributable to any non-OneDay computer hardware, or technical difficulties attributable to Customer’s interface with the OneDay Software unless such technical difficulties are the direct fault of OneDay. If OneDay fails to maintain the required level of availability in any month, Customer will be entitled to receive a credit against the next invoice in an amount equal to 10% of that portion of the fee corresponding to the month in which the failure occurred. Customer must request a credit within thirty days from the end of the month in which such failure occurred. The foregoing shall be Customer’s sole remedy and OneDay’s sole liability for breach of the performance standards set forth in this Section 5.2.
5.3 Customer Warranties. Customer hereby represents and warrants that it has all rights necessary to permit OneDay to perform its obligations and exercise its rights with respect to the Customer Data and Customer Content as contemplated by this Agreement, including all necessary permissions and consents from end users of Customer’s services to collect, use and disclose the Customer Data and Customer Content, as contemplated by this Agreement. The forgoing expressly includes any applicable obligations under GDPR or similar regulations, it being understood that, with respect to the Customer Data, Customer is the Data Controller (or equivalent) and OneDay is the Data Processor (or equivalent), as defined in the GDPR.
5.4 Customer Content. Customer warrants that it has the right and title to use any and all Customer Content, including any relevant trademarks and copyrights, which it uses in the OneDay Software. To the extent that the OneDay Software may be used to reproduce, modify, publish and distribute materials, it is licensed to Customer only for reproduction, modification, publication and distribution of non-copyrighted materials, materials in which Customer owns the copyright, or materials Customer is authorized or legally permitted to reproduce, modify, publish or distribute. In particular, if Customer intends to make any Videos publically available, Customer may need to obtain release authorization agreements from individuals depicted in such Videos. If Customer intends to use the OneDay Software as part of a mobile messaging campaign, Customer may need to obtain prior express consent from each end user before sending any mobile messages to such end users. If Customer is uncertain about Customer’s right to send mobile messages or to copy, modify, publish or distribute any materials, Customer should contact a legal advisor.
5.5 General Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOTH PARTIES DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR QUIET ENJOYMENT, AND THE ONEDAY SOFTWARE IS PROVIDED “AS IS”.
5.6 Exclusions of Remedies; Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO ONEDAY BY COMPANY UNDER SECTION 6.1 DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. The Parties acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in this Section 5 form an essential basis of this Agreement, and that, absent these disclaimers, exclusions and limitations of liability, the terms of this Agreement, including, the economic terms, would be substantially different.
5.7 NO LIABILITY FOR CARRIER-RELATED ISSUES. IN NO EVENT SHALL ONEDAY OR ANY MOBILE CARRIER HAVE ANY LIABILITY FOR ANY DAMAGES OF ANY KIND OR NATURE THAT ARISE OUT OF ACTION OR INACTION ON THE PART OF ANY TELECOMMUNICATIONS CARRIER, INCLUDING, BUT NOT LIMITED TO, A CARRIER’S FAILURE OR REFUSAL TO DELIVER MOBILE MESSAGES. Carriers are not liable for delayed or undelivered messages.
6.1 Fees. In consideration for the rights granted to Customer under this Agreement, Customer shall pay OneDay the monthly license fee for the number of Communities set forth in the Order Form (“Fee”), which amounts shall be due and payable within thirty calendar days after delivery of invoice by OneDay with respect thereto. Unless otherwise set forth in the Order Form, Customer will be responsible for paying the Fee for each of the Communities. All payments under this Agreement are to be in U.S. dollars.
6.2 Taxes. All amounts payable hereunder shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Unless Customer provides evidence of non-profit status, Customer will be responsible for payment of all such taxes (other than taxes based on OneDay’s income), if any, fees, duties and charges, and any related penalties and interest, arising hereunder.
6.3 Disputed Charges. Any payment dispute shall be notified in writing to the other Party within thirty days of any such payment. Payments shall be calculated based on records maintained by OneDay.
6.4 Late Payment. Any payment not received within thirty days after the invoice date will accrue interest at a rate equal to the lesser of 1.5% per month or the highest rate permitted by applicable law. If Customer is more than fifteen days delinquent in its payments, OneDay may, upon written notice to Customer, modify the payment terms to require advance payment for the full amount of the fees for the remainder of the Term, suspend Customer’s access to the OneDay Software, and/or require other assurances to secure Customer’s payment obligations due hereunder.
