Notice: Valio is not and is not intended to be a repository for any personal information or personal healthcare information.  Although Valio utilizes industry standard system security tools, we cannot be responsible for the risk of potential or actual disclosure of your information.  You represent and warrant to us that you will not provide us with any confidential information, personal information or personal health information, whether your own or any other person, without our prior written consent.  You acknowledge that your failure to adhere to the foregoing may cause us serious financial or other damage and therefore you agree that you will indemnify us against any breach by you or anyone in your organization of the foregoing.

1.              Subject of this Agreement

1.1.             This Agreement specifies the terms and conditions under which Valio, LLC (“Provider” or “Valio”) shall permit users to access and use the Valio Platform (the “Platform”). Users of the platform must also comply with the terms of use and privacy policy for the website.  In the event of any conflict between this agreement and the terms of use or privacy policy, this agreement will control. 

2.              Definitions

2.1.              “Applicable Requirements” means all laws, regulations, governmental or judicial rules, commercially reasonable technical or safety standards which relate to provision, receipt or use of the Platform, or are of general application to the Parties.

3.              Subscription to Use the Platform

3.1.             Provider hereby grants to Subscriber permission to use and access the Platform for its internal business purposes only, and to use any related documentation, manuals and/or instructions, information and data to the extent delivered in connection with or through the Platform during the subscription term selected by Subscriber upon registration (“Subscription”).   

4.              Platform Use and Restrictions

4.1.             Access to the Platform shall be enabled for each individual Subscriber user authorized to use the Platform (“User”) through the provision of login and password information (“User Credentials”).  Subscriber acknowledges and agrees, and shall inform each User that User Credentials may not be shared with any other User, entity or person. 

4.2.             Provider reserves the right to refuse to provide access to any specific individual or entity and Subscriber’s sole remedy in such event is for Subscriber to cease use of the Platform.

4.3.             Subscriber has no right, title or interest in the Platform or outputs thereof other than the permissions of the Subscription set forth herein.

4.4.             Subscriber acknowledges and agrees that the functionality available through the Platform may be changed from time to time by Provider in its sole discretion.  Additional functionality may require additional fees or terms. 

4.5.             Subscriber will not knowingly engage in or solicit or induce another to engage in the reverse engineering, copying, modifying or creating of derivative works of the Platform or any component thereof.

4.6.             The Platform may contain third party material or data. Nothing herein shall be construed as granting to Subscriber any rights or license to such third party material or data other than in connection with the authorized use of the Platform on the terms and conditions set forth herein.

4.7.             Subscriber shall use the Platform solely as permitted under the terms of this Agreement and limited to the permitted purposes under the Subscription. Subscriber may not use the Platform to operate and/or engage in a business competitive to Provider.

4.8.             Data input by Users into the Platform may or may not be stored by Provider, at its option, except as to any PHI or PI which shall be treated in accordance with the terms of this Agreement and subject to Applicable Requirements.

5.              Platform Intellectual Property

5.1.             All right title and interest in, including beneficial ownership of and intellectual property rights, including but not limited to copyright, in the Platform and components, modules or other parts thereof, the arrangement of data therein, and all associated documentation, is and shall remain the property of Provider, and none of the foregoing may be copied, reproduced, modified, published, posted, transmitted or distributed in any way without the Provider’s prior written consent.

5.2.             All rights in and to the names, marks, service marks and/or trademarks of the Platform are owned by Provider and all uses thereof shall inure to the benefit of Provider.  Subscriber may not use Provider’s marks, service marks, and/or trademarks in any manner, for any purpose without Provider’s express prior written consent.

5.3.             Subscriber shall not alter or remove any intellectual property notice or proprietary legend contained in or on the materials in or generated by the Platform without Provider’s prior written consent.

6.              Confidentiality

6.1.             During and subsequent to the Term of this Agreement, each Party will not disclose or otherwise make available Confidential Information, as defined herein,to any person or entity except those of such Party’s employees, attorneys, agents and consultants permitted to have access to such Confidential Information under this Agreement, and who have a need to know such Confidential Information in furtherance of the purpose of this Agreement.  Each Party shall protect such Confidential Information disclosed by one Party to the other to the same degree that it protects Confidential Information pertaining to its own business (but in no event using less than reasonable care) and will use Confidential Information solely as authorized herein.  Each Party may disclose this Agreement to its attorneys, accountants, consultants, and prospective acquirers or prospective Affiliates, and if otherwise required by law or court order, subject to an appropriate non-disclosure agreement, where possible.  In the event of any perceived required disclosure by one Party of Confidential Information owned soley by the other Party, by law or court order, the first Party shall provide advance written notice to the second Party prior to any such disclosure, to the extent legally permitted. 

