Third Party Use Agreement

 

This Third Party Use Agreement (“Agreement”) is effective upon execution of the agreement between Customer (“End Customer”) and PlayMaker Health, a wholly owned subsidiary of Trella Health, LLC (“PLAYMAKER”) by and among PS DataInsights (“PSD”), a corporation, a Pennsylvania limited liability company, (hereafter referred to as “Vendor”) with offices at 500 Office Center Drive, Suite 400, Fort Washington PA 19034, and Customer (“End Customer”), and PlayMaker Health (“PLAYMAKER”) with its principal place of business at offices located at 3340 Peachtree Rd NE, Ste. 2450, Atlanta, GA 30326.

 

Whereas, PSD provides certain Data to End Customer pursuant to its agreement with PLAYMAKER. Upon execution of this Agreement by authorized officers of each of the parties, this Agreement constitutes PSD’s prior written consent to PLAYMAKER to provide End Customer access to Data and for End Customer to Use the Data subject to terms and conditions contained in this Agreement.

 

1. End Customer’s Use of Data. Under no circumstances shall End Customer use any of the Data for any benefit other than its own internal purposes. PSD shall have no obligation to support End Customer use of the Data.
2. Confidentiality. End Customer shall at all times comply with the confidentiality obligations set forth in the Agreement between End Customer and PLAYMAKER. End Customer acknowledges and agrees that Data will only be used internally within the confines of End Customer’s organization. For the avoidance of doubt, no part of the Data shall be: (a) published by End Customer, (b) quoted, made or reproduced by End Customer for advertising, promotional or public relations purposes, (c) reproduced by End Customer except as expressly provided herein; or (d) used in any legal proceedings, except where the production of any such Data is compelled under process or request by a court or administrative agency of competent jurisdiction, in which event End Customer shall promptly give notice of such process, adhere to PSD’s policies governing the use of PSD data in litigation, and cooperate with PSD in obtaining a protective order or other mechanism for the protection of any such Data.
3. Term and Termination. The initial term of this Agreement shall begin on the effective date of this Agreement and end upon the termination of PLAYMAKER’s services to End Customer relating to the use of the Data. Prior to termination, End Customer shall destroy or return to PLAYMAKER all Data in End Customer’s control or possession.
4. Limitation of Liability. End Customer acknowledges and agrees that PSD shall have no liability to End Customer under this Agreement, including by not limited to, any liability arising from the inaccuracy or incompleteness of the Data. In no event shall PSD be liable for any incidental or consequential damages, including but not limited to, lost business, lost profits or third-party claims, whether foreseeable or not, even if PSD has been advised of the possibility of such damages. The parties acknowledge and agree that a breach by End Customer of the provisions of Paragraph 2 above will cause PSD and/or its respective affiliates irreparable injury and damage which may not be compensable by money damages, and, therefore, End Customer agrees that PSD or its respective affiliates shall be entitled to injunctive or other relief to prevent such a breach and to secure enforcement of Paragraph 2 in addition to any other remedies which may be available. Without limiting the availability to PSD of any other rights or remedies, if End Customer breaches any of the terms of Paragraph 2 above, PSD reserves the right to immediately terminate this Agreement upon notice to End Customer. ANY DATA PROVIDED TO END CUSTOMER IN CONNECTION WITH THIS AGREEMENT IS PROVIDED TO END CUSTOMER “AS-IS” AND PSD MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO END CUSTOMER IN CONNECTION WITH SUCH DATA, INCLUDING THE IMPLIED WARRANTIES OR MERCANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Indemnification. End Customer agrees to indemnify PSD and hold PSD harmless for any and all claims, damages, costs, demands, or other liabilities (“Claims”) arising from or relating to any breach of this Agreement, including reasonable attorney’s fees.
6. Notices. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received upon receipt if delivered (personally, by courier service such as Federal Express, or by other messenger), or three (3) days after being mailed by certified m ail, postage prepaid, return receipt requested, addressed to the addresses set forth above. Any party may alter the address to which communications are to be sent by giving notice of such change of address in conformity with the provisions of this paragraph for the giving of notices.
7. Miscellaneous. This Agreement sets for the entire agreement between the parties and supersedes prior proposals, agreements and representations related to the subject matter of this Agreement, whether written or oral. No modifications, amendments or waiver of any of the provisions of this Agreement shall be binding upon the parties unless made in writing and duly executed by authorized representatives of PLAYMAKER, End Customer and PSD. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. The headings of the paragraphs hereof are used for convenience only and shall not affect the meaning or interpretation of the content thereof. This Agreement and the relationship of the parties in connection with the subject matter of this Agreement shall be governed by and determined in accordance with the laws of the State of Delaware. The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other parties of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement (or any part hereof), or the right of any of the parties thereafter to enforce each and every provision in accordance with the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by any judgment of a tribunal of competent jurisdiction, the remainder of this Agreement shall not be affected by such judgment, and the Agreement shall be carried out as nearly as possible according to its original terms and intent. However, if the original intent of the parties cannot be preserved, this Agreement shall terminate upon the effective date of such judgment.