7. TERM AND TERMINATION.
7.1 Term. This Agreement will be effective as of the date both Parties sign the Order Form. Unless otherwise set forth in the Order Form, the license shall begin on the date the OneDay Software is delivered to Customer (“Delivery Date”) and will continue for twelve months (“Initial Term”), unless earlier terminated in accordance with this Section 7, and will automatically renew for successive one-year terms, unless either Party gives the other Party written notice of non-renewal at least thirty days before the end of the then-current term (the Initial Term, together with any renewal terms, collectively, the “Term”).
7.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty-day period.
7.3 Rights and Obligations upon Termination. Upon expiration or termination of this Agreement, all rights granted hereunder to Customer shall cease, and each Party shall promptly (a) return all Confidential Information to the other Party or purge, destroy or delete all copies of any Confidential Information, and (b) promptly remove the OneDay Apps as quickly as reasonably practical. In addition, upon termination of this Agreement for any reason or upon expiration, all licenses granted by each Party to the other Party hereunder, shall immediately terminate. If this Agreement is terminated by OneDay as a result of Customer’s breach, in addition to any other remedies that OneDay may have, all amounts owed by Customer and unpaid as of the date of such termination shall be immediately due and payable to OneDay. If this Agreement is terminated by Customer as a result of OneDay’s breach, in addition to any other remedies that Customer may have, OneDay shall refund a prorated portion of any prepaid Fees that remain unused following the date of termination. Any provision contained in this Agreement that, by its nature, is intended to survive expiration or termination shall so survive.
7.4 Termination and Customer Content. Customer agrees that OneDay’s obligation to maintain any of Customer’s proprietary content provided to OneDay or any user-generated content obtained under this Agreement shall not extend beyond the later of any termination or non-renewal of the Term. Upon expiration or termination, Customer’s access to the OneDay Software shall be immediately suspended; provided that, OneDay will make the Customer Content available for download in an “as is” condition for up to thirty days following expiration or termination.
8.1 OneDay Indemnification. OneDay will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that Customer's authorized use of the OneDay Software infringes any patent, copyright, or other intellectual property right of a third party, and OneDay will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If use of the OneDay Software is permanently enjoined for any reason, OneDay, at OneDay’s option, and in its sole discretion, may (a) modify the OneDay Software so as to avoid infringement; (b) procure the right for Customer to continue to use the OneDay Software; or (c) terminate this Agreement and refund to Customer a prorated portion of any prepaid Fees that remain unused following the date of termination. OneDay shall have no obligation under this Section 8.1 for or with respect to actions alleging infringement that arise as a result of (i) the combination of non-infringing items supplied by OneDay with any items not supplied by OneDay; (ii) modification of the OneDay Software by Customer or by OneDay in compliance with Customer’s designs, specifications, or instructions; or (iii) continued allegedly infringing activity by Customer after Customer has been notified of the possible infringement.
8.2 Customer Indemnification. Customer is responsible and indemnifies and holds OneDay harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Customer’s use of the OneDay Software, including, but not limited to any claim that arises under the TCPA and any claims for intellectual property infringement (trademark, copyright, or other) that relate to the Customer Content Customer uses, posts, or creates during its use of the OneDay Software); provided that, OneDay promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim.
9.1 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors, permitted assigns, and legal representatives. Neither Party may assign, sublicense, or otherwise transfer this Agreement, or any right granted or obligation imposed hereunder, in whole or in part, without the other Party’s prior written consent, which consent may not be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement in whole to an affiliate or a successor-in-interest in the event of a purchase or sale of all or substantially all of the assets, stock, or business operations, or any change of control, acquisition, merger, or consolidation of the Party into, by, or with such affiliate or successor-in-interest; provided that such entity has agreed to be bound by all the terms and conditions contained in this Agreement.
9.2 Notices. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand-delivered, sent by email with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service and addressed to the address listed in the Order Form.
9.3 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. All judicial proceedings regarding any dispute and/or controversy relating to this Agreement shall be initiated in the State or Federal courts sitting in the county of the non-initiating Party’s principal place of business, and each Party irrevocably submits to the jurisdiction and venue of any such court in any such proceeding.
9.4 Independent Contractor. Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither Party shall have the authority to enter into any contracts on behalf of the other Party.
9.5 Entire Agreement. This Agreement, along with the exhibits attached and referenced in this Agreement, constitutes the final and complete understanding between the Parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the Parties with respect to the subject matter contained in this Agreement. This Agreement may be modified at any time by OneDay to address changes in law, rule, or regulations, which updated version will be made available via the OneDay Software. All other changes to this Agreement must be contained in a writing signed by both Parties.