6.2.             “Confidential Information” as used herein means (a) the Platform, its components and operation, and its documentation and arrangement of data; (b) this Agreement; (c) all information regarding this Agreement and the relationship between the Parties which is designated as confidential or should, given the nature of the information or circumstances of disclosure, be understood to be sensitive or confidential, including trade secrets, pricing, financial information, business plans, technical information and the identity of Provider’s customers; and (d) data or information provided by Subscriber to Provider in the course of using the Platform (“Subscriber Data”).  Confidential Information shall not include information that (i) is generally known to the public through no fault of the Party receiving such Confidential Information under this Agreement, (ii) was known to the Party receiving the Confidential Information  as demonstrated by evidentiary records of such Party, or (iii) is disclosed by a third party having no obligation, to the receiving Party’s knowledge, to protect against disclosure of such Confidential Information.

6.3.             PHI refers to “personal health information” as defined under the Health Insurance Portability and Accountability Act, as amended from time to time.

6.4.             PI refers to “personal information” consisting of information about an individual whose identity is apparent, or can reasonably be ascertained, from the information, and as defined by Applicable Requirements, as amended from time to time.

7.              Supply of Data Into Platform; Security

7.1.             Platform Data: The Platform may include, in addition to data from Provider, information from multiple sources, recast and organized by Provider (all collectively, the “Platform Data”). Provider represents and warrants that, to its knowledge, neither the Platform nor the Platform Data or its grant of the rights granted herein shall violate any Applicable Requirements, or infringe or violate any intellectual property or personal rights of any third party, and that to the extent any third party authorizations or consents are needed to provide the data, such authorizations have been obtained.  The Platform may contain third party material provided by Provider for use in connection with the Platform.  Nothing herein shall be construed as granting to Subscriber any rights or license to such third party material other than in connection with the intended and authorized use of the Platform on the terms and conditions set forth herein.  Provider makes no guarantees or promises of any kind concerning the accuracy of Platform Data. 

7.2.             Subscriber Data: Subscriber represents and warrants that Subscriber Data is input only for purposes of and in connection with use of the Platform, that Subscriber is fully authorized to provide same and use such material and/or data in the manner being used in connection with the Platform, that Subscriber will not knowingly input any material or data for a purpose which is or is likely to be deleterious to the Platform system, and that Subscriber shall not input or permit input of any PHI or PI into the Platform except pursuant to the terms for such information set forth herein.  Without limitation of other obligations herein and other remedies available to Provider, Subscriber will indemnify Provider against any breach of these representations.

7.3.             Tracking: Subscriber understands and agrees that Provider will track usage data for the purpose of billing under this Agreement, and may collect usage data and statistics to be used by Provider in connection with providing and/or improving the Platform. 

7.4.             Security: Provider hereby agrees that it shall implement and maintain appropriate and comprehensive security, encryption, technical and organizational measures in accordance with generally accepted industry standards and in compliance with all Applicable Requirements to protect Platform Data and Confidential Information against unauthorized or accidental loss, damage, modification or disclosure.  Provider does and shall take commercially reasonable steps to protect against viruses, malicious codes, disabling Platform, and the like (“Malware”); however, Provider shall not have any liability for any damage that might result from Malware unless Provider had specific knowledge that the Platform contained Malware and failed to notify Subscriber.  Subscriber’s use of the Platform is, except with respect to willful misconduct or willful failure to notify, at Subscriber’s own risk.  Except as specifically set forth herein, Provider gives no other warranties or representations as to the accuracy or reliability of the Platform Data. 

8.              Limitation of Liability

8.1.             Except with respect to damages arising from a breach of the Platform use restrictions herein: (i) in no event shall either party be liable to the other party for any indirect, special or consequential damages or lost profits or costs of cover arising out of or related to the use of the Platform, this Agreement or the performance or breach hereof, and whether arising from negligence, breach of contract or otherwise; and (ii) in no event shall Provider be liable to Subscriber for any damages resulting from or related to any failure of the Platform, including, but not limited to, loss of data, service outages, incorrect data, or delays.

8.2.             THE PLATFORM AND ANY SERVICES INCIDENTAL THERETO ARE PROVIDED “AS IS” AND PROVIDER MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY APPLICABLE OR CREATED BY OPERATION OF LAW, CUSTOM, TRADE USAGE OR COURSE OF DEALINGS. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF DEFECTS.  TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY PROVISION THAT MIGHT BE INTERPRETED TO THE CONTRARY IN THIS AGREEMENT, PROVIDER’S CUMULATIVE LIABILITY FOR ANY CLAIM SHALL NOT EXCEED THE FEES PAID TO PROVIDER IN THE YEAR PRECEDING THAT CLAIM.

9.              Indemnity

9.1.             Provider agrees to indemnify, defend and hold Valio and its affiliates and their respective officers, directors, employees, agents, successors and permitted assigns thereof (each of the foregoing being hereinafter referred to individually as the "Indemnified Party") from and against any and all Losses resulting from the injury of or damage to any person or real or tangible personal property to the extent such injury or damage as a result of the conduct of Subscriber. 

9.2.             Subscriber will indemnify, defend and hold harmless Provider  against Losses resulting from: (a) Subscriber’s violation of Applicable Requirements; and (b) Subscriber’s use of the Platform in a manner not permitted by this Agreement.

9.3.             For purposes of this Section, "Losses" shall mean all third party claims, losses, liabilities, damages and cost (including taxes), and all related costs and expenses (including reasonable attorneys' fees and disbursements and cost of investigation, litigation and settlement). 

9.4.             For any Losses subject to indemnity:

(i)                  the indemnified Party must notify the indemnifying Party of the Losses or potential Losses in writing as soon as reasonably feasible, provided that any delayed notice shall not invalidate the indemnity unless and to the extent the delay prejudices the indemnifying Party’s ability to defend against the Losses;

(ii)                the indemnifying Party has sole control of the defense and all related settlement negotiations, subject to the other terms of this Section;

(iii)               the indemnified Party must provide the indemnifying Party with the assistance, information, and authority reasonably necessary to provide the indemnity, with reasonable out-of-pocket expenses incurred by the indemnified Party to be reimbursed by indemnifying Party;

(iv)               the indemnifying Party shall not settle any claims without prior written approval of the Indemnified Party, which approval shall not be unreasonably withheld; and

(v)                 the indemnified Party shall have the opportunity to participate in its defense and to engage counsel of its own choice to be involved in the defense, at the indemnified Party’s own expense.   

9.5.             These indemnifications shall survive the expiration or termination of this Agreement consistent with applicable statutes of limitations.

10.           Termination 

10.1.         Obligations relating to indemnity, reconciliation and payment which arose during the Agreement’s Term shall survive termination until such obligations have been fully discharged.

10.2.         This Agreement may be terminated by Provider immediately if: (a) Subscriber fails to pay invoices when due; (b) Subscriber breaches any material term of this Agreement and such breach continues for a period of thirty (30) calendar days following notice by Provider to Subscriber of the asserted breach.

10.3.         This Agreement may be terminated by Subscriber immediately if Provider breaches any material term of this Agreement and such breach continues for a period of thirty (30) calendar days following notice by Subscriber to Provider of the asserted breach.

11.           General

11.1.         This Agreement and the License granted hereunder may not be transferred or assigned by Subscriber without prior written consent of Provider.

11.2.         If any provision of this Agreement is declared invalid or unenforceable, the remaining provisions of this Agreement shall remain in effect provided that the overall intentions of the Parties may be preserved. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the Parties agree to the exclusive jurisdiction of the courts located in Boone County in the state of Indiana with respect to any actions or claims arising out of this Agreement. 

11.3.         No waiver of any obligation, right of either Party or modification to this Agreement, whether explicit or by conduct, shall be effective unless in writing, executed by the Party against whom enforcement is being asserted. No waiver will imply the waiver of any other provision of this Agreement, or any subsequent waiver. 

11.4.         Each Party acknowledges that the other Party is an independent contractor and not an employee of such Party, and that the other Party is not the legal representative or agent of, nor does the other Party have the power to obligate, such Party for any purpose whatsoever.

11.5.         Without limitation of any other provision of this Agreement,  Subscriber agrees to reasonably cooperate with Provider by evaluating and providing feedback to Provider regarding any future substantively modified versions of Provider’s service.

11.6.         Notice.  Any notice required to be given hereunder shall be effective if transmitted via this address: subscription@myvalio.com.